
    Egozcue v. Belaval.
    Appeal from the District Court of Ponce.
    No. 75.
    Decided February 27, 1904.
    Personal Action' — Mixed Action. — An action for the recovery of losses and damages caused to urban real property is personal, and in order to convert it into a mixed action it is neeessary that tbe claim be extended to tbe recovery of tbe property itself, in wbieb case tbe action partakes of tbe double character of real and personal.
    Id. — Jurisdiction.—Exeept in cases of express and implied submission in personal actions, the competent judge shall he that of the place where the obligation is to he performed, and, in his absence, that of the domicile of the defendant or of the place of the contract, if said defendant he found there,, even accidentally, and the process can he served upon him.
    STATEMENT OE THE CASE.
    This is a question of jurisdiction pending before ns on appeal in cassation for error of law taken by counsel for José Sastraño Belaval, in inhibition proceedings instituted by him in the District Conrt of Ponce in connection with the declaratory action brought against him in the District Court of San Juan by Manuel Egozcue y Cintron for the recovery of damages, both the appellant and respondent having appeared before this Supreme Court.
    On June 20, 1902, Manuel Egozcue y Cintron, of this city, instituted a declaratory action in the District Court of San Juan against José Sastraño Belaval, of Ponce, for the recovery of the sum of two thousand dollars as losses and damages caused to houses of the former by the re-construction by the defendant of a house contiguous thereto, without heretofore having, been compensated for said losses and damages, amounting to said sum of two thousand dollars, to the payment of which, with costs, he asked that the defendant should be condemned, a summons to be issued citing the defendant to appear.
    José Sastraño Belaval having been summoned to appear within twenty days to answer the complaint, he applied to the District Court of Ponce for a writ forbidding the -San Juan court from taking cognizance of the case, inasmuch as in the complaint it was sought to maintain a personal action and that city was the domicile of the petitioner; he cited rule 1 of article 62 of the Law of Civil Procedure, according to which the payment must be made at the place where the obligation is to be performed, or otherwise at the domicile of the debtor, the designation referred to in said article not existing in the present case.
    The Fiscal being of the opinion that the process in question was properly availed of, the court, on July 21, 1902, issued a writ of inhibition on the ground that inasmuch as the complaint brought by Egozcue against Belaval involved the maintenance of an action of a purely personal character and the defendant being a resident of Ponce, and not having submitted himself in said matter to any other foreign jurisdiction, the District Court of Ponce was the one competent to take cognizance thereof.
    Said inhibition was opposed by plaintiff, who alleged that the object of the suit was to recover indemnity for damages caused to urban real property belonging to him, situated in this city, and it having been declared in various decisions, among these the decisions of March 31, May 5 and December 15, 1869, rendered by the Supreme Court of Spain, that suits of this kind, from their nature, partook of the double character of real and personal, the one sought to be maintained by him was, therefore, a mixed action, and that it was clearly optional with the plaintiff to elect either the court of the domicile of the defendant, or the one of the place where the thing in controversy is situated, as provided by rule 4, article 62, of the Law of Civil Procedure. Plaintiff referred to several letters claimed to have been received by him from Bela-val, in which the latter promised to come to San Juan for the purpose of repairing, either by indemnity or performing the necessary work of repair, the damages he admits having caused, thus showing (according to him) that the damages should be repaired in San Juan, and not in Ponce, and he closed by citing several decisions of the Supreme Court of Spain in support of his claim.
    
      The District Court of San Juan, after Rearing tire Fiscal, who made a report in conformity with the claim of the plaintiff, maintained its jurisdiction in the premises in an order of August 30, 1902, based on articles 62, 90, 93 and 94 of the Law of Civil Procedure and the decisions of the Supreme Court of Spain; and on the fact that the obligation claimed had originated in San Juan, the latter being the place where the damages sought to be recovered had been caused, and that it was there that the obligation should be performed.
    This decision having been communicated to the Ponce court, the latter, by an order of September 18, 1902, desisted from the proposed inhibition, on the ground that inasmuch as it appeared from the proceedings in question that the obligation involved in the case had originated in San Juan by reason of losses and damages, the jurisdiction of the District Court of San Juan to take cognizance of the case should be accepted according to the provisions of rule 1, article 62, of the Law of Civil Procedure.
    From this order counsel for José Sastraño Belaval entered an appeal in cassation, now ordinary appeal, for violation of law, which appeal was allowed by the District Court of Ponce in an order of October 28, 1902.
    The present question of competency being thus raised, the District Court of Ponce allowed the appeal and forwarded the record to this Supreme Court for the proper decision, which appeal has been conducted under the appropriate procedure after hearing the -Fiscal.
    
    
      Mr. Acuña {Eduardo), for appellant.
    
      Mr. Alvarez Nava, for respondent.
   Me. Justice MacLeary,

after- making the above statement of facts, rendered the opinion of the court.

Although the obligation sought to be enforced in the complaint in question arises from damages caused to city property, and, therefore, to real estate, the action instituted is none:, the less a purely personal action; and in order to impart to it the character of a mixed action, as claimed by the plaintiff, it would have been necessary to have brought the complaint, not only for the recovery of damages caused to said real property, hut also for the recovery of the property itself; for • thus only would the action maintained have the double character of real and personal and, therefore, that of a mixed action, according to the definition of the term “mixed action,,y given by the well-known law dictionaries of Bonvier and Black.

According to the definitions of lexicographers and the jurisprudence of Spain and of the United States, it will be seen that although the claim for losses and damages may arise from an injury caused to real estate, this does not convert the action instituted for said purpose into a mixed action, a mixed action, strictly speaking, being a combination of a real and personal claim in the same proceeding, and the distinction refers rather to the form than to the origin of the litigation.

By paragraph 1, article 62, of the Law of Civil Procedure, it is provided that in personal actions the competent judge shall he that of the place where the obligation is to he performed, and should none have been designated, that of the domicile of the defendant or of the place of the contract, at the election of the plaintiff, if said defendant he found there, even accidentally, and process can he served upon him.

In the present case, there is no question of a contract, and, therefore, this phase is eliminated from the application of the above-mentioned law; and the action being purely a personal one, the domicile of the defendant is the place where this suit should he brought, as provided by article 1171 of the Civil' Code, and rule 1, article 62, of the Law of Civil Procedure.

Defendant has Ms domicile in the city of Ponce, and as it appears from the record that he has not submitted himself in said matter to any other jurisdiction, we adjudge that we should declare and do declare that the District Court of Ponce is the one having competent jurisdiction to take cognizance of the aforesaid complaint presented by Manuel Egozcue Cintron.

The records sent up to tMs Supreme Court with reference to the present question of competency are ordered to be forwarded to aforesaid district court, together with the proper certificate, this decision being likewise directed to be communicated to the District Court of San Juan, and costs to be apportioned between the parties.

Chief Justice Quiñones and Justices Hernández and Fi-gueras concurred.

Mr. Justice Sulzbacher did not sit at the hearing of tMs case.  