Fernández Méndez v. Pastoriza

43 P.R. 859

• Court: Supreme Court of Puerto Rico
• Decided: July 26, 1932
• Docket: No. 5689
• Status: Published

Opinion

Mr. Justice Audrey

delivered the opinion of the Court.

The defendant spouses in this case have appealed from a judgment directing them to pay to the plaintiff the sum of $6,000, together with interest thereon and costs. Said judgment is presumed to he correct until the contrary is shown.

Of the twelve grounds of appeal urged by the appellants, we can only consider the first two, which concern certain demurrers interposed to the complaint, for the remaining grounds relate to the evidence introduced at the trial, and which is unknown to us, as the stenographic transcript of the evidence approved by the lower court for this appeal was not included in the record. The appellee did not file a brief nor did he appear at the hearing of the appeal.

The first error assigned is that the court erred in deciding that the complaint stated a cause of action. In order to dispose of this objection we must summarize the allegations of the complaint.

The complaint was filed on September 17, 1930, as in an action of debt, and it was alleged therein that on July 26, 1928, the plaintiff delivered to the defendant spouses, as a loan, the sum of $6,000 and the defendants agreed to return the same in a period of two years, and to pay interest thereon at the rate of 1 per cent at the expiration of each month, and the sum of $500 for interest, costs, expenses, disbursements, and attorney’s fees in case of judicial claim; and that on July 26, 1930, the period fixed for the payment of the principal amount on the debt expired without the same, nor the interest, being paid. On those allegations plaintiff prayed for a judgment directing the defendants to pay $6,000, together with costs and any other proper relief.

Although every demurrer to a complaint must necessarily be based on the facts therein alleged, which must be taken as true for the purpose of the demurrer, however, the argument under said assignment is predicated on facts not alleged in the complaint but in the answer thereto or which were proved at the trial. Notwithstanding this, we will say that, taking as true the facts set forth in the complaint, we must conclude that the error assigned is nonexistent, since the complaint states that the plaintiff delivered as a loan to the defendants the sum mentioned, to be returned in two years, and that such period has expired without the debt having been paid.

The second assignment, which is based on the failure to make the appellee’s wife, Josefina Santa González, a party plaintiff, does not exist either, for the complaint does not show that the plaintiff was married.

For the reasons stated the judgment appealed from must be affirmed.

Mr. Justice Córdova Dávila took no. part in the decision of this case.