Belden v. Pesquera

4 P.R. 321

Opinion

Mb. Justice Hernández,

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

The findings of fact contained in the judgment appealed from are accepted.

Counsel, for Mariano Pesquera y Goenaga having withdrawn the latter’s appeal from said judgment, and the other parties confining themselves only to opposing the same in so far as the prayer for damages made by the plaintiff in intervention of ownership is therein dismissed without special imposition of costs, the decision of this court should be confined to these particulars, leaving in force all the other points decided in the judgment appealed from.

Inasmuch as Cora May Belden de Smith has not proved, nor even attempted to prove, the existence of the damages •claimed by her, nor can these be considered as a necessary •consequence of the attachment levied at the request of Mariano Pesquera y Goenaga on property whereof she claims the ownership, in adjudging that such a claim did not lie, the trial court has acted in accordance with the law and the legal doctrine sanctioned by the Supreme Court of Spain in .several judgments rendered prior to the discontinuance of Spanish sovereignty in this Island, among others, those of January 9 and July 3, 1897.

Nor could the costs be taxed against Mariano Pesquera y ■Goenaga, inasmuch as he answered the complaint in intervention of ownership, praying that the same be dismissed, .and as this was done, as to the portion thereof referring to the damages, it is evident that he did not lose his case on all points, for which reason section 63 of General Order No. 118, series of 1899, invoked by counsel for Cora May Belden de Smith, is not applicable.

In view of the authorities hereinbefore cited we adjudge that we should affirm and do affirm, the judgment appealed from, in so far as it is declared therein that the damages claimed by the plaintiff in intervention, Cora May Belden de Smith, does not lie, without special imposition of costs, these points being included in the appeal taken by said plaintiff; all the other particulars contained in said judgment not having been the object of appeal, since Mariano Pesquera y Goenaga withdrew the one he had taken, remain in force, the costs of the appeal of the plaintiff in intervention being taxed against her, Herbert E. Smith and José Wenar, who were parties to her claim. The record is ordered to be returned to the District Court of San Juan with the proper certificate.

Chief Justice Quiñones and Justices Sulzbacher and Mac-Leary, concurred. Mr. Justice Figueras did not sit at the hearing of this case.