Stella de Ortiz v. District Court of Humacao

Mr. Justice Texidor delivered the opinion of the Court. In this case application has been made to ns for a writ of certiorari directed to the .District Conrt of Hnmacao, and the petitioner, Julia Stella de Ortiz, essentially alleges the following grounds: A suit for temporary maintenance (alimentos provisio-nales) was brought in the District Court of Hnmacao against Julia Stella de Ortiz by Monserrate Carrasquillo, as mother with patria potestas over Nilda Monserrate and Francisco Juan Ortiz Carrasquillo, minors. A monthly allowance of $200 was claimed. It is alleged that the judge made an order which is transcribed, wherein he directed the first appearance of the parties after the defendant had been served with a copy of the complaint; that the court, without the defendant being so summoned or served, tried the case, without jurisdiction, and gave judgment against the petitioner herein, having only before it an affidavit of service of the summons, which is copied, wherein it is not stated that the defendant was served personally or that a copy of the complaint had been delivered to her; and that although the defendant also has a remedy by appeal, such remedy would not be adequate nor efficient, as an appeal would not stay the execution of the judgment. The writ was issued and the record of the proceedings below was sent up to this court. The' plaintiff intervened in the proceeding herein and opposed the petition. She set up the following: She denies that Julia Stella de Ortiz has not been served with notice of the proceedings sought to be reviewed; she alleges that the formal summons appears from the original affidavit of service and from the supplemental affidavit made a part of the record of said proceedings; she denies all other aver-ments of the petition and she alleges that certiorari is not [634] the proper remedy in this case because the petitioner has-another adequate and speedy remedy at law, the petition is. insufficient, and it is sought to secure a stay of the proceeding-in an indirect way. A hearing was had in this court. The following are the most interesting particulars appearing from the record: (a) Order of the court dated October 20, 1930. (I) "Having considered the verified complaint filed by the plaintiff in the above entitled cause, in which she claims, as mother with patria potestas over her minor children, Hilda Monserrate and Francisco Juan Ortiz Carrasquillo, an allowance for the temporary-maintenance of the said minors amounting to $2,400 annually to be paid by the defendant as the grandmother of the said minors in monthly instalments in advance at the rate of $200 during the stay of said minors in Humacao and until they become of age, and that the said allowance be paid in cash to be deposited each month in advance in the office of the clerk of this court, where it shall be kept at the disposal of the petitioner for the benefit of her aforesaid children; and having considered also the prayer included in the said complaint' for the setting of a day for a preliminary appearance of the parties hereto, the court, pursuant to the provisions of section 84 of the Special Legal Proceedings Act and of sections 4 and 5 of the Unlawful Detainer Act, hereby orders the parties hereto to appear for a preliminary hearing before this court on November 8, 1930, at 9 a. m., and file allegations in support of their respective claims, and a copy of the complaint filed by the plaintiff herein shall. be served on the defendant, who shall be cautioned that upon her-failure to appear, either in person or by her lawful representative, on the day and at the hour above mentioned, the said minors shall be granted the temporary maintenance sought by them, without further summons or hearing, in accordance with the petition herein. "The clerk shall issue the proper writ in compliance with this, order. ” (b) Affidavit of service: (II) "I, Luis Ríos Algarin, declare on oath: That my name is as above shown, that I am over 21 years of age and a resident of San Juan; that I am not a party to or have any interest in the-action referred to on the back of this affidavit of service; that at. [635] 10 o’clock a. m. on October 20, 1930, I received the original summons shown on the back of this affidavit and that at 12:30 o’clock p. m. on the same day I served the summons on Julio Ortiz Stella, who lives with the defendant Julia Stella de. Ortiz, in Humacao, Puerto Rico, and was on that day and at that hour at her residence, and delivered to the said Ortiz Stella a true and faithful copy of the said summons, which copy I left with him to be delivered to the defendant, whom I was not allowed to see or serve with the said summons, as the said Ortiz Stella repeatedly assured me that said defendant was sick in bed and could not receive me, and he promised me that he would deliver to her the said copy which I had just delivered to him at that moment. “In witness whereof, I subscribe the present affidavit at San Juan, Puerto Rico, this 1st day of November, 1930.” (c) Additional or supplemental affidavit of service: (III) “I, Luis Ríos Algarin, declare on oath: That my name is as above shown, that I am over 21 years of age and a resident of San Juan; that I am not a party to or have any interest in the above entitled cause; that at 10 o’clock a. m. on October 20, 1930, I received the original summons issued by this court for a preliminary hearing in the said cause and summoned the parties to appear at such preliminary hearing; and that on the same day, October 20, 1930, at 12:30 o’clock p. m., I notified the said summons to Julio Ortiz Stella, who is of age and resides and was on that day and at that hour in the home of the defendant Julia Stella de Ortiz, in Humacao, Puerto Rico, as the person in charge or the agent of the said defendant, having delivered to said Ortiz Stella a true and faithful copy of the said summons and of the complaint filed in the above entitled cause, which copies I left with him then and there to be delivered to the said defendant, whom I was not allowed to see or personally serve with the said summons and copy of the said complaint, as the said Ortiz Stella, who is a son of the defendant, repeatedly assured me that she was sick in bed and could not receive me, and promised me that he would deliver to her the said copies which I had just deliver to him for her; that it was actually impossible for me to see personally the said defendant owing to her sickness and because I was not allowed to do so by her said son and representative at that moment, Julio Ortiz Stella; that the foregoing is the truth and nothing but the truth as regards the facts herein, and that if they were not so set forth in the original affidavit of service filed by me in the present case it was due to an inadvertent or [636] involuntary omission on my part, owing to tbe baste with, which I prepared the said affidavit; and in order to correct that omission and to make the facts conform to the truth I sign this amended affidavit at Humaeao, P. R.,, on November 24, 1930.” The question has been discussed in this case whether the summons must be served personally, and whether the service can be made on a person other than the defendant. Title VII of the Special Legal Proceedings Act, approved March 9, 1905, establishes, what might be called the procedure to be followed in claims for temporary maintenance. Section 84 of the said act is as follows: “Sec. 84. All claims for temporary maintenance shall be governed by the procedure provided for actions of unlawful detainer. An appeal lies against a judgment rendered in this class of actions. But such appeals shall not be an obstacle to the execution of the judgment. ’ ’ On the same date, or March 9, 1905, there was enacted the Unlawful Detainer Act, in which we find the following sections: “Sec. .4. The action shall be commenced by filing a complaint prepared in accordance with that prescribed in the Code of Civil Procedure for an ordinary action, and, after the filing thereof, the plaintiff and defendant shall be ordered to appear for a hearing which must be held within ten days after the commencement of the action. “Sec. 5. If the defendant can not be found at the place of trial’, or if he resides elsewhere, the summons shall be served upon the person who, in his name, is in any way in charge of the property at said place. When summoning the defendant he shall be cautioned that in case of his failure to appear, either in person or by lawful agent, judgment of unlawful detainer will be taken against him without further summons or hearing.” This procedure is applicable to an action for temporary maintenance, which perhaps involves greater urgency than an action of unlawful detainer and better justifies the shortening of terms and the omission of unessential proceedings. [637] It is /unnecessary to resort to the precepts of the old Spanish Law of Civil Procedure, since the action in question is well defined in onr present legislation. The process, as served, was correct; and the court, by virtue thereof, acquired jurisdiction of the case. From the original affidavit of service of the summons it did not appear that the defendant had been served with a copy of the complaint. But from the record of the proceedings under review there appears to have been filed on November 24, 1930, an amended affidavit of service, in which it is stated that Julio Ortiz Stella, of age, who was at the home of the defendant Julia Stella de Ortiz, “as the person in charge or the agent of the said defendant” and who assured the process server that thé defendant was sick in bed and could not receive him, was served with copies of the summons and of the complaint which the said Julio promised to deliver to the defendant. This amended affidavit was subscribed by Luis Bios Algarin, who served the summons. Application may be made in the case at bar of the general doctrine laid down in Puigdollers v. Monroig, 14 P.R.R. 756, 757, in which it was held that an action for alimony should be governed in respect to the filing of the complaint and the introduction of evidence by the rules established for the action of unlawful detainer. The writ issued must be discharged.