Heirs of Rosario v. Heirs of Cortijo

83 P.R. 653
CourtSupreme Court of Puerto Rico
DecidedOctober 6, 1961
DocketNo. 12363
StatusPublished

This text of 83 P.R. 653 (Heirs of Rosario v. Heirs of Cortijo) is published on Counsel Stack Legal Research, covering Supreme Court of Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heirs of Rosario v. Heirs of Cortijo, 83 P.R. 653 (prsupreme 1961).

Opinion

Mr. Justice Blanco Lugo

delivered de opinion of the Court.

In January 1951, there was brought in the Superior Court, San Juan Part, an action in the nature of revendi-cation by some 49 plaintiffs who were members of certain successions, whose common predecessor was Francisco Rosario. There were joined as defendants some 45 persons, also members of different successions. After certain preliminary proceedings, on February 24, 1954 an order was entered authorizing the summons by edicts of a considerable number of defendants who could not have been summoned personally. On the following May 4 a pretrial conference was held between the parties, as a result of which the plaintiff was granted a period of 10 days to commence the publication of the edicts. The corresponding order was notified on May 10.

[655]*655On November 8, and pursuant to the provisions of Rule 11 of the Rules of Administration for the Court of First Instance,1 the Administrative Judge of that Court issued an order requiring the parties to state within a period of 10 days the reasons why the action should not be dismissed, it appearing from the record that during the past six months no action had been taken by either party. It is to be noted that by this date there had not expired six months, counted as of the notice of the order granting a ten-day period to commence the publication of the edicts.

On November 26, 1954, judgment was rendered dismissing the action, inasmuch as the parties did not appear to show cause for their inaction.

On February 24, 1955, the plaintiff moved to vacate the judgment by means of a verified motion alleging, among other things, the following facts:

“The plaintiffs were publishing- the edicts ordered by this court during the period granted therefor, as evidenced by the fact that the notice or edicts in this case were published in El Impartial in May and June 1954, in its editions of May 2, 9, 16, and 23 and June 1, 1954.
“The plaintiffs in this case are insolvent and have no funds or means, and in order to pay $64, which is the cost of publication of the edicts, they were compelled to wait until February 1955, when they were able to obtain the money by a loan made by the plaintiff, or one of the plaintiffs, Aurelia Rosario Cor-tijo.”

To this motion was attached a statement by the managing [656]*656editor of the newspaper El Impartial, which is published in this city, attesting to the fact that the edicts had appeared in the editions of that paper corresponding to May 2, 9, 16, and 23 and June 1, 1954. At the time of the hearing of this motion the attorney for the plaintiff had withdrawn from the case. Despite this fact and the fact that the corresponding hearing was apparently held without the appearance of the plaintiff or of his legal representative, the court denied the motion. Notice of this order was served on the withdrawing attorney despite the fact that the letter of withdrawal already appeared in the record.

On July 23, 1957, one of the plaintiffs appeared personally and filed a motion for “reinstatement” of the action. After several proceedings were had, an order was finally entered on October 30, 1957 setting aside the dismissal judgment. Some of the defendants appealed from this order.

After making an analysis of the facts, the trial court stated that:

“On May 4, 1954, after setting the hearing of a pretrial conference, a period of 10 days was granted to the plaintiffs to commence the publication of the edicts for the purpose of summoning many of the defendants, pursuant to the order of the court of February 24, 1954. Apart from the documents which were attached after judgment was rendered, the first edict could have been published on May 14, 1954. The period comprising the month of their publication, once a week, and the 40 days granted to the defendants to appear after the last edict, extended up to July 23, 1954. The plaintiffs could not take any action, that is, they could not move for entry of the default of the defendants in the event they failed to appear, and for the setting of the case, for at least until the latter date, July 23, 1954. Obviously, the six months’ period required by Rule 11 had not expired between July 23 and November 26, 1954, the date judgment was rendered. It also appears from the documents which were attached to the record subsequent to the judgment that the edicts were published on May 2, 9, 16, and 23 and June 1, 1954. The defendants had 40 days to appear, namely, until July 12, 1954; and in default thereof the plaintiffs [657]*657could not seek relief against them until this date. Nor did a period of six months elapse between July 12 and November 26, 1954.
“Since the power of the Administrative Judge to enter a dismissal judgment is derived solely and exclusively from Rule 11 of Administration for the Court of First Instance, such judgment rendered before the six months’ period of inactivity had expired is void per se and we so hold. We need not therefore discuss the operation of the subsequent order of Judge Abraham Díaz González refusing to vacate the judgment, which is nonexistent.”

The appellants insist that the motion for reinstatement of the case should have been denied outright because it was filed after the expiration of the six month’s period provided by Rule 60(b) of the Rules of Civil Procedure of 1943, and, further, that the conclusion of the trial court on the nullity of the judgment is erroneous, since such nullity does not appear from the face of the record as the record itself showed on the date judgment was rendered.

It can not be denied that under the provisions of the former Rule 60(b) of Civil Procedure, the motion to vacate the judgment founded on mistake, inadvertence, surprise or excusable neglect should have been made within a period of six months after entry of the judgment. Great Am. Ins. Co. v. District Court, 67 P.R.R. 529 (1947); People v. 632 Sq. Meters of Land, 74 P.R.R. 897 (1953); Gerena v. Superior Court, 79 P.R.R. 528 (1956). However, that period was not applicable where the ground adduced for seeking such relief was fraud, cf. Martínez v. Superior Court, ante, p. 345, or the nullity of the judgment. It was so construed in California, whose § 473 of the Code of Civil Procedure, equivalent to § 140 of our former Code of Civil Procedure (32 L.P.R.A. § 725), served as a pattern to Federal Rule 60(b), Roca v. Thomson, 77 P.R.R. 396 (1954); Martínez v. Superior Court, supra; 7 Moore, Federal Practice [658]*65823 (2d ed.). Regarding the power of a court to correct its judgments, it was said in Olivera v. Grace, 122 P.2d 564, 566 (1942), that “Apart from statutory authority, all courts are said to have an inherent power to correct their records so as to make them speak the truth, and under this inherent power courts have frequently corrected their final judgments when, because of clerical errors or omissions, the judgments actually rendered were not the judgments intended to be rendered... Similarly, a court has inherent power, apart from statute, to correct its records by vacating a judgment which is void on its face ...” See Alcázar v. District Court, 67 P.R.R. 680 (1947); People v. 632 Sq. Meters of Land, supra; Iturriaga v. Fernández,

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83 P.R. 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heirs-of-rosario-v-heirs-of-cortijo-prsupreme-1961.