Pillot v. Pillot

22 P.R. 444

• Court: Supreme Court of Puerto Rico
• Decided: May 18, 1915
• Docket: No. 1251
• Status: Published

Opinion

Mr. Justice Aldrey

delivered the opinion of tlie court.

Martina Pillot brought an action in the District Court of Gruayama against Josefa Pillot for the recovery of a certain sum of money which, the former alleged she had paid out for account of the latter. The defendant did not enter appearance and the secretary of the court entered a default judgment against her.

A short time thereafter Eugenio Balestier appeared in the action and filed a motion praying the court to order that he be joined as a party defendant and served with copies of the complaint and summons, according to the provisions of sections 63 and 74 of the Code of Civil Procedure, so that he might answer the complaint at the proper time in opposition to the plaintiff’s claim. He alleged that the plaintiff is the mother of the defendant, who is his wife; that notwithstanding the fact that the complaint refers to alleged payments made for account of his wife, lie has not been made a- party to the action; that he is interested in proving the falsity of plaintiff’s allegations whose sole purpose is to despoil the conjugal partnership composed of the defendant and himself of the property belonging to it, the said partnership being liable to dissolution as the consequence of an action for divorce which is pending, and that he has never i-enounced the management of the conjugal partnership.

From the ruling sustaining the said motion Mar úna Pillot took the present appeal praying for its reversal and, after a long delay in filing the transcript of the record, her attorney argued the case by brief and orally, the respondent filing a brief only.

Sections 63 and 74, on which the motion is based and on which the lower court based the ruling appealed from, read as follows:

“Section 63. — Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. And in an* action to determine the-title or right of possession to real property which, at the time of the commencement of the action, is in the possession of a tenant, the landlord may be joined as a party defendant.

& $ &

“Section 74.- — -The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in, and thereupon the party, directed by the court, must cause to be served a copy of the summons in the action and the order aforesaid, in like manner as provided for the service of the summons, upon each of the parties ordered to be brought in, who shall have ten days or such time as the court may order, after service, in which to appear and plead; and in ease such párty fail to appear and plead within the' time aforesaid, the court may cause his default to be entered and proceed as in other cases of default, or make such other order as the condition of the action and justice shall require; and when, in an action for the recovery of real or personal property, a person not a party to the action, but having an interest in the subject thereof, makes application to the court to be (made a party, it may order him to he) brought in by the proper amendment.”

The first of these sections is not applicable to cases in which a person who has not been sued and has an interest adverse to that of the plaintiff wishes to intervene in the action, the statute applicable in such cases being section 72. Pillot v. Pillot and Balestier, 21 P. R. R., 188. The object of section 63 is to indicate to the plaintiff what persons should be made parties defendant. Therefore, this provision cannot serve as ground for a motion for leave to intervene as defendant or for a ruling allowing such intervention.

Nor is section 74 applicable to the present case, for its object is to authorize the court when unable to reach a complete determination of the controversy without the presence of other persons who are not parties to the suit to order their appearance motu propio.

The decision appealed from should be

Reversed.

Chief Justice Hernandez and Justices Wolf, del Toro and Hutchison' concurred.