after making the above statement of facts, delivered the opinion of the court.
The findings of fact contained in the judgment appealed from are accepted.
Ramón Pastor Diaz duly offered to submit documentary evidence for the taking of which proper letters requisitorial were issued to this Supreme Court, and these do not appear to have been returned duly executed to the Humacao court. Moreover, he requested that the defendants, Carolina Luzu-naris and Herminio Díaz Navarro, be summoned to appear at the oral trial to testify or answer under indecisive oath such questions as would in due time be propounded to them, which request was granted by an order of May 6, 1902, the 16th of said month being fixed therein for the hearing and the proper writs issued for said summons, which writs do not appear on the record to have been executed and returned.
By an order made in furtherance of justice this court called for a copy of the final decision or decisions rendered on the appeal in cassation for error of law from the judgment rendered by the Humacao court, November 13, 1901, in the incidental issue for annulment of proceedings had at the trial of the divorce suit instituted by Carolina Luzunaris against Ramón Pastor Díaz, and from the certificate it appears that the judgment rendered by the court of Plumacao, November 13, 1901, was vacated as to the costs, by a decision rendered May 22, 1902, ordering said costs to be understood as without special imposition.
*53Notwithstanding the fact that Carolina Lnznnaris was adjudged to pay the costs in the judgment rendered by the District Court of Humacao, November 13, 1901, which declared that the incidental issue for annulment of proceedings, raised by Ramón Pastor Diaz at the trial of the divorce suit brought by the former against the latter, was properly raised, said judgment was reversed by this Supreme Court, as to the portion thereof referring to the costs, which was ordered to be given in the usual manner, that is to say, without special imposition; and, therefore, the judgment in question had no executory force as to this matter. Hence, Pastor Díaz can show no claim against Carolina Luzunaris, by reason of said judgment, which may serve as a basis for a contention as to whether or not he is entitled to recover such a debt out of the proceeds of the property of Carolina Luzunaris, in preference to the fees due Attorney Diaz Navarro, as attorney for the latter.
Although paragraph 6 of article 323 of the( Law of Civil Procedure was not applicable in connection with the denial by the Humacao court of the postponement of the trial applied for by counsel for Ramón Pastor Diaz, since the period for taking evidence and, that for the hearing of the arguments of both parties are different things, the refusal of such postponement in the case at bar, without the presence of counsel for plaintiff, did not produce the effect of leaving the latter without defense, inasmuch as all the proofs of the defendants had been taken, for which he was duly cited, and although it is true that Pastor Diaz had offered to submit documentary evidence, as also that of confession in court, the former was not taken through Ms own fault; he having failed to return the letters requisitorial addressed to this Supreme Court for that purpose; and as regards the interrogatories that were to be answered by defendants, as these were not prepared in writing, it is impossible to say whether they were pertinent or not, and whether or not. the omission of such *55evidence could have prevented the presentation of any defense; aside from the fact that whatever might have been the result thereof, it could never have destroyed the documentary evidence on file with the record, which shows the plaintiff has no title that could serve as a ground for an action in intervention based upon a preferred right.
Under rule 63, of General Order No. 118, series of 1899, costs shall always he paid by the litigant who loses his case on all points. We a judge that we should affirm and do affirm the judgment appealed from, as delivered by the District Court of Humacao, May 26, 1902, whereby Herminio Díaz Navarro and Carolina Luzunarias y Domínguez are released from the complaint, with costs against the plaintiff, whom we likewise adjudge to pay the costs of this appeal. 'The record is ordered to he returned to said court with the proper certificate.
Chief Justice Quiñones and Justices Pigueras, Sulzbacher and MacLeary concurred.