Bosch Gelpí v. Rodríguez de Colón

41 P.R. 295

• Court: Supreme Court of Puerto Rico
• Decided: July 10, 1930
• Docket: No. 5135
• Status: Published

Opinion

Mr. Justice Hutchison

delivered the opinion of the Court.

The district court dismissed a suit for an injunction to enjoin the construction of a building, the foundation of which was alleged to have been laid in part on property of plaintiff.

The brief for appellant contains twenty-nine typewritten pages. Most of it is devoted to a discussion of the evidence. There is no reference to any page of the stenographic transcript. There is no specific assignment of error, separate or otherwise. The judgment might be affirmed for this reason.

The complaint especially in the caption and in the prayer, savors strongly of an ordinary suit for injunction rather than a proceeding for “an injunction to restore the material possession of real property” as authorized by an Act approved March 13, 1913, Session Laws, page 83, and amended in 1917, Laws of that year, page 221. After the trial, plaintiff relied primarily, if not exclusively, upon the law last mentioned. That is also the position of appellant.

The district judge, after a discussion of the theory of the complaint and a reference to certain implied admissions, said to have been made by counsel for plaintiff at the opening of the trial, held that plaintiff in a suit for an ordinary injunction could not invoke the Law of 1913 as amended in 1917 nor obtain any relief thereunder. Whether or not the district judge erred in so holding is a question that need not be determined now.

The district judge also passed upon the merits of the case from plaintiff’s point of view. For the purpose of reviewing this aspect of the result below, it may be conceded, without holding, that the prayer is broad enough to include an implied request for alternative relief under the Law of 1913, as amended in 1917. Without going into details, it may be conceded also that the complaint aided by the answer, by the manner in which the case was tried, and by the evidence for plaintiff, would have sustained the issuance of a restorative interdict, or the granting of relief in some form in accordance with the amendment of 1917.

There was some conflict in the evidence as to previous actual possession by plaintiff, and this conflict was decided by the trial judge in favor of defendants. A careful examination of all the evidence does not disclose any such manifest error in the conclusion as reached as to justify a reversal.

The judgment appealed from will be affirmed.