Haeussler v. Padilla

46 P.R. 14

• Court: Supreme Court of Puerto Rico
• Decided: January 12, 1934
• Docket: No. 6328
• Status: Published

Opinion

Mb. Justice Aldbey

delivered the opinion -of the court.

TJpon the death of José D. Padilla, an action was brought against his two minor children for the recovery of money upon certain obligations incurred by the former, and in order to secure the effectiveness of any judgment that might be rendered in the action an attachment was levied on two insurance policies on the life of José D. Padilla, payable upon his death, to his executors, administrators, or legal representatives. The court subsequently vacated^this attachment. Sometime afterward, a final judgment was rendered in favor of the plaintiff, with costs but without including attorney’s fees, which had been requested in the complaint.

The plaintiff took the present appeal from said judgment because he was not awarded attorney’s fees, and in order to review the order vacating the attachment which he had levied. These are the two grounds that the appellant assigns in his brief in support of his appeal. The appellees have asked us to dismiss said appeal, on the ground that it is frivolous as to the disallowance of attorney’s fees, and tardy as to a review of the order whereby the attachment was vacated.

The appellant admits in his brief that the awarding of attorney’s fees by the lower court is a matter within the discretion of said court, as indeed it is, but that in this case such fees should have been awarded. The examination of the record convinces us that the appeal is frivolous in this respect, as the complaint only alleged that the father of the appellees owed the plaintiff certain sums on account , of two loans and a purchase, without transcribing or attaching the documents which evidenced obligations, and we fail to see that the minor children of the debtor were obstinate in opposing the complaint, since they had no knowledge of these obligations in which they did not intervene.

An order vacating an attachment may be reviewed in an appeal from the final judgment in the action, as was decided by this court in the case of National City Bank v. De la Torre, 44 P.R.R. 439. We shall confine ourselves to a citation of that case and will not deal with the question of whether or not it is necessary to have excepted to the decision in order to review the same, because, in any event, we find that the appeal taken from the order vacating the attachment is frivolous inasmuch as the question it involves was decided against the appellant in the case of Schlüter v. Heirs of Días, 41 P.R.R. 875, on which the lower court based its ruling, and lathing has been adduced against such decision.

The appeal must be dismissed.