Lizardi v. Marrero

Supreme Court of Puerto Rico

Lizardi v. Marrero

33 P.R. 800

CourtSupreme Court of Puerto Rico

DecidedDecember 16, 1924

DocketNo. 3309

StatusPublished

This text of 33 P.R. 800 (Lizardi v. Marrero) 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

Lizardi v. Marrero, 33 P.R. 800 (prsupreme 1924).

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Opinion

Me. Justice Aldkey

delivered the opinion of the court. In this action a quantity of leaf tobacco was attached to secure the effectiveness of such judgment as might be rendered in favor of the plaintiff. He moved the trial court to order the sale of the tobacco because it was perishable and the court sustained the motion on August 9,. 1921. Later final judgment was rendered in the action, against the defendant and after it was affirmed on appeal by the Supreme Court the defendant moved the lower court to set aside the order for the sale of the tobacco. This motion was overruled on February 25, 1924, and from that ruling the present appeal was taken and the appellee now moves for its dismissal on the ground that the order is not appealable.

Although subdivision 3 of section 295 of the Code of Civil Procedure authorizes an appeal from a special order made after final judgment, the order in this' case is not of that class, for although made after judgment, the question of whether or not the sale was proper had been decided before rendering judgment; therefore, the refusal to set aside the order of sale does not dispose of a question not at issue in the action. Ayoroa v. Estate of Méndez, 13 P.R.R. 274. Furthermore, the order of August 9, 1921, was appealable with the final judgment in the action in accordance with the last subdivision of section 14 of the Attachments Act; therefore, any fatal defect in the order of sale should have been set up in the appeal from the final judgment and not thereafter, for, as we said in the ■ case [802]*802of Hernaiz, Targa & Co. v. Vivas, 20 P.R.R. 99, as a general rule orders refusing to vacate previous appealable orders are not appealable; and in that case we cited the following from Goyhinech v. Goyhinech, 80 Cal. 409: “Where a judgment or order is itself appealable the appeal must be taken from such judgment or order, and not from a subsequent order refusing to set it aside.” •

The appeal must be dismissed.

Appeal dismissed.

Chief Justice Del Toro and Justices Wolf, Hutchison and Franco Soto concurred.

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Me. Justice Aldkey

delivered the opinion of the court. In this action a quantity of leaf tobacco was attached to secure the effectiveness of such judgment as might be rendered in favor of the plaintiff. He moved the trial court to order the sale of the tobacco because it was perishable and the court sustained the motion on August 9,. 1921. Later final judgment was rendered in the action, against the defendant and after it was affirmed on appeal by the Supreme Court the defendant moved the lower court to set aside the order for the sale of the tobacco. This motion was overruled on February 25, 1924, and from that ruling the present appeal was taken and the appellee now moves for its dismissal on the ground that the order is not appealable.

Although subdivision 3 of section 295 of the Code of Civil Procedure authorizes an appeal from a special order made after final judgment, the order in this' case is not of that class, for although made after judgment, the question of whether or not the sale was proper had been decided before rendering judgment; therefore, the refusal to set aside the order of sale does not dispose of a question not at issue in the action. Ayoroa v. Estate of Méndez, 13 P.R.R. 274. Furthermore, the order of August 9, 1921, was appealable with the final judgment in the action in accordance with the last subdivision of section 14 of the Attachments Act; therefore, any fatal defect in the order of sale should have been set up in the appeal from the final judgment and not thereafter, for, as we said in the ■ case [802]*802of Hernaiz, Targa & Co. v. Vivas, 20 P.R.R. 99, as a general rule orders refusing to vacate previous appealable orders are not appealable; and in that case we cited the following from Goyhinech v. Goyhinech, 80 Cal. 409: “Where a judgment or order is itself appealable the appeal must be taken from such judgment or order, and not from a subsequent order refusing to set it aside.” •

The appeal must be dismissed.

Appeal dismissed.

Chief Justice Del Toro and Justices Wolf, Hutchison and Franco Soto concurred.

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33 P.R. 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lizardi-v-marrero-prsupreme-1924.

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