Heirs of Dragoni v. Dragoni y Dragoni
Heirs of Dragoni v. Dragoni y Dragoni
Opinion of the Court
We are asked to dismiss this appeal on the ground that the order which is sought to be reviewed is not appealable.
The plaintiffs in the action herein obtained from the lower court an order for the attachment of certain property of the defendant to secure the effectiveness of any judgment that might be rendered. After the attachment was levied, the defendant moved for its discharge and offered to furnish any bond that the court might fix. The court by au order granted the motion and fixed the amount of the required bond. This is the order from which an appeal has been taken by the plaintiffs, who urge, in opposing the motion to dismiss the appeal filed by the appellee, that the appeal lies in accordance with subdivision 3 of section 295 of the Code of Civil Procedure, as the order appealed from operated to vacate the order of attachment previously entered.
The order sought to he reviewed did not vacate the order of attachment, since the effect of the former was only to permit the substitution of the attached property by an undertaking to answer for the value thereof. Because it would
Section 15 of the Act to secure the effectiveness of judgments provides that the payment or deposit by the defendant of the sums claimed from him, or a bond given by him to cover the claim, shall suspend the attachment ordered to secure said claim, or shall release an attachment already in force. In the case at bar the furnishing of a bond suspends the attachment levied but does not operate to vacate the order of attachment. An application such as the one made in this case, seeking to substitute a bond for the property attached, does not challenge the validity of the attachment, and the order allowing the substitution does not operate to vacate the original order of attachment, but leaves it in force. By reason of all this, the order appealed from does not fall within the provisions of subdivision 3 of section 295 of the Code of Civil Procedure, which allows an appeal from an order dissolving or refusing to dissolve an attachment, and hence such an order is not appealable.
The decisions cited by the appellants are not applicable to the case at bar. The case of Paz v. Bonet, 31 P.R.R. 64, is not applicable, because there the precise question of whether or not an order discharging an attachment is appealable was not decided and, undoubtedly due to the facts of the case, the court preferred to consider the appeal and to affirm the order dissolving the attachment without deciding the motion to dismiss which had been filed. The case of Polanco v. Goffinet
The appeal must be dismissed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.