Millín v. Aldrey

Me. Justice del Tobo delivered the opinion of the court. This is an application for a writ of certiorari made by Victor Millin Taforo against the Judge of the First Section of the District Court of San Juan, for the purpose of correcting certain errors of procedure which the petitioner alleges to have been committed in the civil action instituted by Victor Millin Taforo against 0. K. Wilson, for the recovery of a sum of money. These civil proceedings were had in the municipal court of Bayamón, judgment having been rendered in favor of the plaintiff on February 12, 1903. On March 2 of the same year the execution of the judgment was requested. On October 16, 1903, an entry of the attachment levied on certain real estate, in connection with the execution, was made in the registry of property. And on December 10 of the same year the execution was stayed by order of the District Court of San Juan made in proceedings in intervention of ownership with relation to the estate attached, instituted by J. Gr. Wimmer. This order to stay the execution was vacated by the District Court of San Juan on September 1, 1909, whereupon the plaintiff prayed the municipal court to order the continuation of the execution, which prayer the court granted. The defendant then filed a motion in the municipal court alleging that the execution of the judgment did not lie because it had already been “executed by operation of law, in accordance with the provisions of sections 239 and 243 of the Code of Civil Procedure in force. ’ ’ The court decided the case against the defendant, and the latter appealed to the district court which, qn March 16, 1910, annulled the order appealed from, on the ground that the legal term within which the judgment could have been executed, had expired. From this decision of the district court an ordinary appeal to this Supreme Court did not lie, an action from a municipal [375] court being involved, the amount of which was less than $300 (subdivision 2 of section 295 of the Code of Civil Procedure, as amended by the Act of March 9, 1905), and this extraordinary remedy of certiorari was resorted to. (See the ease of the American Railroad Co. of P.R. v. The Municipal Court of Ponce, decided April 4, 1910.) The petitioner alleges that the appeal was not perfected •within the time granted by the law and that, therefore, the district court acted without jurisdiction. The record shows that the decision appealed from was-rendered on November 16, 1909, that the appeal was taken the following day, and that the documents were transmitted to the district court by the secretary of the municipal court within the term of 20 days fixed by the law, but were not entered on the books of the district court until December 13, 1909. The plaintiff having moved'for the dismissial of the appeal, the defendant alleged under oath that the reason he had not appeared before was due to the fact that when the appeal was filed the municipal judge had informed him that he would not allow it as his decision was not appealable, and about a week later the said municipal judge informed him that he would forward the documents to the district court and that he then thought that the 20 days, in which the secretary had to forward the documents, were to be counted from the latter date. Both parties having been heard, the district court decided that the appeal should not be dismissed, and rendered the final judgment to which reference has been made. Upon examining the facts and the law applicable thereto, the conclusion is reached that the district judge did not commit the error, which he is alleged to have committed, and had jurisdiction of this case. The appeal was taken in due time and the documents were also forwarded to the district court in time; and with respect to the failure of the appellant, in delaying for a few days, the [376] entry thereof in the books of the district court, the judge below, exercising his discretion, considered the excuse offered by the appellant to be sufficient, and we do not see that he took undue advantage of his discretional power in so doing. The petitioner alleges, furthermore, that sections 239 and 243 of the Code of Civil Procedure have been erroneously applied by the district court. Said sections, which have been in force in this Island since July 1, 1904 — that is to say, more than five years prior to October 6, 1909, when the'writ of execution of the judgment was applied for — read as follows "Section 239. — The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement.” "Section 243. — In all cases other than for the recovery of money, the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, or by judgment for that purpose, founded upon supplemental proceedings. ’ ’ Construing provisions of law essentially similar to the foregoing, the Supreme Court of California, in the case of Buell v. Buell, 92 Cal., 397, established the following doctrine: ‘ ‘ Section 681 of the Code of Civil Procedure provides: ‘ The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement.’ And it has been held that when the judgment is for the recovery of money, execution can only be issued thereon within five years after its entry. "It is claimed by appellant that the time during which execution was stayed should be excluded from the computation of the five years. But this claim cannot be sustained, the contrary rule having been expressly declared by this court. (Solomon v. Maguire, 29 Cal., 237; Cortez v. Superior Court, 86 Cal., 278; 21 Am. St. Rep., 37.) In the last-named case the court said: ‘The judgment, being one "for the recovery of money,” * * * could not be enforced by execution after the lapse of five years from the entry thereof. * * The order staying proceedings did not operate to suspend the running of the statute. (Solomon v. Maguire, 29 Cal., 237; Dorland v. Hanson, 81 Cal, 202; 15 Am. St. Rep., 44.) The order under review [377] was in excess of the jurisdiction of the court. The court had no power to enforce the same after the lapse of five years. ’ “It is true that in that case the order was only a stay order, but we see no difference, in legal effect, between such an order and a writ of .injunction commanding the same thing. ’ ’ And this doctrine appears so much, clearer when it is considered that in order to change it the Legislature of California was compelled to amend the law. Since July 1, 1901, section 681 of the Code of Procedure of said State reads as follows: “The party in whose favor judgment is given may, at any time within five years after the entry thereof, have a writ of execution issued for its enforcement. If, after the entry of the judgment, the issuing of execution thereon is stayed or enjoined by any judgment or order of court, or by operation of law, the time during which it is so stayed or enjoined must be excluded from the computation of the five years within which the execution may issue.” Therefore, the district court did not commit the error alleged, but correctly construed the law applying the jurisprudence clearly established. It appears to us proper to call attention in this case to the fact, that although the petitioner alleges that he could not apply for the execution of the judgment while it was suspended by order of the court, he says nothing with reference to the steps he took to obtain the termination of the action of intervention instituted in the year 1903 and terminated by a judgment of nonsuit six years later. The parties must be diligent in the assertion of their rights, and if they are not, they must suffer the consequences of their own conduct. For the reasons stated, the application for a writ of cer-tiorari should be denied, and the record received returned to the district court for proper action. Application Denied. Chief Justice Hernández and Justices MacLeary and Wolf concurred. Mr. Justice Figureras did not take part in the decision of this case.