Benet v. Hernández
Benet v. Hernández
Opinion of the Court
delivered the opinion of the court.
This is an appeal from the District Court of Mayagüez.
The plaintiff filed a complaint against the defendant in the District Court of Mayagüez and at the same time made a motion for an attachment to secure the effectiveness of the judgment. The court sustained the motion upon the plaintiff ’s giving proper bond and ordered that the marshal attach sufficient property of the defendant to secure the effectiveness of the .judgment, whereupon the secretary issued the corresponding writ of attachment to the marshal. Then the plaintiff notified the marshal in writing that the attachment should be levied on the following properties of the defendant situated in the municipal district of Manatí:
“A rural property called Sabana Seca, situated in the ward of Coto of the municipal district of Manatí, composed of 179 cuerdas, as described in the transcript of the record.
“A rural property without name situated in the ward of Coto of the municipal district of Manatí, composed of 100 cuerdas, as described in the transcript of the record.”
The marshal levied the attachment on the said properties and served the same personally on the defendant, who resides in the city-of Mayagüez, within the jurisdiction of the district court .which granted the writ of attachment, and the
On August 7, 1914, or seventeen months after the attachment had been recorded and the order entered by the court had been duly served on the defendant, the defendant filed a motion in the district court praying that the court dissolve the attachment on the ground that the Marshal of the District Court of Mayagüez had no authority to attach property in another district or to issue a notice to the Registrar of Property of Arecibo for the purpose of recording the same. The motion was overruled' by the court and an order entered to that effect. Later the defendant moved that the court' reconsider its said order, citing certain jurisprudence, and as the court also overruled the motion to reconsider, the defendant appealed from the original order overruling the motion to dissolve the attachment and from the order overruling the motion for 'reconsideration, and the consideration of these is now before this court.
We agree with the respondent that the court properly issued the order to attach property of the defendant to secure the effectiveness of a judgment. The order was unquestion
Section 245 of the Code of Civil Procedure provides:
“Where the execution is against the property of the judgment debtor, it may be issued to the marshal of any district in the Island. Where it requires the delivery of real or personal property, it must be issued to the marshal of the district where the property, or some part thereof, is situated. Execution may be issued at the same time to different districts.”
And section 4 of the Act of March 10, 1904 (Acts of 1904, page 112), says:
“SbctioN 4. — Services and execution of process. — When process or notices are returnable to another district, he may inclose such process or notice in an envelope, addressed to the officer from whom the same emanated, and deposit it in the post-office, prepaying postage.”
Eospressio unius est exclusio alterius. The law has provided ample machinery for the execution of judicial process in another district, and the same reasoning applies to an order for the effectiveness of a judgment as well as for any other kind of process. This view becomes more apparent when it is remembered that the ultimate step in an attachment is the sale of the property attached. The marshal must make the sale.
As we hold that the action of the marshal in personally
In accordance with the foregoing reasoning, the order of the District Court of Mayagüez in refusing to annul the attachment made by the marshal must be reversed, the attachment annulled and the order of the court of March 27, 1913, modifying the description in the Eegistry of Arecibo, likewise annulled, without prejudice to the right of any one interested to take such steps as he may be advised to secure the annulment of the record of the attachment.
Orders reversed and attachment vacated.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.