delivered the opinion of the Court: Paragraph 3 of Article 1691 of the Law of Civil Procedure provides that for failure to take evidence in any instance when it should be taken according to law, an appeal in cassation for error of procedure will lie.
According to the provisions of Paragraph 2 of Article 861 the introduction of expert testimony in the second instance as requested, could not be allowed inasmuch as said evidence having been offered and admitted in the first instance, the time was lost by appellant without exercising the *117diligence which should have been exercised in a matter of so much importance, as it appears on the reverse of page 985 of the 5th section of the record that the requisitory letter -for the acceptance of the expert Vails residing in Ponce, was delivered to the solicitor for appellant, Don To-más Agrait y Font, on the 18th of August, 1894, and it appears to have been received in the Ponce Court, on the 3rd of September of the same year, reverse of page 1931 of the sixth section, from which it is seen that, the said solicitor lost sixteen days before he forwarded said requisitory letter; because there appears to be no doubt that it was delivered to him, and this time was afterwards necessary for the introduction of appellant’s own evidence ; for which reason the failure complained of by appellant is the result of his own negligence.
We adjudge that we should declare, and do declare, that the appeal in cassation for error of procedure, taken by the estate of Verges, does not lie and tax the appellant with the costs. This judgment will be communicated to the Court below in due time, and the appeal for error of law will be proceeded with.
Associate Justices Hernández, Sulzbacher and MacLeary concurring.