Martínez v. Méndez

33 P.R. 13

• Court: Supreme Court of Puerto Rico
• Decided: April 7, 1924
• Docket: No. 3198
• Status: Published

Opinion

Mr. Justice Wole

delivered the opinion of the court.

The appellant objects to the tardiness of the brief of ap-pellee. Generally the court feels bound to condone such tardiness if the brief arrives before the hearing and no prejudice is shown appellant. The penalty frequently in such case is a postponement if appellant so desires.

The technical objection of appellant sends ns to appellant’s own brief. It fails to contain an assignment of errors as required by onr rules, therefore we shall regard some of the principal matters and ignore the immaterial ones.

Appellant complains of the case being set. He seems to think that the court below had no right to proceed without showing jurisdiction over the person of the defendant. The latter, however, appeared and there is no force in this idea. A demurrer to an answer being overruled, the case is ready to he set and we fail to understand how such action of the court is not immediately effective. Nor should the setting be delayed because the complainant wished to amend the complaint, if, as here, the defendant agrees to the amendments.

Appellant complains that the court gave him no time to make the proposed amendments to the complaint, but he does not show us that the amendments were so important that they could not be made at the trial table. The amended paper or pleading might even be filed after the trial nunc pro tunc,- so long as the parties and the court knew the issues.

Appellant asked for a change of venue on the ground of partiality in the court. This partiality against the com-plaintant consisted in. the atmosphere created by reason of various previous suits, some of them connected with this litigation, wherein appellant lost. It must be presumed however that a court of justice will consider every fresh case on its merits and not bring into it the impressions produced in other litigations. The appellant does not convince us that the district judge was in fact partial.

A continuance is always within the sound discretion of the trial court and appellant does not convince us of an abuse.

We find that the answer to the complaint was sufficient and answered each paragraph of the complaint, even though some of the clauses of the answer made no specific reference to the corresponding clause of the complaint. The mere fact that a demurrer to a complaint- is overruled does not help the case of a complainant at the trial.

A complainant is not exempt from proving his case merely because he notifies the other side of the alleged lack of jurisdiction of certain events and defendant does not counter to this -writing. The complainant was alleging the nullity of a judicial -sale and was bound to prove his case, and could not construe the failure to counter as an admission. The court below found that the facts showed that the defendant had acquired a title as against complainant by reason of a judicial sale, and we find no error in this finding.

The judgment appealed from must be

Affirmed.

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