Ex parte Fernández

4 P.R. 45

Opinions

Mb. Chief Justice. Quiñones,

after making the above statement of facts, delivered the opinion of the court as follows:

The findings of fact set forth in the order appealed from are accepted.

Under section 1 of General Order No. 224, series of 1899, which was in force before the publication of the new Civil Code, any merchant could make legal announcement of his having suspended payment within forty-eight hours next following the judicial or extrajudicial demand for payment of an obligation due and payable by him.

This provision of aforesaid General Order cannot be considered as having been repealed by article 1814 of the revised Civil Code which refers only to ordinary debtors applying for the remedy of composition and respite from their creditors, but not to merchants making legal announcement of their having suspended payment who cannot be declared insolvent but in a state of bankruptcy in a proper case, according to articles 1128, 1168 and 1316 of the Law of Civil Procedure, and 874 of the Code of Commerce, which have not been repealed, but, oh the contrary, should be considered as in force in view of the provisions of articles 1076, 1572 and 1691 and the final provision of aforesaid Civil Code.

Commercial transactions or acts, to which character the announcement of suspension of payments by a merchant, essentially appertains, pursuant to article 2 of the Code of Commerce, are governed by the provisions thereof, and such other provisions as are complementary thereto, to which class belongs General Order No. 224, series of 1899, the latter constituting the law in force with regard to the suspension of payments by merchants, in which matter as in all others governed by special laws, the provisions of the revised Civil Code are applicable only as' supplementary law, as prescribed in a general manner by article 12 of aforesaid Civil Code.

Under article 870 of the Code of Commerce, not only a merchant whose assets exceeded his liabilities, but one who lacked the means wherewith to satisfy all his debts in full could be judicially declared in suspension of payments, and although this provision of the Code of Commerce was after-wards modified by Royal Decree of June 25, 1897, according to which, a merchant who sought to obtain that benefit should own sufficient property to cover all his liabilities, while the extension of time proposed by him to his creditors could not exceed three years, and much less could he ask for a composition or reduction of his debts, his application being otherwise denied, all these provisions of aforesaid Royal Decree were subsequently repealed by General Order No. 224, according to which, every merchant, without any distinction between one who owned and one who did not own sufficient property to cover his liabilities in full, may make legal announcement of his having suspended payment, provided that upon a judicial or extrajudicial demand for payment of an obligation due and payable by him, he shall do so within forty-eight hours next following such demand, which requisite the petitioner claims to have complied with, nothing to the coutrary appearing in the record.

There being, therefore, no reason why the application of the petitioner should not be granted, under the authority of aforesaid legal provisions, we adjudge that we should reverse, and do reverse the order appealed from, dated February 19, last, as also the order concordant therewith of February 10, by declaring Constantino Fernández in ' suspension of payments. The District Court of Mayagüez is directed to make the necessary orders for the purpose of effecting said suspension of payments in accordance with the law.

Justices Hernandez and Figueras concurred. Mr. Justice Sulzbacher did not sit at the hearing of this case.