delivered the opinion of the Court.
The plaintiffs have appealed from an order rendered by the District Court of San Juan which order “leaves without effect or efficacy whatever the judgment entered on November 22, 1935, and reinstating the case to the same state it was before the trial, but taxing the defendant with the costs of this incident, without including attorneys’ fees.”
The complaint is to recover on a promissory note signed in favor of Rafael G-uillermety, the predecessor in interest of the plaintiffs, by the defendant Luis E. Capó. On October 22, 1935 the clerk of the court notified the parties that the trial had been set for November 4, 1935, and the defendant failing to appear on said date the plaintiffs proceeded with the presentation of their evidence. On November 22, 1935 the court rendered judgment sustaining the complaint and taxing the defendant with the costs, including therein attorney’s fees.
. The attorney for the defendant filed a motion seeking to open the judgment in favor of the plaintiffs, said motion being based on the following allegations:
“1. ........
“2. That this attorney for the defendant did not have knowledge of said setting nor that the notice of the same had been sent to him by the cierk of this court three days ago, which was much later after the trial had taken place, due to the fact that when the messenger of this Court, who has charge of this official services delivered said notice in my office, I was absent from this Island, on professional matters, and the notice was delivered in a closed envelope to a sister of this attorney, who left it on the desk but failed to hand *364over or inform me the receipt of said envelope, as she was not my employee, and was not aware of this matters, and as this attorney since the first days of the month of October has been compelled frequently to be absent from his office, in the town of Comerio on legal matters, as attorney for the Puerto Eieo Production Credit Association, he could hardly come to this court, and was in complete ignorance of the settings made by the same.
“3. That if this attorney had had knowledge of said setting, he would not have failed to appear at the hearing of this case, as he thinks that the defendant has a sufficient and meritorious defense in the same, and because as an attorney he has always tried to comply faithfully with his duties towards his clients and the Court.
“4. That this attorney was surprised to learn that this case had been set and tried, three days ago as he has' alleged, when he was searching in his desk for other papers and found the envelope containing said notice, and he came immediately to this court in order to verify whether the trial had taken place, which was affirmed by the celebration of the trial on said day and rendition of judgment against the defendant.
“5. That in these circumstances the defendant having a good defense against the pretensions of the plaintiffs, in accordance with the allegations of his answer, would be fatal for him, who since the first moment that this action was brought has had the necessity and interest to defend from said claim.
“6. That in this ease, as we have alleged, due to the failure of the defendant to appear for trial, there has been inadvertence and surprise, because the notice sent by the clerk to this attorney did not reach him, and besides, there is an excusable negligence for the reasons stated that frequently he was absent from his office and from this city, in the interior of the Island, on professional matters.”
The plaintiffs objected in writing to the opening of the judgment which had been rendered in their favor, but in spite thereof, the court, as we have said, so decided. The plaintiffs felt aggrieved and took an appeal. In their brief they assigned two errors, to wit:
“1. The District Court of San Juan erred manifestly in leaving without any effect or efficacy the judgment rendered by it on November 22, 1935.
“2. Said court also erred in taxing the defendant and appellee with the costs of the incident without including attorneys ’ fees. ’'
*365Section 140 of the Code of Civil Procedure, among other tilings, provides:
“. . . The court may likewise, in its discretion, after notice to the adverse party, allow upon such terms as may be just, an amendment to any pleading or proceeding in any other particulars; and may, upon like terms, allow an answer to be made after the time limited by this Code, 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; and whenever, for any reason satisfactory to the court or the judge thereof, the party aggrieved has failed to apply for the relief sought during the term at which such judgment, order, or proceeding complained of was taken, the court, or the judge thereof, in vacation may grant the relief upon application made within a reasonable time, not exceeding six months after the adjournment of the term. . .”
Tlie words used are peculiarly strong in favor of a defaulting party: “Mistake,” “inadvertence,” “surprise,” or “excusable neglect.”
“Inadvertence” was the best characterization of the nature of the default in this appeal and it is put on the same basis as “mistake” or “surprise,” grounds in many cases for the intervention of the court of equity. A stricter interpretation of default existed at common law but here the legislature has spoken. See, especially, the case of Gutiérrez et al. v. Foix, 23 P.R.R. 68.
The jurisprudence of the courts is clear to the effect that a judgment even after trial, as here, but practically by default, may be opened in the discretion of the court.
The appellants cite the case of Cancela v. Pellot, 34 P.R.R. 638. In that case, wherein we moved with considerable hesitation, the court below had once before refused to open the default. The appellee made out no merits at all for opening the default, but quite the contrary. The abuse of discretion there was clear.
The lower court said that the plaintiffs with good reasoning opposed the opening of the default, but that after examining the facts the court thought that the interests of justice *366required that the case should be put where it had been before. It is evident, too, that the defendant appellee moved swiftly when advised of the judgment. We find no sufficient reason for overruling the discretion of the court.
The appellants also complain of the failure of the court to include, in the costs, attorneys fees. This is again a matter within the sound discretion of the court, supposing the court had the right to impose attorneys fees at this juncture.
The order appealed from should be affirmed.