González v. González Reyes

53 P.R. 380

• Court: Supreme Court of Puerto Rico
• Decided: July 5, 1938
• Docket: No. 7677
• Status: Published

Opinion

Me. Justice Tbavieso

delivered the opinion of the court.

The plaintiffs and appellees have moved to dismiss this appeal on the ground of a violation of sections 297 and 299 of the Code of Civil Procedure and of Rule 59 of this court. The facts are set forth in two certificates issued by the clerk of the court a quo at the request of both parties. It appears therefrom that on February 27, 1936, the District Court of Humacao rendered .judgment in the instant ease and that on the following day a copy of the notice of said judgment was filed in the office of the clerk of the said court; that on the same day, February 28,1936, Ernesto Fernando Schlfiter, one of the defendants, filed a motion to set aside the judgment and another motion for reconsideration as well as a notice of appeal; that on December 1, 1936, the court made an order denying said motions; that on D'ecember 17, 1936, Schlfiter appealed from the judgment of February 27, 1936, and from the orders of December 7 of the same year, and that on December 21 he secured from the court an order directing the stenographer to transcribe the notes taken by him at the trial of the case and at the hearing of the motions to set aside and to reconsider the judgment of February 27, 1936. The transcript of the evidence was filed in this court on March 18 of the current year and that of the record on the 9th of the following April.

The motion for reconsideration filed by the appellant on February 28, 1936, interrupted the statutory period for taking an appeal (Saurí v. Saurí, 39 P.R.R. 461, 45 F. (2d) 90), and as such period began to run only from the moment of the disposition of the motion for reconsideration (Pérez v. Díaz, 42 P.R.R. 345; Dávila v. Collazo, 50 P.R.R. 475), the notice of December 17, 1936, whereby Schliiter appealed from the judgment of February 27, 1936, and from the orders of December 7, 1936, was filed within the time fixed by law. The appellant ivas not precluded from filing a motion to set aside and another for reconsideration together with the notice of appeal, since the appeal did not deprive the court of jurisdiction to dispose of those motions. Pérez v. Díaz, supra; Saldaña v. Comas, 41 P.R.R. 336; Martínez v. Independence Indemnity Co., 36 P.R.R. 775.

The case does not involve the application of Act No. 67 of 1937 (Session Laws, p. 190).

The motion to dismiss must be denied.