Galafar v. Succession of Morales

delivered the opinion of the court.

This is an action brought by Bernarda Gralafar, represented by her mother, Andrea Gralafar Milián, under the direction of Attorney José B. Diaz, against the Succession of Froilán Morales Ruiz, composed of his brothers and sisters Florentino, Delfina, Jorge, Estebanía and Pantaleona Morales Ruiz and of his nephews and nieces Eugenio, Aurelio, Leonardo, Julio, Demetria Jesús, Filomena and Rosa Morales, the nephews and nieces being the children of Ms deceased brother, Liborio Morales Ruiz, to obtain a judgment declaring the plaintiff to be the acknowledged daughter of Froilán Morales Ruiz with all the rights to which she is entitled as such.

All the said defendants named, with the exception of Este-banía, answered the complaint through Attorney Herminio Miranda. Although Estebanía Morales Ruiz was summoned she did not appear and answer the complaint and upon motion of the plaintiff default was entered against her.

After the trial and on April 13, 1914, the court rendered judgment dismissing ■ the complaint with costs against the plaintiff and from that judgment the attorney for the plaintiff appealed to this court by filing a notice of appeal with its secretary and serving a copy of the said notice on Her-minio Miranda, the attorney for the defendants. ‘

It does not appear that the said Attorney or any other has entered appearance for Estebanía Morales since default *460was entered against her; moreover, Estebania Morales herself testified when called as a witness that although she had been made a party defendant in this case she did not answer the complaint because she acknowledged Bernarda Gralafar as her niece and knew that she was the daughter of her brother Froilán. Furthermore, José B. Diaz, attorney for the plaintiff, stated that he sent by registered mail to Her-minio Miranda, attorney for the other defendants, an exact copy of the transcript of the record, duly certified to by him as attorney for the appellant, and said attorney Miranda drew up his brief in opposition to the appeal in behalf of the respondents whom he represented without making any mention of Estebania.

As will be seen, notwithstanding the fact that the plaintiff knew Estebania-Morales, the defendant in default, and that she had been summoned when the action was begun, she was not served with notice of the appeal. It does not appear from the record .that she was represented at the trial by Attorney Miranda who appeared for the other defendants. Moreover, in answering the complaint Attorney Miranda himself omitted Estebania and she testified at the trial that she did not answer the complaint because she admitted the rights of the plaintiff.

Estebania was an adverse party to the suit and was entitled to notice of the appeal, pursuant to section 296 of the Code of Civil Procedure which provides that “An appeal is taken by filing with the secretary of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party, or his attorney.” Section 940 of the Code of Civil Procedure of California contains a similar provision and in the case of Candelas v. Ramírez et al., 20 P. R. R., 31, we said that the Supreme Court of that State has construed “adverse party” in the sense that it does not include all persons who have been parties to the suit in the court a quo, but only *461those who would be affected by a reversal or modification of the judgment appealed from. O’Kane v. Daly, 63 Cal., 317; Millikin v. Houghton, 75 Cal., 540, and cases cited therein.

Estebania Morales would be affected by a judgment reversing the judgment of the lower court in the same manner as the other defendants. It is possible that as the judgment appealed from was actually favorable she might have contended for its affirmance, notwithstanding her testimony at the trial, if she had been served with notice of the appeal.

In support of this doctrine we cite the case of Candelas v. Ramírez et al., supra, and also the cases of Rondón v. Mollfulleda, 16 P. R. R., 164; Andujar et al. v. Alonso, 17 P. R. R., 410, and Martínez v. Succession of Laurido, 21 P. R. R., 29.

For the reason that notice of the appeal was not served on one of the interested defendants, the appeal should be dismissed without considering the grounds upon which it is based.

Appeal dismissed.