de León v. Rivera

50 P.R. 592

• Court: Supreme Court of Puerto Rico
• Decided: November 18, 1936
• Docket: No. 7377
• Status: Published

Opinion

Mu. Justice Oósdova D avila

delivered tlie opinion of the. Court.

Deffina Rivera signed fifteen promissory notes in favor of Rogelio de León, who lias brought this action on a number of them which have not been paid.

The third paragraph of the complaint alleges that the notes are attached to the complaint, and the fourth paragraph ratifies this allegation, stating that the said overdue notes, signed by the defendant in favor of the plaintiff, ‘ ‘ are attached to this complaint and form part of the same.”

The defendant, after her default had been entered and rendered against her, took this appeal. The plaintiff-appel-lee has moved to dismiss the appeal on the ground, among-others, that it is frivolous.

The defendant-appellant, in order1 to show that the-appeal is not frivolous, maintains that the court a quo erred, in deciding for the plaintiff and in ordering the appellant to pay the appellee the amounts stated in the judgment,, because the complaint does not state facts sufficient to constitute a cause of action, since it does not allege that the-promissory notes to which it refers were delivered to the appellee, or at least that the latter is in possession of the-notes.

The appellant contends that in the case of Schlüter & Co. v. González, 34 P.R.R. 292, this court held that in actions on promissory notes the delivery, or at least the possession of the notes by the plaintiff, as well as their making’, must be adeged. In the case cited it is also said that if the plaintiff had alleged that he was the holder of the instruments the; allegation of delivery would not have been indispensable, for' the law presumes delivery in such cases, unless the presumption can be destroyed.

It is true that the plaintiff does not allege in a specific manner that he is in possession of the promissory notes, but he states and repeats that he attaches the notes to the com-pffiint, making them form part thereof. This allegation shows clearly that the instruments were in his possession when he attached them to the complaint and made them form an integral part of his allegations.

The appeal taken is in our opinion frivolous and must be dismissed.

Mr. Chief Justice Del Toro took no part in the decision of this case.