Caballero Medina v. Díaz Valcárcel

50 P.R. 334

• Court: Supreme Court of Puerto Rico
• Decided: July 8, 1936
• Docket: No. 6652
• Status: Published

Opinion

Mb. Chibe Justice Del Toro

delivered the opinion of the Court.

On May 4, last, this court, taking account of the fact that the transcript of the record had been filed on January 25, 1935, and that the appellant had not yet filed his brief, set a hearing for May 25, 1936, in order that the said appellant might show cause why the appeal should not be dismissed. The appellant did not appear and the court dismissed the appeal for want of prosecution.

Shortly after the decision was rendered, on the same day, May 25, the appellant filed a motion in the office of the clerk of the court requesting that he be granted a term of two days to file his brief which he had not been able to finish because his attorney was ill. And two days later the said party filed his brief together with another motion requesting that the order of May 25, 1936, be set aside.

The appellant was ordered to notify the opposing parties of his motion and the latter objected in writing emphasizing the previous delays, the legal status created by the order dismissing the appeal and the frivolity of the appeal on its merits.

A legal status was indeed created by the order of May 25, 1936, but it is a status which may be altered if justice demands it. The dismissal was ordered by virtue of the appellant’s apparent abandonment of his appeal, but if the appellant should convince the court that the appearances were not in accord with the facts, the court could set aside its order and provide that the proceedings continue so that the appeal could be heard on its merits.

Let us see if this showing has been made. It appears from the record that the judgment appealed from was rendered more that three years ago, on February 24, 1933, for the defendants. The plaintiff filed an appeal on March 7, 1933, and on March 23, 1934, the defendants-appellees, requested that this court dismiss the appeal because the transcript had not yet been filed. Both parties were heard and the motion of the appellees was denied on April 6, 1934.

The transcript was not filed until January 25, 1935, and as the appellant did not file a brief, on March 21, 1935, the court set April 8 following for appellant to show cause why the appeal should not be dismissed for want of prosecution. Appellant requested that the hearing be set for another day and the court agreed. The record does not show that any action was taken until more than a year later, that is, on May 4, 1936, when a date was again set for the appellant to state his reasons why the appeal should not be dismissed. We have stated above what then took place.

Under these circumstances, in view of such a prolonged abandonment, we do not feel justified in exercising our discretion in favor of the appellant, especially when a cursory examination of the brief which accompanies his motion of May 27 last, in connection with the opinion on which the judgment appealed from was based, does not show that any manifest error was committed.

The appellant’s motion is accordingly denied and the order of May 25, 1936, dismissing the appeal will stand.

Mr. Justice Córdova Davila took no part in the decision of this case.