Figueroa de Arroyo v. Saldaña Crosas Realty Corp.

Mr. Justice Córdova Dávila delivered the opinion of the Court. On March 31, 1932, and at the request of the plaintiffs, the clerk of the District Court of San Juan entered the default of the defendants, Saldaña Crosas Realty Corporation and G-arage Casino, Ltd. On October 5 of the same year, the lower court at the defendant’s request issued an order opening the default entered against Garage Casino, Ltd., and authorizing Saldaña Crosas Realty Corporation to-file within ten days an amended motion requesting the setting aside of the default entered against the latter defendant. The plaintiffs appealed from this order and the defendants now ask that the appeal be dismissed because the said order is not appealable. In the case of Dávila et al. v. Barreiro, 20 P.R.R. 43, this Court held that an order setting aside a default is not appeal-able. In Hernáiz Targa & Co. v. Vivas, 20 P.R.R. 99, it was held that an order denying a request to set aside a judgment by default is in the nature of a special order made after judg [72] ment and is appealable. It was decided in tbe case of Freiría & Co. v. R. Félix Hnos. & Co., 20 P.R.R. 148, that an order vacating a judgment by default is appealable. Tbe case of Dávila et al. v. Barreiro, supra, dealt with a simplé entry of default. Appeal was taken from tbe order setting aside said entry and this Court properly held that tbe aforesaid order was not appealable. In tbe other two cases cited there were involved orders issued after judgment. In tbe case of Savage v. Smith, 154 Cal. 325, tbe Supreme- Court of California declared: “. . . Certainly it is not true that an order setting aside a default in an action where no judgment has been entered upon the default, is the subject of a separate appeal. It is in no sense an order after judgment and it is not one of the interlocutory orders enumerated in section 963 of the Code of Civil Procedure.” See also Lapique v. Plummer, 24 Cal. A. 685; Rose v. Lallande, 17 Cal. A. 308. In tbe case of Rauer’s Law & Collection Co., Inc., v. Standley, 84 Pac. 214, tbe Court of Appeals for tbe Third District of California expressed itself thus: “Upon the second point it is only necessary to say that the order appealed from is not one of the orders enumerated in section 963, Code Civ. Proc. Nor is it ‘a special order made after final judgment.’ The default of defendant had been entered, but no final judgment had been entered on the default at the time notice of appeal was served. Section 585 of the Code of Civil Procedure makes it the duty of the clerk in certain cases, ‘upon application of the plaintiff,’ to enter judgment immediately after the default of the defendant is entered. In certain other cases the plaintiff may thereafter‘apply . . . for the relief demanded in the complaint. ’ We find no statement in the record as to the character of the action, and upon the presumption that ‘official duty has been regularly performed’ (Code Civ. Proc. 1963, subd. 15) by the clerk we must presume that the action was one in which he was not authorized to enter judgment immediately, or at all, upon entering the default, or he would have done so if requested thereto. But, aside from this view, and assuming that the action was one referred to in subdivision 1 of section 963, it appears that no judgment in fact was entered, and hence the [73] order was not one made ‘after final judgment,’ and there is no showing that the clerk was requested to enter judgment on the default.” In view of the jurisprudence above cited, the order of the lower court clearly is not appealable. For the foregoing reasons the appeal taken by the plaintiffs will be dismissed.