Collazo v. Rivera

Supreme Court of Puerto Rico

Collazo v. Rivera

26 P.R. 83

CourtSupreme Court of Puerto Rico

DecidedJanuary 25, 1918

DocketNo. 1709

StatusPublished

This text of 26 P.R. 83 (Collazo v. Rivera) is published on Counsel Stack Legal Research, covering Supreme Court of Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Collazo v. Rivera, 26 P.R. 83 (prsupreme 1918).

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Opinion

Mr. Chief Justice HerNÁNdez

delivered the opinion of the court.

This is an appeal by plaintiff Jnan Collazo López from a judgment rendered upon default of defendant María Bivera Hernández by the District Court of San Juan, Section 2, on June 6, 1917, dismissing the complaint in an action for divorce, with costs.

Prior to the hearing on the appeal the appellee filed in this court a written motion for dismissal of the appeal on the ground that she had not -been served with notice of the appeal. The motion was argued at the hearing and the only objection made by the appellant was that in his opinion section 323 of the Code of Civil Procedure relieved him of the duty of serving the notice when the defendant was in default. The motion for dismissal is well founded.

Section 296 of. the Code of Civil Procedure provides that an appeal is taken by filing with the secretary of the court in which the judgment or order appealed from is entered, a notice stating that an appeal is taken from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney.

An adverse party is one who would be prejudiced or affected by a reversal or modification of the judgment appealed from; therefore our statute requires that notice of the appeal shall be served on the party who may be prejudiced or affected by the judgment to be rendered on appeal, and the fact that such party may be in default does not relieve the appellant from compliance with the statute, it being general and containing no exception whatever. Candelas v. Ramírez, 20 P. R. R. 31; Martínez v. Succession of Laurido, 21 [85]*85P. R. R. 29; Galafar y. Succession of Morales, 22 P. R. R. 458; Ninlliat v. Suriñach et al., 25 P. R. R. 509.

Applying the foregoing doctrine to this case, we find that the appellee is a necessary party to the appeal, for, if the judgment- should he reversed, as prayed for by the appellant, the decision would necessarily affect the defendant-appellee. .

The appeal is dismissed without considering its grounds or merits.

Appeal dismissed.

Justices Wolf, del Toro and Hutchison concurred. Mr. Justice Aldrey took no part in the decision of this case.

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Mr. Chief Justice HerNÁNdez

delivered the opinion of the court.

This is an appeal by plaintiff Jnan Collazo López from a judgment rendered upon default of defendant María Bivera Hernández by the District Court of San Juan, Section 2, on June 6, 1917, dismissing the complaint in an action for divorce, with costs.

Prior to the hearing on the appeal the appellee filed in this court a written motion for dismissal of the appeal on the ground that she had not -been served with notice of the appeal. The motion was argued at the hearing and the only objection made by the appellant was that in his opinion section 323 of the Code of Civil Procedure relieved him of the duty of serving the notice when the defendant was in default. The motion for dismissal is well founded.

Section 296 of. the Code of Civil Procedure provides that an appeal is taken by filing with the secretary of the court in which the judgment or order appealed from is entered, a notice stating that an appeal is taken from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney.

An adverse party is one who would be prejudiced or affected by a reversal or modification of the judgment appealed from; therefore our statute requires that notice of the appeal shall be served on the party who may be prejudiced or affected by the judgment to be rendered on appeal, and the fact that such party may be in default does not relieve the appellant from compliance with the statute, it being general and containing no exception whatever. Candelas v. Ramírez, 20 P. R. R. 31; Martínez v. Succession of Laurido, 21 [85]*85P. R. R. 29; Galafar y. Succession of Morales, 22 P. R. R. 458; Ninlliat v. Suriñach et al., 25 P. R. R. 509.

Applying the foregoing doctrine to this case, we find that the appellee is a necessary party to the appeal, for, if the judgment- should he reversed, as prayed for by the appellant, the decision would necessarily affect the defendant-appellee. .

The appeal is dismissed without considering its grounds or merits.

Appeal dismissed.

Justices Wolf, del Toro and Hutchison concurred. Mr. Justice Aldrey took no part in the decision of this case.

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26 P.R. 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collazo-v-rivera-prsupreme-1918.