Suárez v. Solís

53 P.R. 148

• Court: Supreme Court of Puerto Rico
• Decided: April 29, 1938
• Docket: No. 7718
• Status: Published

Opinion

Mr. Justice “Wole

delivered the opinion of the court.

In a divorce suit Elena Suárez, obtained a judgment against her husband. The latter appealed. The ap'pellee moves -to dismiss the appeal for two reasons, first, because the notice of appeal was not served on her attorney, and, second, becanse the appeal has not been prosecuted with dne diligence.

It sufficiently appears from the record that the notice of appeal was taken to the office of the attorney for the appellee and delivered to the father of the said attorney, and that the said father is also practicing law.

To justify the lack of good faith on the part of the appellant, the appellee shows that since the date of the appeal, or the 11th of May 1936, the appellant has obtained a great number of extensions of time, either alleging no reasons for such extensions or saying that the attorney for ihe appellant was very busy. The appellee made out a prima facie case for the dismissal of the appeal.

The appellant, in his written opposition to the motion, does not deny the facts set forth therein, hut says that in reality what happened was that the stenographer’s notes which were turned over to him fairly early in the proceeding were misplaced by his attorney and' never -came to light until recently; that, according to his attorney, appellant was too poor to ask the stenographer for another copy. The motion of the ap-pellee discloses that the stenographer’s notes only amounted to 61 pages.

We are of the opinion that the fact of having mislaid the notes ought to have been presented as an excuse to the court at an earlier stage. Then perhaps the other side might have offered to loan the appellant the stenographer’s notes, if she had them, or the appellee or the court would have had the opportunity to make some other offer or take some other steps to enable appellant to complete the record.

We feel bound to hold that the excuse was not well founded. The fundamental reason for noncompliance is not sufficient and under Rule No. 59 of this court, the appeal should Tje dismissed.