
    Municipality of Adjuntas, Plaintiff and Appellee, v. Primo Delgado, Defendant and Appellant.
    No. 7199.
    Argued March 9, 1936.
    Decided March 13, 1936.
    
      B. Mimos Ramos for appellant. Agustín E. Font for appellee.
   Mr. Chief Justice Del Toro

delivered the opinion of the court.

The dismissal of the present appeal is sought on the ground, among others, that it is frivolous. And in our judgment it is frivolous.

This is an injunction proceeding to recover possession. The complaint was filed on July 1, 1935, by the Municipality of Adjuntas against Primo Delgado. Seven days later it was amended to describe more accurately the totality of the land belonging to the municipality and the portion thereof which it was alleged had been forcibly occupied over the express will of its owner.

On the 9th of the following August, the defendant moved-, to strike from the pleadings the amended complaint on the ground that it stated a new cause of action and filed a demurrer for insufficiency. The court decided both the motion and the demurrer adversely to him.

Then the defendant answered. (His answer is not included in the transcript.) There was a trial where both parties introduced evidence. (The evidence heard has not been sent up to this court either.) And the court, on September 27, 1935, gave judgment for plaintiff on the pleadings and the evidence.

The defendant took an appeal. The transcript was filed in the office of the clerk of this court on November 29, 1935. He applied several times for extensions of time and finally filed a brief on February 25,1936. Two days later the appel-lee filed a motion to dismiss which was heard on the 9th of the current March the appellee appearing by counsel. The appellant opposed the dismissal in writing.

The defendant and appellant in his brief makes no reference to the disposal of the case on its merits. He confines himself to assign as error the dismissal of his demurrer without stating the grounds for his assignment, and to maintain that the court also erred in overruling his motion to strike out. He argues this error and closes by saying that the parcel of land described in the amended complaint is not the same as the one described in the original complaint and therefore, that said amended complaint should have been stricken out from the pleadings, because it alleges a cause of action other than the one which gave rise to this suit.

We have carefully examined the descriptions and, in our judgment, the parcels of land involved are one and the same.

Both in the original and in the amended complaints the the whole property owned by the municipality is described first, and then that portion thereof which the defendant occupied. It happened that in the original complaint the; description of the parcel in controversy was made without reference to the cardinal points and in a confused manner when mentioning No. 1 and Rodulfo González Streets. In-the amended complaint there are stated the cardinal points and the superficial area of the said parcel, which does not extend as far as No. 1 and Rodolfo' González Streets, which lie to the north and to the east of the whole parcel. The boundaries on the south and on the west are respectively Planta Street and a property of the defendant himself, and such boundaries are kept in the description.

It appears so clearly that in both cases the same parcel of land is involved, that the only conceivable object for maintaining that such is not the case is to delay the execution of the judgment. That is why we said from the start that the appellee was right in maintaining that the appeal is frivolous.

The motion should be granted and, therefore, the appeal should be dismissed as frivolous.

Mr. Justice Cordova Davila took no part in the decision of this case.  