delivered the opinion of the court.
This is an appeal from a judgment for defendant in an
The four errors assigned by the appellant are actually reduced to two. In the first three assignments error is charged for the failure to hold that the evidence submitted was sufficient to sustain the complaint, and in the fourth it is charged that the trial court was moved by passion, prejudice, and bias.
The nature of the errors assigned requires a summary of the evidence.
The witnesses for the plaintiff were: her mother Dolores Ortiz, her uncle Guillermo Ortiz, and Manuel Borrero, Mar-colina Heredia, and Juan Vázquez. Lorenzo Dragoni testified for the defendant.
Dolores Ortiz testified that she is unmarried and that the defendant Silvestre Dragoni is also unmarried; that she knew defendant in 1934 in the ward of Maragiiez, Ponce, while working in the home of doña María Dragoni, an aunt of Silvestre; that the defendant was also living in Mara-giiez, some distance from the home of doña María; that defendant made love to her and proposed marriage to her, and that one night, while the witness was in her room with the door left open defendant went in and had sexual intercourse with her; that this happened four or six times but that on the witness becoming pregnant defendant ceased visiting her; that three months before childbirth she moved to the home of her sister Alejandrina Ortiz and during those three months the defendant did not call on her, the child having been born
Guillermo Ortiz testified that he is a brother of Dolores and knows the defendant; that the latter on two occasions told him that he had a love affair with his sister and that he meant to marry her; that eight days after the birth of the plaintiff, the defendant came to see her and left $2 for her. In disagreement with the statements of Dolores Ortiz and Marcolina Heredia, this witness asserted that on that occasion, that is, when appellee came to see his daughter eight days after her birth, his sister Dolores was not at home but in the ward of Maragüez; that the only people present there at the time were Alejandrina Ortiz, a sister of Dolores and of the witness, the child, another woman (who we suppose was Marcolina Heredia), and the witness; that after-wards the defendant discontinued his visits; that on a certain occasion, while the witness was in the house of Francisco Taboada, Lorenzo Dragoni, an uncle of defendant, in front of Tomás Monllor, called a sister-in-law of the witness and handed her $10 for the support of the child Ana Maria Ortiz.
Manuel Borrero testified that he is plaintiff’s godfather; that once he met the defendant and the witness addressed him as “compadre” and told him that it was his duty to do something for the girl and for the mother, and the defendant retorted that he had offered $100 but that she had refused and that he would not given her more.
Marcolina Heredia testified that about eight days after the plaintiff was born, the witness was visiting Dolores Ortiz and the defendant arrived there and wanted to see his daughter Ana Maria Ortiz and, entering the room, took and fondled her, calling her “my daughter,” and said, “My visit
This witness testified with absolute certainty that her visit took place on April 6, 1937, although she took the stand on January 30, 1940, and when asked how she could remember with so much precision 'the date of the visit, she said that because she knew it, that she had not made any note of it; that she had it in her mind.
Juan Vázquez only stated that he knows Dolores Ortiz and that she is unmarried.
The evidence for the plaintiff consisted of the above testimony and of the birth certificate of the child.
The evidence for the defendant, as we have already stated, consisted of the testimony of Lorenzo Dragoni who denied having sent any money to the plaintiff.
Is the evidence above recited sufficient to sustain a judgment of filiation based on either of the two grounds alleged?'
The only act tending to show the status of the plaintiff as a natural daughter ivas the call made by the defendant eight days after her birth, when he had fondled her and left her $2 for her support, although he never thereafter took any notice of the girl or of the mother. It is true that Manuel Borrero testified that on one occasion he met the defendant and addressed him as “compadre,” and advised bim-to do something for the plaintiff and her mother, and that the defendant had answered that he had offered $100 to Dolores Ortiz, that the latter had refused, and that he would give her no more. Apart from the fact that from such testimony it can not be determined whether the $100 offer was made before the birth of the child, and if so made the offer could not be considered as an act of acknowledgement the existence of said offer is extremely questionable, for, if on the occasion above referred to, the defendant, eight days after the birth of the child, handed to the mother $2 for support which
Such a weak evidence as that adduced by the plaintiff fails to show, in our judgment, that the latter had uninterruptedly enjoyed the status of natural daughter of the defendant, as required 1031 law, in order to compel the father to acknowledge her. Construing the term “uninterruptedly” (continuo) which appears in subdivision 2 of section 125 already cited, this court, in Colón v. Heirs of Tristani, 44 P.R.R. 163, 173, has said:
. . . . The adjective ‘continuo/ according to Scaevola, has several meanings and in the case of section 135 it may not be taken to mean ‘uninterrupted,’ but as ‘a thing that follows another,’ and it is to be interpreted with the word ‘constant,’ which means perseverance or repetition of acts. In our opinion, the word ‘continuo’ (uninterrupted) should be taken to mean a series of acts, a set of facts carried out by the person from whom the acknowledgment is claimed, sufficient, if considered as a whole, to constitute the uninterrupted condition of a natural child. Once these series of acts have been carried out for a reasonable length of time, the father should not be allowed to revoke with his subsequent acts the acknowledgment priorly made by him.”
Nor is there any evidence tending to show that the defendant and Dolores Ortiz lived in concubinage at any time. It only appears from the testimony of Dolores Ortiz that she had sexual intercourse with the defendant four or six times in the room occupied by her in the home of Maria Dragoni, where she worked as a servant, and that subsequent to those acts the defendant only called on her again on the occasion of the visit to the child eight days after the latter was born. Under such circumstances, there is no basis to justify the conclusion that they ever lived in concubinage.
It does not appear from the record that the trial judge acted in this case under the influence of passion, prejudice, or partiality. It is the duty of every attorney to raise in the defense of his client any question that might be pertinent
As none of the errors assigned exists, the judgment appealed from should be affirmed.