On Petition for Rehearing.
PER CURIAM.Since our opinion was handed down in this case on June 1, 1937, the defendant, Francisco de la Torre, has moved for a rehearing suggesting that the provisions contained in subdivision 1, section 194, of the Code of Civil Procedure (Revised Statutes and Codes of Puerto Rico 1913, § 5178, subd. 1), authorizing the clerk or secretary of the court to include costs in a default judgment, and the provisions of section 328, subdivision 3 (section 5372, subd. 3), allowing costs to a plaintiff as “of course * * * upon a judgment in his favor,” were repealed by Act No. 38 of Puerto Rico of 1917, amending section 327 of the Code of Civil Procedure. Section 327, as amended in 1917, reads as follows:
“Section 327. Parties to actions or proceedings, including the People of Porto Rico, are entitled to costs and expenses subject to the rules hereinafter provided.
“In all cases where costs have been allowed to one party in an action or proceeding in a district court, said party shall, in the discretion of the district court, be entitled to receive from the defeated party an amount representing the value of the services of his attorney or a part of such amount; Provided, That nothing in this section shall be deemed to allow attorney’s fees to be included in costs taxed against a defendant who shall not have entered appearance in an action or proceeding; And Provided Further, that the fees and costs shall be allowed in the discretion of the judge taking cognizance of the action or proceeding, considering also the degree of blame, if any, of the party against whom judgment is rendered.
“That all laws or parts of laws in conflict herewith are hereby repealed.”
The Supreme Court, in construing section 327 as amended, has held that since its enactment both the imposition of costs in a judgment and the amount allowed rest in the sound discretion of the trial judge. Castro v. Societe Anonyme des Sucreries de Saint Jean, 34 P.R.R. 546, 550. Also that “all laws with respect to costs inconsistent *404with the provisions contained in Section 327 as amended” are repealed, including section 328; that “costs ‘as a matter of course’ do not exist in Porto Rico.” Zorrilla v. Orestes, 28 P.R.R. 698, 700, 701.
In view of the provisions of section 327 as amended and the decisions of the Supreme Court construing them, we conclude that the authority conferred upon the clerk or secretary of the trial court by section 194, subdivision 1, to include costs in a default judgment, was likewise done away with, and that, at the time of the entry of the judgment in question, he was not authorized to include costs therein. This being so, the question is presented whether the judgment is void in its entirety, or only as to the provision imposing costs.
A like question arose in California, the state from which section 194 was taken, in the case of Wallace v. Eldredge, 27 Cal. 495, 496, and- it was there held that the default judgment was void only as to the part the clerk was without authority to enter. Having so held, the case was remanded to the trial court for amendment in that particular. In that case the default judgment, as entered by the clerk, was made payable “in current gold and silver coin of the United States of America,” while the notes sued upon were not made payable in any specific kind of money or currency. For this reason, it was held that the portion of the judgment specifying the kind of money in which the judgment was to be paid was void. The court, however, further stated: “But that entry did not affect, or in any manner impair the validity of the judgment for the recovery of the money, and is as powerless as would be any unauthorized entry in .respect to the obligation or lien of the judgment. Utile per inutile non vitiatur.” Having reached this conclusion, the case was remanded for amendment of the judgment, as above stated. That is what must be done here; and the case having been remanded to the District Court of San Juan, that court should strike from the judgment the unauthorized provision and then proceed and de-. termine, in the exercise of its discretion, ■whether costs and attorney’s fees should or should not be included in the judgment, and, if included, their amount, as provided in section 327, as amended, and section 339 (Revised Statutes and Codes of Puerto Rico 1913, § 5383).
Our present order is: The petition for rehearing is denied. Our prior order of June 1, 19á7, is vacated. The judgment of the Supreme Court is affirmed, except in so far as it affirmed the judgment of the District Court of San Juan as to costs. In that particular it is vacated and the case is remanded to the Supreme Court of Puerto Rico for further proceedings not inconsistent with this opinion. No costs in this court