Campos del Toro v. Collazo de Sotorra

43 P.R. 119

Opinion

Mr. Justice HutchisoN

delivered tbe opinion of tbe Court.

Appellee moves to dismiss the present appeal as frivolous.

Appellants were the defendants in an unlawful detainer proceeding. Their-main defense was a collateral attack on plaintiff’s title. Plaintiff had acquired the property in controversy as judgment creditor and purchaser at an execution sale.

The theory of appellants is that the execution sale was a nullity because of a pending appeal from the judgment upon which the execution had issued. The notice of appeal from that judgment was filed more than thirty days after the secretary bad filed a copy of tbe notice of sucb judgment. Appellants rely on section 322 of tbe Code of Civil Procedure.

By tbe terms of section 2 of an Act approved March 9, 1911 (Session Laws, p. 226, Comp. Stat., sec. 5338), the time within which an appeal may be taken begins to run from the date upon which a copy of the notice of judgment is filed among the papers by the clerk, not from the date of service of such notice. Section 322 is therefore inapplicable.

Appellants also say, however, that the house in question was not identified at the trial as the house occupied by defendants. The complaint was not verified. The answer contained a general denial. The judgment included an award of costs to plaintiff. The evidence adduced at the trial is not before us. At the present stage of the matter we are not prepared to say that the judgment, including the pronouncement as to costs, should be permitted to stand.

The motion must be denied.