delivered the opinion of the Court.
Francisco Angleró obtained in the District Court of San Juan a judgment by default against the Municipality of Fajardo. This judgment on motion was set aside conditionally. The condition was that the defendant pay to the plaintiff the costs and attorney’s fees incurred in the proceeding. Subsequently the plaintiff filed a memorandum of attorney’s fees amounting to one-hundred dollars. The District Court of San Juan allowed fifty dollars. From this order the defendant appealed and the sole ground of error was that the memorandum was filed too late. ■
This is not a proceeding under section 339 of the Code of Civil Procedure. The payment of attorney’s fees was a condition imposed upon the defendant before it would have a right to proceed in the case. Arce v. American Railroad Co., decided June 16, 1932, ante p. 635. No definite time then is fixed by the law within which the memorandum must be filed. Furthermore, the appellee made a calculation wherein he attempted to show that the memorandum was filed within the 10 days allowed by law in the case of an ordinary memorandum of costs, and we do not find he was mistaken.
In reality this case is subject to dismissal because the appellant has failed to file an index; but.as the record is short, we have preferred to consider the case on its merits.
The order appealed from will be affirmed.