Egozcue Acha v. Olivar Amil

50 P.R. 677

• Court: Supreme Court of Puerto Rico
• Decided: December 10, 1936
• Docket: No. 7073
• Status: Published

Opinion

Mr. Justice Hutchison

delivered the opinion of the Court.

Plaintiff, in a suit for divorce, announced that he had decided to discontinue his action for the time being and moved the court that, without prejudice to such action, he should be deemed to have desisted therefrom and that the case should be consigned to the archives without costs. The court entered an order of dismissal with prejudice to plaintiff, with costs to defendant and without prejudice to defendant’s right to certain money which the court had ordered plaintiff to pay to defendant. Plaintiff appealed and defendant moved to dismiss the appeal. At the hearing the casé was submitted on its merits.

The case had not come on to be heard and defendant had neither demurred nor answered the complaint when plaintiff-announced his intention of discontinuing his action and asked that he be permitted to do so without prejudice. He was entitled to a voluntary dismissal under Section 192 of the Code of Civil Procedure upon payment of ciosts. The district court in awarding costs followed the language of the statute. We do not deem it necessary at this time to determine the meaning and scope of the word “costs”. The district court erred in providing that the dismissal should be “with prejudice”.

' The judgment appealed from will be modified by eliminating therefrom the words “to his prejudice” and, as modified affirmed.

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