
    Calvo v. Matos.
    Appeal from the District Court of Arecibo.
    No. 65.
    Decided October 26, 1903.
    Appeal in Cassation — Execution op Judgment. — Ad appeal in cassation will not lie from an order in proceedings for the execution of a judgment unless substantial points are decided which are not controverted in the action or decided in the judgment or which are contradictory thereto.
    Appeal. — The foregoing doctrine is also applicable to actions on appeal according to the provisions of an act to establish the Supreme Court as a court of appeals, which provides that in all cases where reference is made in the Law of Civil Procedure to appeals in cassation, the same shall be construed as meaning appeals.
    STATEMENT OP THE CASE.
    In proceedings for the execution of a judgment rendered in an action prosecuted in the District Court of Arecibo by Julio Calvo y Morales against Manuel Matos, for the recovery of a debt, pending before us on appeal in cassation for error of law, now appeal, taken by the defendant and prosecuted on his behalf by his counsel, Antonio Alvarez Nava and afterwards continued by Jacinto Texidor, Esq., the respondent being represented by his counsel Juan R. Ramos.
    Preliminary proceedings having been instituted on August 7, 1897, in the former Court of First Instance of Utuado, by Julio Calvo y Morales against Manuel Matos, for the recovery of two thousand nine hundred and ninety pesos, the aggregate amount of two matured promissory notes and interest accrued thereon, a writ of' attachment was issued on the debtors property, the same being levied on a farm containing one hundred and forty cuerdas, situated in barrio “Salto Abajo”, within the municipal district of Utuado. The complaint having been filed as an ordinary action, the case was duly prosecuted in the District Court of Arecibo, which rendered judgment on March 7, 1900, the defendant, Manuel Matos, being adjudged to pay the amount claimed, with interest and costs, from which judgment he took an appeal in cassation for error of law, which was dismissed by the Supreme Court on March 4, 1901, with costs against appellant.
    Upon the institution of compulsory proceedings for the execution of the judgment, the creditor, Julio Calvo, prayed that the property of the debtor he levied upon in a sufficient quantity to cover the two thousand nine hundred and ninety pesos claimed, besides interest and costs, which petition was granted in an order dated June 28 of the said year. An attachment having been levied on the same farm upon which an attachment had been provisionally levied, and on two houses in addition thereto, which stood on the premises, the debtor filed a petition on August 24 following, praying that the first attachment levied on his property be'dissolved, which petition, after hearing the creditor, Julio Calvo, was denied by an order dated the 30th of the same month, and having moved for a reconsideration thereof, said motion, after being duly heard, was denied by an order dated September 20 following.
    At this state of the execution proceedings,, the debtor, Manuel .Matos, through his counsel, moved that before proceeding with the main question, the two attachments levied on his property be declared null and void as also the proceedings had after the constitution of the last attachment, alleging that although the increase of the attachment is admissible in the cases referred to in article 1453 of the Law of Civil Procedure, in the cáse at bar it was not properly a question of an increase of attachment, which had neither been called for nor decreed as such, but of two different attachments, levied upon the same property to guarantee the same obligations, and therefore the second left the first without effect, because under the provisions of the law of procedure, two attachments cannot subsist at the. same time under the conditions above set forth; that in the second attachment a stranger had been appointed as trustee, thereby contravening the provision of General Order No. 57, according to which such appointment should always be made in the person of the owner of the attached property, and that in the order to the Registrar of Property, directing a cautionary notice of attachment to be made, five hundred dollars had been assigned for the costs, whereas no decree had issue from the court authorizing such an item. For all of which reasons both attachments,should be declared null and void as also the proceedings had subsequently to the last attachment. This motion was dismissed by an order dated October 1 of the same year and an application for a reconsideration thereof was also dismissed by an order dated October 3.
    From both of said decisions counsel for Manuel Matos took an appeal in cassation for error of procedure and at the same time for error of law, the former of which appeals was dismissed by judgment of this court rendered on October 30, 1902.
    The appeal in cassation for error of law having been allowed, the hearing took place on October, 23, and counsel for respondent being present argued the case.
    
      Mr. Alvarez Nava and Mr. Texidor, for appellant.
    
      Mr. Ouevillas and Mr. Ramos, for respondent.
   Mk. Justice Sulzjb acher,

after making the above statement of facts, delivered the opinion of the court as follows:

According to article 1693 of the Law of Civil Procedure, an appeal in cassation will not lie from an order in proceedings for the execution of judgments, unless substantial points are decided which are not controverted in the action,nor decided in the executory judgment, or which are contradictory thereto.

Such being the case, the appeal in cassation taken by Mannel Matos does not lie, inasmuch as in the orders appealed from no substantial point is finally disposed of, nor is a decision given contradictory to the judgment, the same being limited to the dismissal of a motion for a special decision regarding the nullity of the attachments and other proceedings had for the execution of the judgment.

The foregoing legal grounds are applicable to this case on appeal, for according section 4 of the Act of March 12, 1903, establishing the Supreme Court of Porto Rico as court of appeals, in all cases where reference is made in the Law of Civil Procedure to appeals in cassation the same shall be construed as meaning appeals.

We adjudge that we should declare, and do declare; that the appeal in cassasion for error of law, now appeal, taken by Manuel Matos, does not lie, and tax the costs against him, the decisions appealed from, therefore, to stand as final. This decision is ordered to be communicated to the District Court of Arecibo, to which the record is to be returned for the proper purposes.

Chief Justice Quiñones, and Justices Hernández and MacLeary, concurred.

Mr. Justice Figueras did not sit at the hearing of this case.  