Aybar v. Vara Smith

45 P.R. 718

• Court: Supreme Court of Puerto Rico
• Decided: November 17, 1933
• Docket: No. 6471
• Status: Published

Opinion

MR. Justice Audrey

delivered the opinion of the Court.

Two grounds are urged for the dismissal of this appeal: one is that the appellants have not been diligent in the prosecution of their appeal; the other is that said appeal is frivolous.

Although it is true that for over two years, since February 1931, the appellants, without objection from the ap-pellee, have been securing extensions of time from the court, for the stenographer to prepare the transcript of the evidence for this appeal, it is also true that from an order of the court issued October 10 of the present year, it appears that the appellants complained that the stenographer did not prepare the transcript because they were litigating in forma pauperis, for which reason they requested a peremptory order against the stenographer; that the stenographer had not performed this work because he thought he was not bound to do so, and that he has been ordered by the court to prepare the transcript within a certain time.

In spite of the time elapsed since the filing of the appeal, we will not dismiss it on the first ground urged, as it is the conduct of the stenographer what has delayed the prosecution of the remedy.

The only thing that the appellee states in regard to the second ground urged for dismissal, is* that a mere perusal of the judgment shows the lack of grounds to complain thereof, and the inefficacy and futility of the appeal. The judgment is based on certain facts that may not be supported by the evidence, for which reason it can not serve as a basis for holding that the appeal taken is frivolous.

The motion to dismiss should be denied.