Fajardo v. Sucrerie Central Coloso

10 P.R. Fed. 27

Opinion

HamiltoN, Judge,

delivered tbe following opinion:

Tbis matter comes up at present upon tbe motion of tbe defendant for tbe court to declare void tbe remedy adopted in tbis case to secure tbe effectiveness of tbe possible judgment, on tbe ground either that tbe suit has been suspended on petition of tbe party plaintiff, or that tbe date fixed by tbe court for tbe bearing has been extended on tbe petition of tbe said party.

Tbe facts as to tbe extension of time are that, when tbe ease came before tbe court for setting, it was impossible for the court to bear it on that day, there being an accumulation of business, and tbe bearing of tbe demurrer was set over until to-day. When it is called to-day it is discovered that tbe demurrer in question is a general demurrer, and, under tbe practice of tbis court, cannot be entertained. Leave was given to tbe defendant to amend, which has been done, and tbe bearing has been set for next Monday.

Tbe motion is made under § 13 of tbe Act of March 1, 1902 (Compilation, p. 849), as follows:

“Every remedy to secure tbe effectiveness of a judgment shall be void if tbe suit be suspended on petition of tbe party in whose favor tbe remedy was granted; or if tbe date fixed by tbe court for tbe bearing be extended on tbe petition of tbe said party, except in case tbe petition for suspension of proceedings or extension of time be based upon force majeure properly proved.”

I tbinlc I shall have to deny the motion. There are two grounds. It is perfectly true that this Act of March 1, 1902, to secure the effectiveness of judgments (Compilation, p. 849), is a special act and is very strict in its terms. It is adopted from the Spanish Code of Civil Procedure, very much modified however, and pursues a good many of the details of that Code. It is to be construed with a view to advance the remedy sought, but at the same time must not be pressed beyond the fair meaning of the words. The motion is to declare the remedy void, because the date fixed by the court for hearing has been extended upon the petition of the plaintiff.

1.' In the first place, I do not think this comes within the earlier provision of § 13, that every “remedy” to secure the effectiveness of judgments shall be void in certain cases, because the present condition of the case does not come within the proper meaning of the word “remedy,” so far as this statute is concerned. Turning to § 2 of the act, § 5234 of the Revised Statutes of Porto Rico, we are told that if the obligation be for the payment of any sum of money, — and I take it that is the provision under which this suit is brought, — if the obligation be the payment of any sum of money, the provisional remedy shall consist of the attachment of sufficient property of the debtor to cover the amount'claimed. It would seem, then, that the remedy contemplated by this statute is the attachment, not the order of attachment. The order is a prerequisite, of course, but that is not the definition of the word “remedy.” The order of attach* ment does not specify what particular property shall be levied on, — that is, it does not need to, — but the actual attachment does, and we are told here that the remedy in this case is the attachment. I take it that that means the actual levy by the marshal oil sufficient property of the debtor. So that it would seem as if the remedy is not at present in a condition for the motion to be sustained under § 13.

2. And further, the second reason is this. There was no' “suspension of suit,” and I do not think that the “extension of hearing” in this particular case is that contemplated by the second part of § 13, “if the date fixed by the court for the hearing be extended on petition of the party.” This extension was as much for the convenience of the court as anything else. It may be doubted if “hearing” refers property to a mere preliminary like a demurrer. Hearing would property be hearing on the merits. It would seem to be “hearing of the suit,” as it is “suspension of the suit” in question. But at all events, even if the demurrer had been heard on the first day, it would have been overruled, because a general demurrer; and the extension of a time to hear a void demurrer can hardly be within the reason of the statute. So that it seems to the court, as_ it stands right now, the motion must be denied. Of course what may happen later by further extensions is another question. I do not pass on that at all. Conditions may arise that would make § 13 applicable, but I do not think it is applicable just at present.

The motion to declare the attachment void, therefore, is denied, and the demurrer will be heard Monday.