Ortiz Rivera v. Agostini
Ortiz Rivera v. Agostini
Opinion of the Court
delivered the opinion of the Court.
On June 18, 1962, Gertrudis Ortiz Rivera filed a complaint for damages in the San Juan Part of the Superior Court against José A. Agostini, José D. Reyna, and Alma Realty Corp. The three defendants were summoned on June 20. On August 9 codefendant Alma Realty Corp. answered on the merits denying the facts, and also served interrogatories on plaintiff. The latter answered the interrogatories on September 28, 1962. On December 28 the legal representative for Alma Realty withdrew from the case and Messrs. Rivera Cestero and Rúa assumed the representation.
On February 4, 1963, codefendant José D. Reyna answered the complaint denying all the facts. An amended
Within the term granted to show cause, plaintiff appeared in her own right and alleged that her attorney,. Valentin Esteves, had died; that the case had been delivered to her the previous day, January 29, and moved the court to grant her a term of 60- days to retain another lawyer to handle the matter. In that motion she made the following additional prayer: “It is further prayed that this Honorable Court set this case, for hearing in the shortest time possible, since plaintiff agrees to take- steps to retain another lawyer for the date which may be set.” Notice of this motion was served on the parties. At the bottom thereof she wrote the following note: “Urgent. Please refer to the Honorable Administrative Judge.” By order of February 4, 1964, the judge granted this motion.
“Judgment
“It appearing from the record that on January 17, 1964, plaintiff was required to state in writing, within the period of ten (10) days counted as of the date of service of such order, the reasons why this case should not be dismissed, and that on February 7, 1964, plaintiff requested from the court a term of sixty (60) days to retain another attorney to handle the case, alleging that her attorney had died, which the court granted on February 4, 1964, and that said term has over-expired without plaintiff having taken any action herein, the court, pursuant to Rule 39.2 of the present Rules of Civil Procedure, renders judgment dismissing the complaint, with costs on plaintiff and without attorney’s fees.”
On June 30 plaintiff moved for reconsideration of said judgment and insisted that she had moved for a hearing to be set, which reconsideration was denied by order of August 5, 1964. We issued a writ of review because, in our opinion, plaintiff in this case has been harshly treated insofar as the trial court’s discretion may have been involved, and further, that the case had been erroneously decided as a question of law.
The amendment to Rule 5, effective January 1, 1961, is even more explicit in providing that each Part shall keep a permanent and continuous calendar in which the Administrative Judge shall set for hearing, without the need of any petition therefor, all adversary civil cases ready for trial, and that the Secretary shall notify the parties at least 15 days in advance of the date of the hearing.
According to the record, on April 5, 1963, all the defendants, with the exception of Cohen whose summons was quashed, had been summoned. The complaint had been answered on the merits by three of them and the issue was joined. In that case some defendants could be responsible and others could not. Since that date and during the alleged period of inaction until January 17, 1964, it was the trial court’s duty under Rules 4 and 5 of the Rules of Adminis
In the sphere of sound discretion, the record shows that the case was speedily and diligently litigated by plaintiff while her attorney was living. Afterwards, without assistance of counsel, she can not be expected to be more diligent in showing her interest in maintaining the action. Even though she was not bound to do so, she also moved the court to set her case in the shortest time possible. When the hearing of the motion to dismiss was held, it was two weeks that an attorney of record had already appeared on her behalf. Apparently all these facts were ignored by codefendant Alma Realty Corp. in insisting on dismissal for want of prosecution, and the trial court overlooked them in dismissing the case. The court was even harsher in denying the motion for reconsideration after its attention was invited to the steps taken.
In incidents on dismissal of litigations for want of prosecution, the traditional attitude of the Court of First Instance has been one of liberality in order that the case may continue. In sound administration of justice that tradition is good, considering the social values which may be affected. To deviate drastically, from the prevailing norm in the case of a particular litigant, without there existing fully justified reasons to do so, as in this case in which there are none, may be the negation of equal treatment and, consequently, of fair treatment.
It is desirable that judges of first instance should conserve greater freedom and discretion in confronting the problems before them for the effective functioning of the court and the speediest disposition of adversary matters com
Once more we repeat that that is our norm and that the sound discernment, good sense, and sound discretion of the trial judges in the handling and prosecution of judicial ■matters will not be impaired in our forum. Once in a while, however, we entertain cases in which the sound discretion and justice seem to point toward a direction other than that in which they were exercised and applied, and in that case, and notwithstanding our norm not to interfere, it is our unwavering duty to correct whatever may be in excess or unjust in the exercise of such discretion in order that the rights which we are called upon to safeguard may not be impaired.
In view of the foregoing reasons, the judgment ordering dismissal for lack of prosecution of this litigation will be reversed and the case remanded to the trial court for continuation of the proceedings in a manner consistent herewith.
It was alleged that the five defendants, as engineer, contractor and owners, constructed a building, and that all of them jointly, or one of them responsible for the construction, without plaintiff being able to specify which one, dug a ditch in which she sustained damages.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.