Olivieri v. Aguilú

33 P.R. 612

• Court: Supreme Court of Puerto Rico
• Decided: July 31, 1924
• Docket: No. 3296
• Status: Published

Opinion

Me. Justice Hutchison

delivered the opinion of the court.

The court below after a trial on the merits dismissed an action for the restoration of the possession of real property by way of injunction; and appellant now says that:

“1.- — The court below erred in not rendering judgment on the pleadings.

“2. — The court below erred in weighing the evidence and rendering judgment against the evidence and the law.”

The motion for a judgment on the pleadings was based on a defective verification of the answer. Defendant offered to amend if the court deemed it necessary and did amend before the rendering of judgment. Instead of disposing of the motion at the time it was made, the court took the matter under advisement, and proceeded with the trial of the case. That, of course, is not commendable practice and assuming that the verification was fatally defective, the refusal of the court to pass upon the question so raised before proceeding with the trial, if objected to by plaintiff, probably would have required a reversal. But plaintiff neither protested nor took an exception, and the objection to the amended verification, accepted as sufficient by the court below, comes too late when made for the first time. on appeal.

Conceding for the sake of argument that appellants’ theory of the law covering other aspects of the instant case is correct, in a general way, yet a careful examination of the evidence discloses no such manifest error in the weighing thereof as to justify this court in disturbing the conclusion reached by the trial judge, save in so far as the award of costs is concerned. We find in the record, all things considered, no adequate basis for the pronouncement in this regard.

The judgment appealed from should be modified accordingly and as modified affirmed.

Modified and affirmed.

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