Bas v. Municipal Court of Cayey
Bas v. Municipal Court of Cayey
Opinion of the Court
delivered the opinion of the Court.
Luis E. Bas appeals from a judgment whereby a district court annulled a writ of certiorari previously issued to a municipal court.
The first assignment is that the district court erred in holding that the municipal court acquired jurisdiction over the person of defendant. Defendant, in the municipal court, attempted a special appearance for the sole purpose of challenging the sufficiency of the summons and of the service thereof. At the same time, however, he filed a demurrer, an answer and a motion for a change of venue. The Law of 1921 (Session Laws of that year 112) “Establishing
“If a party defendant wishes to insist upon the objection that he is not in court for want of jurisdiction over his person, he must specially appear for that purpose only, and must keep out for all purposes except to make that objection. If he raises any other question, or asks for any relief, which can only be granted upon the hypothesis that the court has jurisdiction of his person, his appearance is general, though termed special, and he thereby submits to the jurisdiction of the court as completely as if he had been regularly served with summons.”
See also Aparicio Brothers v. H. C. Christiansen, 23 P.R.R. 457; Gómez v. Board, 40 P.R.R. 635; Sommer v. Unknown Heirs of Hahn, 161 Pac. 298; Thompson v. Alford, 128 Cal. 227; Shelley v. Casa de Oro, (Cal. App.), 24 P. (2d) 900.
The second assignment is that the district court erred in holding that an attachment bond, filed in a municipal court, was sufficient and that the attachment issued after the filing of such bond was valid.
The fact that the municipal judge did not endorse upon the bond his approval thereof in writing before issuing the attachment did not invalidate the writ. 6 C. J. 172, Section 311.
A more serious objection was that neither of the sureties stated in his affidavit that he paid taxes as owner of the real estate referred to in such affidavit. Section 6 of “An Act to secure the effectiveness of judgments”, approved March 1, 1902 (Code of Civil Procedure 1933 ed. 99) provides that:
“Personal security can only be given by such persons as pay into the treasury of Porto Rico, in the capacity of real estate owners, a tax on property representing a capital double the value of the bond required by the court for ordering the remedy.”
In the instant case each of the sureties stated under oath that he was the owner of real estate worth more than double the amount of the undertaking exclusive of all charges, liens and encumbrances. The sine qua non of the statute is the payment of taxes, not ownership. We can not say that ownership is synonymous with the payment of taxes as owner. The probability is that the owner of real property pays the taxes thereon as the ■ owner thereof. When such payment is a statutory condition precedent to the validity of an attachment bond, however, the fact can not be left to inference or conjecture.
We are not prepared to say that the omission in the instant case was a mere irregularity or that the motion to dissolve the attachment because of the invalidity of the attachment bond came too late. On the other hand, in view of the strong probability that the sureties were as a matter of fact paying taxes on their real property, plaintiff should be given an opportunity to supply the omission in the affidavits, if he can, before dissolution of the attachment.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.