Ciuró v. Ciuró

31 P.R. 288

• Court: Supreme Court of Puerto Rico
• Decided: December 21, 1922
• Docket: No. 2718
• Status: Published

Opinion

Mr. Justice Audrey

delivered the opinion of the court.

In the second count of his complaint in this case Rafael Ciuró Santiago alleged that he was-the only child begotten by Cristino Ciuró Ortega in natural intercourse with Ana Santiago while they were single and there was no legal impediment to their marriage; that he was born on December 11, 1869, and was acknowledged by the said' Cristino Ciuró Ortega as Ms cMld a few months after Ms birth. On this ground he based his prayer that, being an heir at law and. having been ignored in the declaration of heirs. made by Cristino Cinro Ortega in favor of his widow aiid legitimate daughter, the Court should annul that declaration of heirs and the partition made by them of the estate and the records in their favor in the registry of property. As the. complaint was verified the answer was verified also, and it denied the second allegation of the complaint in all of its parts and specially denied that the plaintiff had been acknowledged in any way as the natural child of Cristino Cinro Ortega.

After a trial the court, on motion by the defendants, held that the plaintiff’s evidence was not sufficient to support the allegations of his complaint and rendered a judgment of dismissal. From that judgment the plaintiff took this, appeal.

When the trial commenced in the lower court two years after the complaint had been filed the plaintiff moved the court for a judgment in his favor on the allegations' of the Complaint without a trial on the ground that there was no answer because its verification was null and void and because the acknowledgment alleged in the complaint was not specifically and affirmatively denied in the answer. The defendants admitted that the verification was void and asked the court for permission to amend it, which was granted by the court for the reason that although the verification was void and the defendants had been guilty of negligence and carelessness,, yet nothing in the record indicated that their intention had been to obstruct or delay the prosecution of the action or that they had acted in bad faith, wherefore the court’s ruling could not operate as a surprise to the plaintiff, and, furthermore, because the allegation of the complaint with regard', to the acknowledgment of the plaintiff was well denied in the answer.

The grounds relied on for .a reversal of the judgment are as follows; First, because the court abused its discretion in overruling tbe plaintiff’s motion for a judgment on the pleadings. Second, because the court 'held that the allegations of the second count of the complaint were well denied in the answer. Third, because the court dismissed the complaint for failure of evidence.

As to the first assignment, we can not agree with the appellant that the lower court abused its discretion in permitting the defendants to amend the verification of their answer at the trial, for the reasons given by the court for allowing the amendment of the verification are sufficient to justify the court’s action.

In arguing the second assignment the appellant contended that the answer did not deny the second count of his complaint, for while the complaint alleged that the plaintiff was acknowledged by Cristino Ciuró, what the answer «denied was that the defendant had been acknowledged in any manner as a natural child of Cristino Ciuró, for which reason it did not specifically deny the acknowledgment by Cristino Ciuró, but his acknowledgment as such child by other persons.

The improper use of one preposition for another is not sufficient in this case to justify a declaration that the answer failed to deny specifically the second count of the complaint, for from a liberal construction of that'allegation ¡of the answer, in accordance with section 122 of the Code of Civil Procedure, it may be understood as denying that the plaintiff was acknowledged as "a natural child by _ his putative father.

In discussing the third assignment of error the plaintiff does not argue that the evidence introduced by him at .the trial was sufficient, but that as the answer was insufficient for the'reasons stated in the second assignment, the •court should have overruled the motion of the defendants for a nonsuit and rendered judgment for the plaintiff.

As we agree with the trial court that the answer was sufficient, there was no error in sustaining- the motion for a nonsuit.

The judgment appealed from must he

Affirmed.

Chief Justice Del Toro and Justices Wolf and Hutchi-son concurred. Mr. Justice Franco Soto took no part in the decision of this case.