Fernández v. Torres

24 P.R. 310

• Court: Supreme Court of Puerto Rico
• Decided: July 13, 1916
• Docket: No. 1456
• Status: Published

Opinion

Mr. Justice Audrey

delivered the opinion of the court.

During the pendency of an action brought by Margarita Torres against Guillermo Arbona to establish her rights in a civil partnership, etc., the appellant, José I. Fernández Se-garra, asked leave to file a complaint in intervention which the court refused on the ground that he had not such an interest in the suit as would entitle him to intervene. On bis motion the court entered judgment upon its said ruling and Fernández Segarra took the present appeal therefrom.

The appellant alone appeared before this court and submitted his argument in a short brief.

The facts alleged in the complaint are substantially as follows:

That the appellant brought the said action as attorney for Margarita Torres by virtue of authority conferred upon him by her personally and in the name of her minor children to take the necessary steps to establish, her rights in a civil partnership composed of herself and Guillermo Arbona, to recover the capital she delivered to him, to assert the right of her children to be acknowledged by their natural father, Guillermo Arbona, and to claim from him a larger snm for their support than he was supplying, for which the plaintiff was to receive a remuneration of 45 per cent of whatever might be recovered in property or cash; that after the action was begun the plaintiff’s client, without advising him, compromised with Arbona and agreed to accept an amount much less than the amount which the plaintiff had refused to accept; that his relations with his client having been severed,, she' is endeavoring to ridicule his right to the quota litis agreed upon, wherefore he has sued her for breach of the contract entered into between them; that notwithstanding-the compromise the attorney for Guillermo Arbona has moved that the case be set for trial and that the plaintiff has an interest in the success of the action brought by Margarita Torres and in her obtaining the largest possible amount, as the remuneration agreed upon is to be paid him on the total amount recovered.

Section 72 of the Code of Civil Procedure provides that any person may intervene in an action or proceeding who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both, such intervention being made by a complaint setting* forth the grounds, on which the intervention rests and filed by leave of the court.

In the case of Smith v. Gale, 144 U. S. 520, in considering a statute similar to section 72 of our code, the Supreme Court of the United States said that it was not disposed to hold that the lower court might not have permitted the complaint in intervention to be filed, but that as such complaint must be filed by leave of the court, this is a limitation of the right to intervene which presupposes a certain discretional power on the part of the court. The order denying permission to file the complaint was sustained.

In the present case the lower court refused to allow the appellant to intervene and we are of the opinion that it did not abuse its discretion; for although the intervenor may have an interest in the success of the plaintiff’s action, as a question could arise as to whether he could prevent a compromise by his client, as well as other questions which occur to us but which we do not wish to raise at this time, we prefer to affirm the decision appealed from.

Affirmed.

Chief Justice Hernández and Justices Wolf, del Toro and Hutchison concurred.