Bithorn v. Ball

17 P.R. 549

• Court: Supreme Court of Puerto Rico
• Decided: May 8, 1911
• Docket: No. 659
• Status: Published

Opinion

Mr. Justice MacLeary

delivered the opinion of the court.

This suit Avas brought to set aside a will. A motion was made by the defendants to change the venue from the District Court of Arecibo to the District Court of San Juan. This motion was based on section 66 of the Law of Special Legal Proceedings and on sections 81 et seq. of the Code of Civil Procedure. It is stated in the motion that an affidavit of merits is attached to the motion, and that the will and a certificate of death will be presented at the proper time, and that the demurrer to the complaint is filed at the same time with the motion. The motion further alleges that the legal ground thereof is that the last domicile of the testator, Bernardo Huicy, was San Juan and not Arecibo, as shown by the affidavit, and that the greater part of the property of the deceased is situated in San Juan, that city also being the residence of most of the defendants.

The resolution entered October 22, 1910, denying this motion, reads as follows:

“Oscar and Waldemar Bithorn et al. v. Adolfo Ball et al. Nullity o£ a will. This being the day set for the hearing of the motion presented for the transfer of this suit to another court, the attorney, Mr. Félix Santoni, appears in substitution of Attorney José Tous Soto, the plaintiffs having made no appearance. Attorney San-toni submitted said motion on its merits to the court, and the court rendered the following decision: ‘The court is of -the opinion that, in accordance with section 82 of the Code of Civil Procedure, should the defendant desire to ask for a change of venue, he must file an affidavit of merits in reference to the matters of defense, requesting in writing the transfer from the opposite party. The notice- of the motion for a change of venue is not the request required by the law. A written petition is necessary in order that the order making the transfer of the case may be valid, and so it has been decided by the Supreme Court of California in the cases of Estrada v. Oreña, 54 Cal., 407; Byrne v. Byrne, 57 Cal., 348; Warner v. Warner, 100 Cal., 11.’ It does not appear from the record that the defendant had asked in writing from the opposite party the transfer of the cause, as is provided in the aforesaid section 82 of the Code of Civil Procedure. For the reasons stated the motion is dismissed.”

From this order tbe appeal was taken to this court, which we now have under consideration. It will be observed that this motion was denied because it does not appear from the record that the defendant has solicited in writing from the .other party the transfer of the case, as is said to be required by section 82 of tbe Code of Civil Procedure. Tbat section provides tbat tbe ease shall be tried where it is filed, unless tbe defendant files an affidavit of merits and demands in writing tbat tbe trial be bad in tbe proper district. Tbe trial court evidently bolds tbat this demand must be made on the opposing party to tbe suit. Three California cases are cited to support this construction of tbe statute. They are Estrada v. Oreña, 54 Cal., 407; Byrne v. Byrne, 57 Cal., 348, and Warner v. Warner, 100 Cal., 11. Tbe California statute in this particular reads like our own. (Pomeroy’s Code of Civil Procedure, sec. 396.) These cases above mentioned do not support tbe interpretation given by tbe trial court to our statute. They merely decide tbat tbe demand must be made in writing, and tbat notice of tbe motion does not satisfy tbe statute. They do not say tbat tbe demand must be made on tbe opposing party to tbe suit. Such a construction does not commend itself to our good judgment, because tbe demand should be made on some person or tribunal that has tbe power to grant j.t, which tbe plaintiffs in this case have not ;■ but tbe trial court has tbe authority to make tbe change of venue, and to tbat tribunal tbe demand should be addressed. It is true tbat tbe word “demand,” as used in tbe statute, is not very apt or appropriate, and “ask” or “request” or “solicit” would be a better word, but, nevertheless, tbe demand should be addressed to tbe court, which may grant or refuse it according to circumstances. But it sometimes happens tbat an order of a court, though made for an erroneous cause, may be a correct ruling. Then, although tbe reason given for the refusal of this motion to change tbe venue by tbe trial court may be, and is in our opinion, unsound, let us see if it is justified or not on other grounds.

First it is suggested that this case falls under section 66 of the Porto Rican Law of Special Legal Proceedings, and is not governed at all by our Code of Civil Procedure. Let ns see. Under our statute a suit like the present, involving the validity of a will, should be filed in the district court having territorial jurisdiction over the last residence of the testator, or over the place where the greater part of his property is situated. (Law of Special Legal Proceedings, sec. 66, Sess. Acts 1905, p. 152.) This would fix the venue in the present case in the city of San Juan. Although the Law of Special Legal Proceedings was passed later than the Code of Civil Procedure, can it be held to modify the former law to such an extent as to oust the jurisdiction entirely of the court of general jurisdiction in which the case may have been improperly filed, and to require its removal regardless of the provisions of sections 81, 82, and 83 of the Code of Civil Procedure? We think not. The Law of Special Legal Proceedings does not absolutely deny jurisdiction to any other court, but simply makes the domiciliary court the proper one in which to file the suit to contest the validity of a will. (Laws of 1905, sec. 66, p. 152.)

Suppose that a man lives and dies and has all his property in Aguadilla, but that all his heirs live in San Juan. Are the latter incapacitated from giving jurisdiction to the District Court of San Juan? By no means. Suppose such a case to have been filed in Aguadilla. May not the convenience of witnesses permit its transfer to San Juan? Certainly; beyond doubt. If a case may be transferred, or, in other words, if the provisions of section 83 of the Code of Civil Procedure may in such a case be invoked, is the matter of a contested will, mentioned in the law of 1905, an example of anything more than legislation in pari materia of the provisions of Title Y, sections 75, 76, 77, 78, etc., of the Code of Civil Procedure? It seems not. Can section 66 of the Law of Special Legal Proceedings be regarded as doing anything more than adding another case to those already enumerated in which an action may be brought? Certainly not. The language of the Code of Civil Procedure is even more imperative. It requires, in section 75, that an action must be tried in such a district, subject to the power of removal. As the action mentioned in section 66 of the Law of Special Legal Procedings must be subject to all the provisions of the Code of Civil Procedure in regard to filing the complaint, the commencement, summons, answer, demurrer, trial, and so forth, it should surely not be excluded from the beneficial operation of the provisions, of sections 82 and 83. On close examination we find that section 83 refers to all the cases mentioned in section 82, and more besides. Section 83 is a mere amplification, for purposes of exhaustive classification, of the proviso of section 82, namely, that the action may be tried in the district where it is commenced “unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands in writing that the trial be had in the proper district.” Hence, we think that the Law of Special Proceedings and the Code of Civil Procedure should be construed together and harmonized; so that we arrive at the conclusion that this case, and others like it, should be held to fall under the purview of sections 82 and 83 above mentioned, and that an affidavit of merits must accompany the motion for a change of venue or removal. And, besides, there is nothing in the law of 1905 which, when properly construed, takes the contest of a will out of the provisions of section 50 of the Code of Civil Procedure where an action is defined. It is clearly an action as that term is construed by the statute. Then we conclude, also for this reason, that the action described in section 66 of the Law of Special Legal Proceedings of 1905 is governed for all purposes by the Code of Civil Procedure, and that sections 82 and 83 thereof are applicable to the case at bar.

It must not be forgotten, however, that an affidavit of merits must be filed by the defendant at the time he appears and answers or demurs. The paper filed herein, as an affidavit of merits, reads in these words:

“Affidavit of merits. I, Adolfo Ball y Huicy, solemnly swear that I am one of the defendants in this case and the only one residing at Areeibo; that the other defendants reside and have their domicile in the city of San Juan, within the judicial district of same name; that Bernardo Huicy died at Miramar in Santuree, of the jurisdiction of San Juan, which was the last domicile of the deceased; that most of the properties left by Bernardo are and were situated at the time of his death within the municipal judicial district of San Juan, they being composed principally of shares of the telephone companies in said city and of a lot in Miramar; that the defendants have faithfully and completely stated the facts of this case to their attorney, Mr. José Tous Soto, who is of opinion that we have a good defense on the merits against the present complaint.”

Can this be considered a compliance with the statute? The affidavit unequivocally declares “that the defendants have faithfully and completely stated the facts of this ease to their attorney (naming him), who is of the opinion that we have a good defense on the merits against the present complaint.” Section 82 of our Code of Civil Procedure,, requiring that the mover, when demanding a change of venue,, shall file an affidavit of merits, is copied from the California Code of Civil Procedure, section 396. (See 3 Pomeroy, p. 141'.) Then, of course, we may look to the California decisions for an interpretation of the statute. (Saríe v. Porto Rican Leaf Tobacco Co. [15 P. R., 190], decided by this court on April 12, 1909.) A line of cases in that State holds that. affidavits such as that before us, and even those more meagre, are sufficient to satisfy the requirements of the statute. (See Woodward v. Backus, 20 Cal., 141; Nickerson v. California Raisin Co., 61 Cal., 268; Watkins v. Degener, 63 Cal., 500; Buell v. Dodge, 63 Cal., 553; Rathgeb v. Tiscornia, 66 Cal., 96, and Nolan v. Duffie, 125 Cal., 334.)

In several cases this court has considered questions of change of venue, but in none of them has the precise point presented Rere been directly considered and decided. On March 25, 1909, we bad nnder consideration tbe case of Arzuaga & Co. v. Aramburu, 15 P. R., 165, bnt tbe ground on wbicb tbe transfer was asked was tbe convenience of witnesses, and tbe affidavit of merits, although one was filed, was not considered. In tbe case of Saríe v. Porto Rican Leaf Tobacco Co., supra, decided by this court on April 12, 1909, there was no affidavit of merits filed, but tbe trial court held that tbe sworn answer was equivalent to it and tbe .opinion of this court seems to sustain that view. Tbe case of Río v. Vázquez, 16 P. R., 768, decided on tbe 21st of last December, was one involving a change of venue; but no affidavit of merits was presented in tbe case and its sufficiency does not arise. In tbe case of Fajardo v. Tió, 17 P. R., 220, in wbicb an opinion was rendered by this court on tbe 24th of last February, an affidavit purporting to be one of merits was filed and held by us to be insufficient because it merely stated that tbe defendant lived in another district. Tbe opinion states “this is not tbe affidavit of merits to wbicb section 82 refers. Tbe affidavit of merits is one in wbicb tbe affiant sets forth facts sufficient to permit tbe court to see that be has a good defense to tbe action.” Tbe cases of Buell v. Dodge and Nickerson v. California Raisin Company, from California, are cited as sustaining this proposition. A closer examination of those cases shows that they do not so decide, and that tbe proposition announced is broader than tbe California cases warrant. If we follow tbe California jurisprudence we must confine tbe proposition announced in tbe Fajardo v. Tió case to such affidavits as are presented independent of tbe advice of counsel, and exclude cases like that presented in tbe affidavit now under consideration. This we may properly do since, in tbe last Porto Rican case mentioned, really no affidavit of merits was presented at all, and tbe proposition quoted from tbe opinion was in fact an obiter dictum.

Tbe cases from our own court thus briefly reviewed are the only ones which we have been able to find involving a change of venue, or at least in which an affidavit of merits is discussed. Then we are constrained to follow the California cases and to hold that an affidavit which sets ont that the defendant has faithfully stated to his attorney the facts of the case, and that in the opinion of his counsel he has a good defense on the merits to the complaint, is a full compliance with the requirements of onr statute on that subject.

Then the defendants and appellants having fully complied with the requirements of the statutes governing changes of venue should have prevailed in the court below.

For the reasons herein stated the resolution denying the motion for a transfer to another district from which this appeal was taken must be reversed, and the change of venue should be granted.

Reversed.

Chief Justice Hernández and Justices Wolf, del Toro, and Aldrey concurred.