Wolkers v. Masson

27 P.R. 259

• Court: Supreme Court of Puerto Rico
• Decided: March 31, 1919
• Docket: No. 1875
• Status: Published

Opinion

Me. Justice Wole

delivered the opinion of the court.

The appellant, as a first ground of error, insists that She should not be made to seek her alimony at the house of her husband. Looking at the judgment in this case, we find that it contains no such pronouncement. It awards the appellant $40 monthly for alimony, but makes no specific mention of the place where it should be paid. The said judgment, however, does recite that the opinion forms part of the judgment. The opinion did not form part of the original transcript, but was brought here afterwards. Can we consider that opinion as part of the judgment on appeal? Section 233 of the Code of Civil Procedure requires a copy of the judgment to form part of the judgment-roll. Section 299 of the Code of Civil Procedure, as amended by Act No. 70 of March 9, 1911, p. 227, says that the record of appeal shall be constituted by the judgment-roll and the notice of appeal. The judgment-roll as made up in this case did not include the opinion as part of the judgment. This is made more evident by the notice of judgment issued by the clerk of the district court wherein he recites that a judgment had been rendered which was duly recorded (registrada) in the proper book. The judgment a's recorded did not contain a copy of the opinion. Moreover, the recital in the judgment that the opinion forms part thereof may perhaps be construed to be a compliance with section 227, as amended, wherein the court is required to file a brief statement of fact. The opinion should not generally be relied on for a part of the judgment, but the paper writing purporting to be the judgment should contain all the dispositive pronouncements without reference to other documents.

W.e are inclined to think that the wife should not be required to go to her husband’s house for her alimony, especially as a special depositary had been fixed for her by the court, but this obiter on our part is advisory rather than binding on the court below.

The court below also refused to award counsel fees pen-dente lite. We think this was error. Some compensation a wife ought to be able to give her lawyer in order to obtain adequate representation during the litigation. The lawyer who represents her is entitled to pay for bis services even if be loses the suit. The amount of it is in the reasonable discretion of the court, but as we have this day in Certiorari No. 238 allowed another order of $200 to prevail and as we are not certain whether this $200 is not the whole -matter in controversy, we shall simply reverse the judgment in this regard, leaving it to the court below to fix the amount of the fees if the said $200 does not relate the fees attempted to be recovered in this case.

The judgment appealed from should be reversed in so so far as the claim in the complaint for attorney’s fees is not allowed, and affirmed in other respects.

Affirmed in part.

Chief Justice Hernández and Justice Aldrey concurred. Justices del Toro and Hutchison dissented on the point that the opinion of the trial court cannot be considered.