Colon v. Fernandez y Sobrino , 3 P.R. Fed. 488 ( 1908 )

Rodey, Judge,

delivered the following opinion:

The complaint herein was filed on March 5, 1908. It is an action in ejectment, or as near to that form of action as can be-under the local Code. The local Code of Civil Procedure-(1904), § 89, gives a defendant ten days to answer. On March, 11th, which would be the ten days exclusive of Sundays, the defendants, by their attorney, instead of filing an answer, filed a. motion under § 1385 of the Civil Code of 1902, requesting that, certain other persons, whose lessees the defendants are, be notified of the suit and summoned to appear and defend the same. This motion was at once granted. Then counsel for plaintiffs, moved that the original defendants be required to answer at once; but counsel for the latter insists that, under said § 1385,, he should not be required to answer until the expiration of the-time granted to these new defendants who were thus notified. The portion of § 1385 that he relies on reads as follows: “This, notification (to the new defendants) shall be made in the manner established in said law for the summoning of defendants.. The time to answer granted to the vendee shall be suspended until the expiration of that granted to the vendor or vendors to-appear and answer the complaint, and which periods shall be-the same as those granted all defendants by the aforesaid law ■of civil procedure, counted from the notification prescribed in the first paragraph of this section.”

Sec. 1456 of the Civil Code of 1902 would appear to make this system of notifying vendors to appear and defend a suit against their vendee also apply to lessors, which is the case here. Sec. 1385 is in the Civil Code of 1902, while the present Code of ■Civil Procedure was passed two years later, in 1904; so that the references above quoted from in § 1385 refer to the old Code of Civil Procedure, and we find that both in suits of greater and lesser import §§ 524 and 682 respectively fix the time in which an answer could be filed at nine days from citation. This old Code has been completely repealed, of course.

As stated, § 89 of this new Code of Civil Procedure gives •a defendant just ten days to answer; and if a defendant can wait until the very last moment of the ten days in which he has a right to answer himself, and then move to have his lessor or ■vendor summoned, and thus get another ten days, he could keep that up indefinitely by summoning additional ones at the end ■of the second ten days, and all this time refrain from answering himself. We do not think that is the intent of the law; and as all new defendants are brought in for the sole benefit of the ■original defendant, we think it is his duty, immediately on being ■served with process, to move that these additional defendants be brought in, or to cause them to be cited himself. It is our ■opinion that when he fails to do that immediately, he waives his right to make the plaintiff wait on his convenience.

Therefore the defendants in this case will be required to answer within two days from the filing of these, our views.