Goffinet et al., Plaintiffs and Appellees, v. Polanco, Defendant and Appellant.

Appeal from the District Court of Humacao in an Action to Recover an Agricultural Loan. — Motion for Dismissal of Appeal.

No. 2861.

Decided November 21, 1922.

Appeal — Statement op Case — Extension op Time. — A motion for dismissal of an appeal on the ground that the extensions of time granted the appellant by the court below for filing the statement of the ease were null and void, can not be said to be premature because th© appellees did not raise that question in the court below.

Id. — Id.—Id.'—Indefinite Extension. — In this ease the appeal was taken on August; 5, 1922. On August 11, 1922, the court granted the appellant an extension qf time for filing the statement of the case to be computed from the day on which the stenographer delivered to him the transcript of the notes asked for. On August 23, 1922, the court allowed the stenographer thirty days within which to deliver the transcript to the appellant and thereafter granted the appellant other extensions for filing the statement of the case. Held: That as the first extension was void because it was indefinite, the second one was void also because when it was granted the 10 days allowed the appellant for filing the statement of the case had expired; therefore, the transcript not having been filed in the Supreme Court within the time allowed by law, the appeal should be dismissed.

The facts are stated in the opinion.

Messrs. A. Sarmiento and J. Puig for the appellant.

Messrs. E. G. Molina and B. Cuevas Zequeira for the appellees.

Me. Justice Aldeey

delivered the opinion of the court.

This is a motion for dismissal of the appeal taken in this action on the ground that the transcript of the record was not filed in this court within the thirty days following the filing of the notice of appeal, and it is alleged that although the lower court granted the appellant an extension of the ten days allowed for presenting a statement of the case, that extension is void because it is indefinite.

*202The appellant opposes the motion and alleges that it is premature because the said extension and others that were granted were not opposed in any manner by the appellees in the lower court, citing the cases of Ciuró v. Ciuró, 19 P. R. R. 1136, and Rossy v. Fernández, 21 P. R. R. 257, wherein one of the reasons for refusing to dismiss the appeal was that the appellee had not opposed the granting of further extensions and had taken no action in the lower court. In point of fact, the question now raised by the appellant was not in issue in those cases ;v therefore, that reason may be considered as given incidentally.

• It is- true that the better practice appears to be that before coming to this court the appellee should take action in the lower court for the annulment of extensions that may have been improperly granted, for this would save time and give the court an opportunity to correct its orders if they are erroneous; but we find no provision of law which imposes that duty upon the appellee to the extent that in case of failure to perform it he .is estopped from moving this' court to dismiss the appeal on the ground of the nullity of the said extensions, because there being no valid extension of the ten days allowed by law for filing the statement of the case, the transcript on appeal should have been filed in this court within thirty days after the appeal was taken;, therefore, we can not hold that the present motion is premature.

On August 5, 1922, an appeal was taken from the judgment rendered in this case and on the 11th of the same month, or within the ten days allowed by law to the appellant for presenting the statement of the case or bill of exceptions, the appellant moved the trial court for an extension of ten days for filing the statement of the case, said extension, to run from the day on which the stenographer delivered to him the transcript of- the notes taken at the tria-l, which he had already asked, for. The court ruled on this motion *203as follows: “Motion granted.” On August 23rd and at the instance of the appellant the couft allowed the stenographer thirty days within Vhich to deliver the transcript to the appellant and thereafter granted the appellant other extensions of time for filing the statement of the case, which has been presented and is now pending the approval of the trial court,- hut on September 7th the appellee filed in this court his motion to dismiss the appeal on the ground that the first extension granted was indefinite and because the order of August 23rd allowing the stenographer time for delivery of his notes to the appellant is void because the ten days allowed the appellant within which to present the statement of the case had already expired when that order was made.

The appellant opposes that motion and alleges that the appeal should not be dismissed because the first extension granted on August 11th is not indefinite, inasmuch as the law creating the office of stenographer allows him thirty days within which tp deliver his notes, which were asked for on August 9th, and also because the court granted other extensions.

We have already held that an extension of time granted, in the manner moved for in this case is indefinite and void. Bélaval v. Cordova Davila, District Judge, et al., 21 P. R. R. 509; Rivera v. North British & Mercantile Insurance Co., 24 P. R. R. 612; Guardian Assurance Co., Ltd., v. Lopez, Acosta, District Judge, 24 P. R. R. 597. It is true that section 6 of the Act creating the office of stenographer prescribes that it shall be his duty to deliver a copy of the stenographic record within thirty days after it is requested unless the court extends the time, which in no case shall exceed another thirty days; but notwithstanding this and as we said in the case of Belaval v. Córdova Dávila, District Judge, et al., supra, “yet it is difficult to avoid the conclusion that the section last above quoted clearly and inexorably *204defines aiíd fixes tfie maximum which tfie court failed to specify, and conclusively converts tfie vague enlargement attempted by tfie latter into a definite extension.”

In tfie manner in which, tfie first extension was moved for and granted, tfie ten days allowed for filing tfie statement of tfie case did not depend upon tfie expiration of tfie thirty days which the - law allows the stenographer for delivering fiis notes after they had been applied for, but upon tfie date of tfie delivery of tfie said notes, although after tfie expiration of tfie said thirty days; wherefore, tfie extension of time was not limited to those thirty days and for that reason, notwithstanding tfie said law, we can not hold that a definite period was granted; especially as tfie court was not informed of tfie date on which tfie transcript was applied for and neither tfie court nor tfie appellee could know when ,tfie thirty days would expire. As according to section 299 of tfie Code of Civil Procedure tfie stenographic notes are not absolutely necessary for tfie presentation of a statement of tfie case, tfie appellant, in order to preserve fiis right to file a statement of tfie case,-should have moved for extensions therefor until tfie stenographer delivered to him fiis notes, if fie desired to use them.

Tfie first extension'granted being null and void because indefinite, the extension granted by tfie court to tfie stenographer on August 23rd is void also, because, in accordance with section 299 of tfie Code of Civil Procedure as amended, tfie ten days within which, tfie appellant could file the statement of tfie case had expired; therefore, tfie thirty days for filing tfie transcript on appeal ran from tfie day on which tfie appeal was taken, and tfie transcript not having been filed in this.court within that time, nor before tfie motion for dismissal, we must sustain tfie motion and dismiss tfie appeal.

Appeal dismissed.

*205Chief Justice Del Toro and Justices Hutchison and Franco Soto concurred.

Mr. Justice Wolf took.no part in the decision of this case.