Marix v. Acevedo

12 P.R. Fed. 161

Opinion

SamiltoN, Judge,

delivered tbe following opinion:

In bis answer filed to tbe complaint in tbis case tbe defendant denied under oatb that be is in possession of tbe property sued for. It is true that tbe affidavit is not made by tbe defendant in person, but by bis attorney, but tbis was done on tbe usual ground of tbe absence of tbe defendant. It must be held to bind tbe defendant fully.

Tbe defendant after losing tbe case applies for á new trial on tbe ground that tbe ruling of tbe court denying him' tbe right to prove that be owned another piece of property was a sur prise, admitting at the same time that it was his error. In effect he wishes to set up that he is in possession of the land sued for, but that it does not belong to the plaintiff, on the ground that the defendant has been in possession in good faith for the time required by the law of prescription .of Porto Rico_.

The question is one of discretion, which, because it is not revisablc, appeals with all the more force to the court. Nevertheless it is impossible to grant the motion. The defendant having disclaimed under oath, it would be impossible under any rule of pleading to permit him now after verdict to tile an entirely different defense and say that he is in possession. He-dióse his defense and must stick to it. The court cannot help him. To do so would authorize a departure, an entirely different defense after an inconsistent defense had failed on the trial.

The motion is denied. It is so ordered.