concurring.
Some time ago, in the case of Rivera v. Aybar, 32 P.R.R. 504, I dissented from the opinion of the court granting a change of venue from a municipal court to another, and reference may be had to that case.
In the instant case, however, even supposing that such a change of venue lies, I maintain that the defendant did not put herself in a position to obtain it.
*140Section 82 of tlie Code of Civil Procedure provides:
“If the district in which the action is commenced is not the ■proper district for the trial thereof, the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and answers or demurs, files an affidavit of merits, and demands, in writing, that the trial be had in the proper district.”
In the instant case, Ana Maria Manescau, defendant in a suit filed in the Municipal Court of Ponce, appeared to ask that certain features of the complaint filed by Carmen Bamirez be stricken and that the case be transferred to the municipal district where the defendant resided. Ana Maria Manescau did not answer or demur to the complaint and the motion to strike was her first, appearance in the case. As appellant in this court, Ana Maria Manescau maintains that she had a right to a change of venue before answer or demurrer on filing the demand, the affidavit of merits and the motion to strike.
Taking section 82 in its literal significance, there is no question in my mind that the only moment at which a defendant in a transitory action or one not purely local may move for a change of venue is at the time he answers or demurs. As it seems to me, this is the plain meaning of the Words of the statute. Without regard, for the moment, of the' history and interpretation put upon a similar statute in California, Washington, and elsewhere, at first blush we should say that such is the interpretation that should be put upon the statute. This contention is strengthened by the translation made of the said section in Spanish, which is as follows:
“Si el distrito en que se establece la demanda no es el en que deba seguirse el juicio, podrá, sin embargo, continuarse en aquél, a menos que el demandado, al comparecer a contestar o a formular excepciones, presente una declaración jurada y fundada y pida por escrito que el juicio se celebre en el distrito correspondiente.”
This was the construction that this court put upon said section in Torres et al. v. Torres et al., 16 P.R.R. 334; Busó *141v. Borinquen Sugar Co., 19 P.R.R. 337; Ortiz v. Gómez, 21 P.R.R. 480; and Aponte v. Atlas Commercial Co. et al., 27 P.R.R. 228. That is also the tendency of Gómez v. Board of Examiners, etc., 40 P.R.R. 635.
It is proposed, however, to reverse the jurisprudence established by this court by reason of the opinion rendered in the case of Ramos v. Lloveras, 36 P.R.R. 616. Certainly, as was said in Ortiz v. Gómez, supra, when a defendant complies with section 82 of the Code of Civil Procedure the obtaining of a change of venue is not discretional in the court but is a right. Nevertheless, under numerous decisions, while a right exists it is also a privilege that may be abandoned. Although some of the decisions and the ease of Ramos v. Lloverás indicate that such a right should be liberally construed to favor the purpose of the statute, this question of liberality, considering the whole section, is not to be understood necessarily in favor of either the plaintiff or the defendant.
The object of the statute is obviously twofold. As I have said, its purpose is to give the defendant the right to a change of venue under certain circumstances, but its plain meaning is also to prevent unnecessary and burdensome delays.
Prom the somewhat superficial examination that I have made, of the historical precedents, there was a time when it was difficult to sue anybody in an action unless the suit was brought in the place where the facts arose and sometimes then it was difficult to obtain jurisdiction of the defendant if he did not live there. It was a step in advance to permit the defendant in transitory actions to be sued wherever found. Litigation was thus furthered. Then came the remedial provisions of the codes of various states, of which section 82, supra, is a counterpart.
It is to be noticed that when either of the parties moves to change the place of trial for the convenience of the witnesses, the law is today that such a motion can not be made *142until answer filed, inasmuch, as the court can not reach any definite conclusion about the convenience of the witnesses before it knows what is the issue between the parties. Similarly, I maintain that the court can not know that the motion for a change of venue is a genuine one until after answer or demurrer filed on the faith of a party, when through his affidavit of merits or otherwise the court may reach the conclusion that the motion is not made for the purpose of delay or to hinder or thwart the plaintiff. Section 82 of the Code of Civil Procedure was not framed merely to allow a defendant to insist upon a change of the place of trial. It was also enacted to prevent undue delays.
Recurring again to the literal meaning* of section 82, we said in the Buso case:
“As may be seen, according to the Spanish text of the section above transcribed, it emphatically requires that the motion for a change of venue shall be made at the time of appearing to answer or demur and according to the English text, at the time that the moving party appears and answers or demurs to the complaint. . . .
“The appellant contends that the joining of a demurrer or an answer to a motion for a change of venue is not an indispensable requisite, but that the filing of the motion for a change of venue at the time of making the first appearance is sufficient, as was done in this case. This defense is inadmissible because it is contrary to the clear and express provisions of section 82 of the Code of Civil Procedure, from whose literal text we can not deviate, as will be seen from section 13 of the Civil Code:
“ ‘When a law is clear and free from all ambiguity, the letter of the same shall not be disregarded under the pretext of fulfilling the spirit thereof.’ ”
Examining the jurisprudence of the State of California, I do not find a single case that has permitted a defendant to obtain a change of venue until he has appeared and answered or demurred. The principal case on this point is Cook v. Pendergast, 61 Cal. 72. In the body of that opinion the court says:
*143“Section 396 of the Code of Civil Procedure provides, in effect, that a defendant may be held to have waived Ms right to a change of the place of trial on the ground that the action has not been commenced in the proper county, unless at the time he first appears •either by answer or demurrer, he files an affidavit of merits, and demands in writing a transfer to the proper county. . . .
“Section 396 has changed the rule, if it ever was a rule, which required the motion, or notice of the motion, in. all cases to precede •or accompany the answer or demurrer. The prohibition of a motion on the ground that ‘the county designated in the complaint is not the proper county,' except where the affidavit is filed and the written demand made when the answer or demurrer is filed, is itself .a permission that a motion on any other statutory ground may be made by defendant, without the affidavit and demand, within a reasonable time after his appearance. Else why is the prerequisite made applicable to motions made upon the ground particularly mentioned. (Expressio unius, etc.) It has always been held that such motions, being dilatory, must be prosecuted with diligence.”
It is perfectly true that in that case there was no attempt to obtain a change of venue before answer or demurrer. The ease turned on a different point. Nevertheless the dictum of the court in the body of the opinion is that the demand for a change of venue must be made upon answering or demurring.
The case is sometimes cited by commentators to the point that the motion for a change of venue must be made at or before the time for answering. These words at the end of the opinion, it seems to me, were a mere inadvertence on the part of the court. What the court decided in that paragraph of the. opinion was that the plaintiff could not demand a retention of the case on the ground of the convenience of the witnesses before the defendant had answered, and the word “before” in the said paragraph had nothing to do with the matter under decision.
In Wood, Curtis and Co. v. Herman Mining Co., 139 Cal. 713, it was distinctly held that the defendant must appear by answer or demurrer and that if he does either he is entitled to be heard on his motion. The court there suggests that *144the defendant might also file a motion to strike along with his answer or demurrer. Again, the exact issue before us' was not involved.
Wadleigh v. Phelps, 147 Cal. 542, decided that a defendant who made his motion for a change of venue after he-had answered or demurred, had lost his privilege. The court, however, said: ‘ ‘ Such demand and application must be made at the time of his first appearance, either by answer or demurrer. ’ ’
In Nicholl v. Nicholl, 66 Cal. 36, the court said:
“The affidavit of merits and demand that the trial be had ha the proper county, which were filed before the defendant answered or demurred, were wholly inconsequential. To be of any avail, such affidavit and demand must be filed when the defendant appears, and answers, or demurs.”
The opinion Was not rendered by an individual judge in the name of the court, but by the whole court. This, however, does not affect the force of the ruling. Apparently the defendant there did two things. He moved for a change of venue before he answered or demurred, but he also after-wards demurred and asked for a change of venue. The court below granted the change, and on appeal it was decided that the original motion was unavailing, but that the later motion should prevail.
In Palmer v. Barclay, 92 Cal. 199, the question decided was whether an insufficient affidavit of merits could be-amended under section 473 of the Code of Civil Procedure' of California which corresponds to section 140 of our Code. The court decided that such an amendment might be made. In the course of the opinion the court, first quoting the section that corresponds to section 82 of our Code of Civil Procedure, said:
“The appellant contends that the court erred in granting the motion, for the reasons that the first affidavit was insufficient, and the second could not be considered, because, as said in Nicholl v. *145Nicholl, 66 Cal. 37: 'To be of any avail, sueb affidavit and demand must be filed when the defendant appears and answers or demurs.’ ”
In other words, the court cites Nicholl v. Nicholl as the accepted jurisprudence.
This brings me to another point. Where a matter of practice has arisen, the Bar and the Bench of any state know it. Frequently the practice is known to the whole profession, hut no trace of such practice appears in the jurisprudence of the state. Partially for this reason it is so difficult for a lawyer of one state to practice law in another, even if he searches all the jurisprudence. Local counsel are almost invariably necessary.
The case of Nicholl, supra, has been accepted by all the commentators on the Code that I have been able to find, e.g,, Bancroft and California Jurisprudence. So true is this that the words “and appears” have been stricken from the California Code of Civil Procedure as superfluous. 2 Bancroft, Code Practice and Remedies, page 1461, note 14; 25 Cal. Jur, 896, 897, note 18. ,
The jurisprudence of Montana apparently bears out the conclusions at which I have arrived. Danielson v. Danielson, 203 Pac. 506; O’Hanion v. Great Northern Ry. Co., 245 Pac. 518.
The State of Washington appears to hold in favor of the contention of the appellant. If, however, one examines the reason of the jurisprudence of that state, it is far from satisfactory. The first ease that I have found is State ex rel. Cummings v. Superior Court, 32 Pac. 457. Syllabus No. 2 says:
“Where the defendant, at the time of demanding a change of venue, files an affidavit of merits, and a demand for a bill of particulars, and, on such bill of particulars being furnished him, files his answer, the statute is sufficiently complied with.”
What the case essentially decides is that a defendant may appear and ask for a bill of particulars, and if subsequently *146lie files his answer, this is a sufficient compliance with the statute. The court says:
"It is possible that, even after the filing of the demand and of the affidavit of merits, the court would be justified in holding the cause until the issues had been made up; but after such demand had been made, and the affidavit of merits filed, the right to try the case was taken from the court, and, at most, it could only hold it until it had been settled by the pleadings that there was an issue for trial.”
State v. Superior Court, 168 Pac. 164, quotes from Cummings v. Superior Court, supra, and treats the earlier case as .if it had definitely decided that a defendant was entitled to a change of venue on filing a notice of appearance. The court reasons that there are a number of motions to be made preliminarily to the filing of an answer or demurrer, and hence the defendant should not he deprived of his right to make anyone of the said motions. But no satisfactory reason is given, to my way of thinking, for abandoning the plain language of the statute.
Other cases from the State of Washington are: State ex rel. Owen v. Superior Court, 187 Pac. 708 and State ex rel. Redlinger v. Superior Court, 193 Pac. 676.
In other words, the whole jurisprudence of Washington was built up, as I see it, from a mistaken interpretation of the first case.
Indeed, I might agree with the jurisprudence of the said earlier case to the effect that a defendant may appear in the court in which he is sued and ask for any preliminary action that he requires to frame his answer or his demurrer, but he is only entitled under the statute to a change of venue when he answers or demurs. This would mean that the conjunctive contained in the words “when he appears and answers or demurs ’ ’ could be interpreted as establishing the fact that the moment for answering or demurring could, for the purposes of preparing for either step, be deferred, but *147that the right or privilege to a change of venue does not arise until the answer or the demurrer is actually filed.
I am authorizing to state that, with the exception of the first paragraph, Mr. Justice Aldrey agrees with this opinion.