Luis González Peralta, et al., Plaintiffs and Appellants, v. Irma López Cepero, Defendant and Appellee.

No. 9970.

Argued April 5, 1949.

Decided April 28, 1949.

Ruiz Suria & Ruiz Suria for appellants. Armando A. Miranda for appellee.

Mr. Chief Justice de Jesús

delivered the opinion of the Court.

*882déféiidarit ail'd appeíl'ée filécl in this Gbiirt a iribti'dn to 'disítiiss as frivblBris the appeal táferi frorii the judgment denying an a'ctiBh for daiiiágés Bbdiight by Lilis Gdñzáléz Peralta and others against her. The fiiBtiBh does not state in what cohsists thé frivolity ‘of thé appéál nor dbes ajjpSellee attach any paper to prove it. But the appellants filed a motion asking leave to appeal without the need of filing a transcript of the evidence, állegirig that the appeal merely involved a question of law which coúíd be decided on the judgment roll which they áttáchéd.

It appears from the judgment roll that áppellee héreiíi had instituted an unlawful detainer proceeding in the Munic-ipál Court of Sari Juan agáirist appellants herein, arid that the complaint was granted; that the defendants appealed to the district court within the statutory period but furnished :no bond nor deposited the rentals which they owed iri order to perfect their appeal. On this ground plaintiff therein, defendant ánd appellee iri this case, sought the disinissal of the appeal and the court sb ordered. The defendant and ap-pélleé herein obtained the évictíón of the defendants iri that cáse and the latter brought this action for damáges on the .ground that thé eviction wás obtained before the forty days counted from the ddy thé judgment Became final expired. Appellants maintairi thát the jridgnient of unlawful detainer •did not beconié final tiritil after the appeal wás diáihisséd in the district co'urt. The appellee, on the contrary, urges that thé judgffaeht b'écáirié ririáppéaláble {firme) on thé expibátion of the fivé-day period after notice of the judgment of unlawful detainer was served on the defendants therein, and that the eviction took place after the forty days following the aforesaid period of five days had elapsed.

The only question for decision in this motion for dismissal is which of the two dates should be taken as a basis fob determining when the judgiriént of tíhíáwfúl detainer became unappealable. If the judgment was already uriap-*883péalable when the eviction took place' there is no doubt that the appeal from the jüdgíheht dishdissihg the complaint for damages is frivolous. Section.631 of the Code of Civil Procedure^ as amended by Act No. 170 of May 9,1942 (page 888) provides “the defendant shall be denied the right of appeal unless he executes an undertaking to the satisfaction of the court, to answer for the damages he may cause to the plaintiff, and for the costs of the appeal; and when the unlawful detainer is based oh the nonpayment of sums agreed upon, the defendant may, at his option, execute the said undertaking, or deposit with the clerk of the court the amount of the indebtedness up to the date of judgment.”

Since the defendants in eviction did not furnish the bond nor deposit with the clerk of the court the amount of the indebtedness up to the .date of the judgment, the appeal was never taken. This being so, the judgment of unlawful detainer, under § 630 of the Code of Civil Procedure, became unappealable oh the expiration of the five-day period counted from the notice of said judgment on the defendants. Accordingly, the eviction was made within thd statutory period and the plaintiffs have no cause of action against the defendants. The _áf$feáf,a therefore,’ is cllhrly Irívdídüs dhd miisi fee dismissed’.' _ > •*"

_ > Mr.’ ¿fúslicé iíáhréro &d hot pártiéípáíe’ hefeííí;

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