Arzuaga v. Vélez Vélez

57 P.R. 638

• Court: Supreme Court of Puerto Rico
• Decided: November 18, 1940
• Docket: No. 8180
• Status: Published

Opinion

Mu. Chief Justice Del Tobo

delivered the opinion of the court.

On July 15,1940, the appellee moved to dismiss the appeal taken in this case as being frivolous. On the next day-the motion was set for hearing on the sixth of the following November.

On October 30, the appellant opposed the motion in writing and urged that the appeal was meritorious. At the hearing only the appellee appeared, represented ^ by his attorney, and asked that the appeal be dismissed on the further ground of appellant’s failure to file his brief.

From the record it appears that the judgment appealed from was rendered on December 15, 1939, and that the record of appeal was filed in the office of the secretary of this court on April 25, 1940; that on the 4th of the following June, the appellant asked for an extension of thirty days to file his brief, which was denied as it had not been timely requested; that then he appealed to the discretion of the court and the latter, in the exercise of such discretion, granted a new term to expire on July 14, and thereafter new extensions were requested and obtained. The one applied for on October 1 was granted on October 2, as a last extension to expire on the 1st of November.

At this stage, on October 25, the appellant requested another extension of thirty days, and as an only ground therefor he alleged:

“That as counsel for the appellant bad bad to devote bis entire time to tlie preparation of the brief for filing in the case of Caguas Company Inc. v. Alejandro López Fauct, be was unable to give the proper attention to the brief in the present case.”

Regarding that request the following order was entered on October 26, 1940:

“As the appellant was granted, on October 2, 1940,. a last extension to file bis brief, the new extension requested must be denied. ’ ’

Although the appellant had still available four days of the term granted to* him on October 2, he failed to file his brief; and.be did not file it on or before November 6, tbe day set for tbe bearing of "tbe motion to dismiss, nor bas be filed it as yet.

We fhinlr that tbe neglect on tbe part of tbe appellant as shown by tbe record is of such a character that, although tbe appeal can not be dismissed for failure to file a brief, as requested by tbe appellee, notice of tbe motion to dismiss not having been served, before said motion is considered on its merits, tbe appellant, in accordance with Bule 60 of this court, must be summoned to appear on tbe 25th of this instant November to show cause why bis appeal should not be dismissed by tbe court on its own motion for bis failure to comply with tbe duty, imposed upon him by said rules, of filing bis brief in time.