De La Torre v. National City Bank of New York

• Decision Date: 15 December 1939
• Docket Number: No. 3516.,3516.
• Parties: DE LA TORRE v. NATIONAL CITY BANK OF NEW YORK.
• Court: U.S. Court of Appeals — First Circuit

110 F.2d 381 (1939)

DE LA TORRE v. NATIONAL CITY BANK OF NEW YORK.

No. 3516.

Circuit Court of Appeals, First Circuit.

December 15, 1939.

Henry G. Molina, of San Juan, P. R., for appellant.

E. T. Fiddler, of San Juan, P. R., for appellee.

Before WILSON and MAGRUDER, Circuit Judges, and BREWSTER, District Judge.

MAGRUDER, Circuit Judge.

On July 3, 1931, the plaintiff filed a complaint in the District Court for the Judicial District of San Juan, Puerto Rico, on an over-due promissory note in which the present defendant-appellant and his sister jointly and severally promised to pay the American Colonial Bank of Puerto Rico the sum of $10,398.38 with interest at 9 per cent per annum after maturity, the note having been endorsed by the payee to the plaintiff. Judgment went against the sister by default. The judgment for the full amount of the note plus interest and costs, which was rendered against the present defendant-appellant, was affirmed on appeal by the Supreme Court of Puerto Rico, which judgment, in turn, was affirmed on appeal by this court, except as to an item of costs not now material. De La Torre v. National City Bank of New York, 1 Cir., 91 F.2d 399. The Supreme Court of the United States denied certiorari. Torre v. National City Bank, 302 U.S. 752, 58 S.Ct. 272, 82 L.Ed. 581.

The case is now here again. It appears that at or about the time of commencing the original suit in 1931 the plaintiff caused to be attached certain real property of the defendant-appellant as security for any judgment that might be rendered; that subsequently, while the said judgment was on appeal, a further attachment was made of a so-called "mortgage credit constituted in favor of this defendant by H. L. Cochran, which credit is due and demandable," having a face value of over $12,000. The present appeal derives from a proceeding instituted by the defendant-appellant in the District Court of San Juan to annul and avoid an attachment made on ganancial property (bienes gananciales) of his conjugal partnership. The record does not show when this petition was filed in the District Court, nor is the petition itself included in the record. It seems from the opinion rendered in the District Court that this petition related only to the real property which had been attached, and not to the "mortgage credit" previously mentioned.

When the previous appeal was pending in this court the defendant filed a motion in the Supreme Court of Puerto Rico asking that the amount of the supersedeas bond be reduced, for the reason that the judgment appealed from was amply secured by the attachment on the property previously mentioned. This motion contained no intimation of the contention now maintained by the defendant, that the real property attached was community property and as such not subject to attachment for a debt of the husband incurred, as here, for the accommodation of a third person.

The District Court denied the petition to vacate the attachment. The Supreme Court of Puerto Rico affirmed the judgment of the District Court, discussing at length the old Spanish law as to ganancial property and considering how far this law had been modified by the provisions of the Civil Code of Puerto Rico. The court concluded that though the Civil Code had limited the power of the husband by voluntary conveyance to alienate or encumber real property of the conjugal partnership without the express consent of the wife, it left untouched the old Spanish law subjecting such property to attachment by creditors of the husband. On petition for rehearing the Supreme Court of Puerto Rico filed a further opinion affirming its previous conclusion. The appeal was duly taken from the judgment of the Supreme Court of Puerto Rico.

Appellee now moves to dismiss this appeal.

The first ground of the motion is that the issues decided on the merits in favor of the appellee by the territorial courts, involved "purely a question of local law based on a construction of Civil Law of Spanish origin; that it is the established practice of this court to affirm the sentence of the Supreme Court of Puerto Rico unless it is established that its decision is clearly wrong; that appellants have not assigned as error that the decision of the Supreme Court of Puerto Rico is clearly wrong, which is the only basis upon which this court would be justified in reversing." It is true that since the intimation to us in Diaz v. Gonzalez, 261 U.S. 102, 105, 106, 43 S.Ct. 286, 67 L.Ed. 550, we have been reticent about setting ourselves up as experts in esoteric points of Spanish law in opposition to the views of the territorial courts. Appeals in such cases are therefore likely to be futile and merely to cause needless delay and expense. But the question at issue here has never been passed upon by this court and under Section 128 of the Judicial Code, 28 U.S.C. § 225, 28 U.S. C.A. § 225¹, appeal to this court is conferred as a matter of right, provided the jurisdictional requisites are present. We cannot therefore dismiss the appeal on the first ground urged by appellee.

Another ground urged in the motion to dismiss, relating to alleged lack of diligence on the part of appellant in having the record printed, is without merit.

It is also urged as ground of dismissal "that it nowhere appears in the record that the jurisdictional amount of $5,000 is involved."

When the case was here before, the question at issue was the liability of the defendant-appellant on a note for the principal sum of $10,398.38 with interest; the value then in controversy, exclusive of interest and costs, of course exceeded $5,000. But on the present appeal the value in controversy is not the amount of the note, but either (a) the value of the property subject to the attachment which the defendant-appellant unsuccessfully sought below to vacate, or (b) the amount still owing on the judgment debt for which the attached property stands security, whichever is the smaller. See Martinez v. International Banking Corp., 220 U.S. 214, 220, 221, 31 S.Ct. 408, 55 L.Ed. 438; Municipality of Rio Piedras v. Serra, Garabis & Co., 1 Cir., 65 F.2d 691, 697, 698.

The record now before us does not disclose the value at present in controversy. The petition for appeal, which was allowed by the Supreme Court of Puerto Rico, contains no allegation as to the value of the attached property nor indeed does it contain any reference to the matter of the value in controversy. The appellant points out that under our Rule 14, paragraph 13, reference may be had to the record of the previous appeal in this case. We have examined this record, but are unable to find anything in it which would supply the missing jurisdictional requirement. In the first place, it nowhere appears that the so-called "mortgage credit", which was attached, was part of the property of the conjugal partnership; and as we have said, we infer from the opinion of the District Court that the motion to vacate the attachment related only to the real property. For all we know, a large part of the amount due may already have been realized out of the attachment of this chose in action. Furthermore, it appears from the record in the previous appeal that the defendant-appellant's sister, the co-maker of the note, executed a mortgage of property to secure the note. It...