Pardo v. Pardo

Mr. Justice Wole

delivered the opinion of the court.

This was a divorce suit in which a complaint and cross complaint were filed and the court below dismissed them both. An appeal was taken by each of the parties. The husband completed his record by presenting a statement of the case to the court below which was duly approved and the transcript of record filed in this court. The appeal of the wife was taken on May 14, 1913, and from that time until October 31, 1913, no transcript had been filed on her behalf and then the appellee, the husband, moved to dismiss. On November 10, counsel for appellant came into court and alleged that as botli parties liad appealed from the same judgment and as the judgment roll and the statement of facts were identical in each appeal, when the statement of facts was presented by the husband, he, counsel for the wife, had thought it was unnecessary to prepare a separate transcript and he prayed the court to approve the record which accompanied his motion and affidavit. At the hearing counsel for appellant submitted another motion and affidavit in which he set up some further facts to excuse his failure to present the transcript, now stating that he had had no sufficient opportunity to have the transcript certified by the secretary of the court, but if allowed to withdraw the same he would return it to the court duly certified within 48 hours. lie also filed an affidavit setting forth that he had served a copy of the record on the appellee and that such copy was a true one. The appellee filed counter-affidavits generally opposing the granting of the motion and very elaborately showing the mistakes that existed in the statement of the case and denying that there was any notification of.a proposal to submit a statement of the facts to the court below as maintained by appellant. There was a hearing on the second motion and counsel for appellant frankly admitted all the mistakes, justly ascribing them to the pressure under which he had been laboring and throwing himself on the mercy of the court.

If we had a discretion in this matter the case was too irregularly prepared for the exercise of it. Appellant never presented a statement of the case to the court below and the time for filing the transcript in this court was fixed by this court in rule 40 as 30 days. There was no record here when appel-lee filed his motion to dismiss several months thereafter. If appellant relied on the statement of the case prepared by her opponent she should have still presented a separate transcript within 30 days from the approval of the same. Unless the parties agree to present a single record the necessity, when there are cross appeals, for submitting separate transcripts and especially separate statements of facts may be readily shown. The evidence indispensable for the purpose of one appeal may be useless for the cross appeal and vice versa. When husband and wife are each suing for divorce, as here, the possibilities are perhaps more striking. The facts of the alleged wrong-doing of the one may be entirely independent of the alleged wrong-doing of the other. While the wife might be entirely satisfied with the statement of facts prepared by the husband to support his appeal the husband might need an entirely different set of facts to defend the judgment rendered in Ms favor. He had a right to be heard to suggest amendments, changes and additions.

Even if we should permit the case to go back to the district court the secretary could only certify to the bare judgment roll. We have no power to make a statement of the case in this court except when the court below refuses or perhaps is unable to do so. Orama et al. v. Oyanguren, 19 P. R. R., 294; The Fajardo Sugar Co. v. Santiago et al., decided December 18, 1913. Likewise we think the court below is now without such power.

Section 216 of the Code of Civil Procedure provides that a statement of the case should be presented to the court within 10 days from the date of the appeal unless such time is extended by the court. We are aware of the jurisprudence of the State of California which, construing a section of their code similar to section 140 of the Code of Civil Procedure, permits an appellant to file a statement of the case after the time has expired if the failure was due to mistake, inadvertence, surprise or excusable neglect. Sprigg v. Barber, 118 Cal., 591; Baker v. Borello, 131 Cal., 615; Stonesifier v. Kilburn, 94 Cal., 33-43; Kaltschmidt v. Weber, 145 Cal., 596. However, the practice in California is quite a little different from our own. The default must be taken advantage of only witMn six months. There can be no extension of time for a statement of a case for more than 30 days without the consent of the opposite side. An appeal does not act as a supersedeas without a bond and there must be a bond for costs. Under these circumstances, in the absence of some restriction or limitation on the possibility of extension, our statute must be strictly construed. We think, besides, that the Supreme Court of California in the attempt to comply with the supposed spirit of the law violated its letter. The words of each code substantially are “and also relieve a party or his legal representatives from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect. ’ ’ The failure of a party to present a statement of the case in time is not a “judgment or order or other proceeding taken against him.1” The proceeding would evidently be something in the nature of an order, judgment or decree. The corresponding “proceeding” would -be the judgment of this court affirming the judgment below, a proceeding evidently beyond the power of the court below to relieve.

We think, moreover, that the whole spirit of section 140 shows that the proceeding was one that might aris.e in the exercise of the lower court’s ordinary jurisdiction and does not apply to proceedings to perfect an appeal. It is no hardship to require an appellant promptly to present his appeal, nor for him to realize that the failure to act speedily may jeopardize his appeal. A party has 30 days after judgment to present an appeal and may make use of his statement in a motion for a new trial and appeal from an order overruling such motion. Also the court may extend the time. This court is doing its utmost to speed the consideration of the causes before it. A great part of the delay in litigation happens between the judgment and the forwarding of the transcript. We think the judges below should not be too liberal in extensions and that counsel should get ready immediately after judgment to present their statements of the case so that the latter may be settled while the case is still fresh in the minds of the court and counsel. A large part of these suggestions have no application to counsel for appellant but are uttered arguendo against the theory that a failure to present a state-xuent of the case may be excused. Even if this case should be sent bach for corrections appellant could not present a statement of the case and her appeal would not avail her. The motion to dismiss must be granted.

Motion of appellant overruled. Motion of respondent sustained and appeal dismissed.

Chief Justice Hernández and Justice Aldrey concurred.

Mr. Justice del Toro signed stating that he concurred in the decision, but not in all its grounds.

Mr. Justice MacLeary took no part in this decision.