Rosado v. Hernández

Mr. Justice MacLeary

delivered the opinion of the court.

This case involves the collection of costs, disbursements and attorney’s fees adjudged to the respondent, Rosado, and against the appellant, Hernández. The amount is only $137.20. The facts may be stated as follows:

The plaintiff, Rosado Fussá, brought an action in the District Court of Mayagüez against Agustín Hernandez Mena and another to recover title to real property and secure an injunction. Judgment being rendered in favor of plaintiff with costs against the defendant, Agustín Hernández Mena, the former filed a memorandum of costs, disbursements and attorney’s fees which was approved by the district court to the extent of $137.20. The defendant, Agustín Hernández Mena, appealed from part of the judgment and from the order approving the memorandum of costs; and, after a due consideration of the case, this Supreme Court handed down its decision on May 22, 1911, affirming in all things the judgment and order appealed from.

Such decision of the Supreme Court having been duly communicated to the District Court of Mayagüez, the plaintiff, Arturo Rosado Fussá, requested and obtained from the court two writ's of execution for the recovery of the amount due and set forth in the said memorandum of costs, one of which writs was issued on August 25, 1911, and the other on October '23, 1911. In accordance with the terms of the writ first issued, the marshal of the District Court of Mayagüez attached the house described in folio 2 of the record, but desisted from the execution thereof, proceeding under the writ issued under date of October 23, 1911, to attach the sum of $132.28 belonging to the defendant, Agustín Hernández Mena, which amount the said marshal handed to Angel A. Vázquez, plaintiff’s attorney, on October 26, 1911.

Thereupon, the defendant, Agustín Hernández Mena, presented a motion properly verified on August 19, 1912, to the district court, alleging substantially that the proceeding followed in this case by the plaintiff had been irregular and in violation of section 339 of the Code of Civil Procedure as amended by the act of March 12,^1908, because the writs of execution were issued and levied and the money appropriated to the plaintiff without notification to the defendant by the secretary of the district court or by any other officer of the judgment rendered by the Supreme Court of Porto Rico on May 22,1911, affirming the order of the district court made on January 9, 1911, approving the memorandum • of costs. This motion was duly presented to the court; and, on argument on October 18 last, the district court passed a resolution declaring the same to be unfounded in all its parts, imposing costs on the' mover, and from this resolution the defendant, Hernandez Mena, appealed to this court in due time under the provisions of the appropriate sectipn of the Code of Civil Procedure.

The appellant contends that the District Court of Maya-giiez committed an error in the passing of the resolution aforesaid, because, as he alleges, the mover in his motion of July 19, 1912, had sworn to the same, and therefore it should have been taken as confessed, not having been answered in any manner by the plaintiff. The appellant claims that the trial court in said resolution violated section 132 of the Code of Civil,Procedure and section 339 of the same code as amended by the act of March 12, 1908. lie also refers to the fourth section of the Civil Code in support of bis position.

The Civil Code in the fourth section referred to announces the universal proposition of law to the effect that-all acts executed contrary to the provisions of law are void except when the law preserves their validity. There is no denying this proposition, and it is so well understood and so universally accepted that it was hardly necessary to refer to the statute. Section 132 of the Code of Civil Procedure is arranged in chapter seventh of the said code which treats of the “general rules of pleading.” It provides substantially •that no proof is necessary to sustain the allegations of the complaint when they are not controverted by the answer, but they must be taken for the purposes of the action to be true. This section, as well as the whole chapter in which it occurs, has relation to the pleadings properly so called; that is to say, to the complaint, the answer, and other pleadings which may occur in the regular course of bringing the case to an issue, and cannot be extended, to coyer motions snch as that giving rise to this appeal. It will be seen.that article 339 of the Code of Civil Procedure, as amended by the act of March 8, 1908, relates to matters of costs and to orders made in reference to the same after judgment of the trial court has been rendered in the principal action and all other questions settled in favor of one party or the other. It is provided in the amendatory act that where no objection has been made in due time to a memorandum of costs, which in this case includes disbursements and attorney’s fees, or where objection has been made and the final decision rendered by the trial court thereon, and an appeal has been taken and the order of the trial court confirmed or modified, that the party against whom the costs have been taxed shall deposit the amount thereof with the secretary of the court within five days after notice thereof has been served upon him by the secretary, and further, that in the event of his failure to make such a deposit, writs of execution shall issue for the collection of the same in the same manner as in the case of a regular judgment. Of course, the proper construction of this section would not allow a writ of execution to issue in this case or be levied upon the property of the defendant unless he had been notified of the action of the Supreme Court in affirming the resolution of the court below, approving the memorandum of costs by which he was condemned to pay $137.20.

In the case as presented here the record shows no bill of exceptions, statement of the facts, or statement of the case, nor any other document by which we can be informed as to what action the trial court took in ascertaining the facts whereon to base the resolution complained of. The appellant relies solely on his motion and the fact that it was sworn to to establish his position that he was not notified of the decision made by this Supreme Court in the affirmation of the resolution approving the memorandum of costs. For all that appears from the record there may have been evidence introduced or documents contained in the record which showed that the notification had been duly issued and served and that the statement in the motion, although sworn to, was incorrect. We cannot infer the truth of the facts set out in the motion simply from the affidavit attached thereto. The presumption is that the district court in the making of this resolution, as well as in all other similar proceedings, acted according to law, and it is incumbent upon the appellant or anyone else controverting that presumption to show by evidence or otherwise that such is not the case.

There being nothing in the record from which we can find any material error on the part of the district court in passing the resolution complained of, the appeal herein should be disregarded and the resolution of the court below in all things affirmed.

Affirmed.

Chief Justice Hernández and Justices Wolf, del Toro and Aldrey concurred.