FONT v. ANDREU ET AL. APPEAL from the District Court of Ponce. No. 73. Decided March 27, 1905. SEPARATE PROPERTY OF THE WIFE-OBLIGATIONS OF THE CONJUGAL PARTNERSHIP. The provisions of section 248 of the Code of Civil Procedure can not affect the right of a party acquired by virtue of a judgment of execution delivered prior to the date on which the said code took effect, and by which an attachment on the rents and profits of the wife's separate property as profits of the conjugal partnership was declared valid and in force to answer for obligations contracted by the conjugal partnership. JUDGMENT-RES JUDICATA. The provisions of a law can in no way affect the decision contained in a judgment delivered prior to the date on which the law took effect without violating the principle of the doctrine of res judicata. ID.-EXECUTION OF JUDGMENT.-If because the procedure was not expressly outlined in the Code of Civil Procedure the lower court in rendering judgment acted in accordance with the procedure set forth in articles 931 et seq., of the old Law of Civil Procedure when the latter procedure appeared to harmonize with the spirit of the new code, it proceeded properly, in accordance, with section 36 of the new Code. The facts are stated in the opinion. Mr. López Landrón, for respondent. MR. JUSTICE FIGUERAS delivered the opinion of the court. Setting aside everything which is not the subject-matter of the appeal, we will state the facts in the case submitted to the consideration of this Supreme Court. Catalina Font y Pons brought execution proceedings against Paulino Andreu in the District Court of San Juan, alleging that by public instrument of July 27, 1895, the latter received from the former 3,000 pesos in consideration of the payment to her of an annual pension of 720 pesos, or 60 pesos the last day of each month, the said obligee not having complied with the obligation which he assumed. The suit having been prosecuted in the usual form, judgment was rendered on December 15, 1899, the adjudging portion of which provides as follows: "We adjudge that we should order and we do order the execution issued to continue until the property attached shall have been sold, and with the proceeds of such sale payment shall be made to the execution creditor to the extent of the principal sum claimed, amounting to 1404 pesos, interest due and to become due, and costs incurred or to be incurred." The attachment referred to in the adjudging portion above transcribed was levied on November 28, 1899, on an estate named "Machuchal," with a frame dwelling thereon, situated in Santurce, a barrio of this city, consisting of 200 cuerdas of land, and which, according to a statement of Roberto Pizarro, the latter had leased for the price of 20 pesos per month from Francisca García, the wife of Paulino Andreu, the execution debtor. As Francisca García brought an action in intervention of ownership against the execution creditor and the execution debtor, it was finally decided that the execution proceedings brought by Catalina Font should continue against the fruits and products of the "Machuchal" estate which had already been attached, for which reason the judgment rendered in said action in intervention by the District Court of San Juan was affirmed, inasmuch as said judgment respected the bare ownership in favor of Francisca García. In compliance with this judgment the attachment on said estate was dissolved and on June 4, 1904, it was limited to the products and income derived therefrom in the period between November 28, 1898, the date of the attachment of the estate, and December 3, 1902, when the decree of divorce granted in the action for divorce brought by Francisca García against her husband Paulino Andreu became final. With affairs in this state, counsel for Catalina Font y Pons filed a motion in the execution proceedings in the San Juan court for a reference to carry out the execution of the judgment rendered. This motion is based on sections 205 and 209 of the Code of Civil Procedure in force, which reads as follows: "Section 205. When the parties do not consent the court may, upon the application of either, or of its own motion, direct a reference in the following cases: "1. When the trial of an issue of fact requires the examination of a long account on either side, in which case the referee may be directed to hear and decide the whole issue or report upon any specific question of fact involved therein. "2. When the taking of an account is necessary for the information of the court before judgment or for carrying a judgment or order into effect. "3. When a question of fact, other than upon the pleadings, arises, upon motion or otherwise, in any stage of the action. "4. When it is necessary for the information of the court in a special proceeding. Section 209. The referees must report their findings in writing to the court within twenty days after the testimony is closed, and the facts found and the conclusions of law must be separately stated therein." This motion was argued in open court, counsel for Francisca García denying the right of Catalina Font, and contesting the reference sought, basing his contention on section 248 of the Code of Civil Procedure in force, which provides as follows: Section 248. All real or personal estate belonging to any married woman at the time of her marriage, or to which she subsequently becomes entitled in her own right, and all the rents, issues and profits thereof, and all compensation due or owing for her personal services, is exempt from execution against her husband." The judge delivered the following opinion: "Opinion of the court.-Catalina Font y Pons, plaintiff, v. Paulino Andreu, defendant.-Counsel for the plaintiff has filed a motion in this court for the appointment of a referee with respect to the execution of the judgment in this case. This is a case which was prosecuted in the District Court of San Juan and in which judgment was rendered. There are two other matters also prosecuted in the District Court of San Juan which bear a close relation to this question, namely, the complaint in intervention of ownership brought by Francisca García y Macías against Catalina Font y Pons and Paulino Andreu Morales, and the action for divorce brought by Francisca García y Macías against her husband, Paulino Andreu y Morales. In the matter of the complaint in intervention the district court rendered judgment holding that the bare ownership of the estate which had been attached in the execution proceedings in which the motion to which we refer is made, vested exclusively in Francisca García y Macías, but dismissing the complaint in intervention as to the products and income derived from said estate, which products and income were to be considered as community property. An appeal in cassation was taken from this judgment to the Supreme Court, which was decided on April 12, 1904, the decision rendered containing the following judgment: 'That we should affirm and do affirm the judgment rendered on November 14, 1902, by the District Court of San Juan, with the costs against the appellant, Francisca García y Macías, without prejudice to the rights which she may have by virtue of the judgment rendered in the action for divorce brought against her husband, Paulino Andreu, and let the record of the proceedings in intervention and of the action. for divorce, introduced in this case in furtherance of justice, be sent to the District Court of San Juan, together with a certified copy of this judgment.' The judgments rendered in the action of intervention of ownership were brought to the record of the main action; that is to say, the one brought by Catalina Font against Paulino Andreu, for the recovery of a sum of money, which is the action in which this motion was filed, and on the petition of the plaintiff the District Court of San Juan made an order on June 17, 1904, dissolving the attachment levied on the 'Machuchal' estate, and leaving it in force as to the products and income from said estate derived from the date of said attachment, November 28, 1899, to the date when the decree of divorce became final in the action for divorce brought by said Francisca against her husband, Paulino Andreu. These are the facts which we have believed it advisable to establish in order to decide the question now presented, which, in our opinion, embodies two points: First, whether Catalina Font should be recognized to have any rights, and the manner of enforcing such rights; and, second, whether or not a referee should be appointed to decide the question of fact and submit his findings to the court. The motion thus presented has been duly argued in open court by counsel for the parties in interest. Counsel for Francisca García objected not only to the appointment of a referee, but also to the recognition of any right in the plaintiff. In support of the latter point he cited the provisions of section 248 of the Code of Civil Procedure, which exempts from execution all real and personal property belonging to any married woman at the time of her marriage or to which she subsequently becomes entitled in her own right, and all the rents, issues and profits thereof. The provisions of this article are indeed final. Confining ourselves thereto, we could not direct that a writ of execution against the husband should be issued not only against property of the wife, but against its products. "But this is so at the present time; that is to say, it has been so since July 1, 1904, when the new Code of Civil Procedure went into effect. In this case we must decide the question in accordance with the substantive law in force at the time the proceedings to which we have made reference were prosecuted and decided, for which reason we must accept as valid and effective the judgment rendered in this action, as it was by virtue of the judgments rendered in the other proceedings mentioned; that is to say, in the matter of the complaint in intervention and in the divorce the exact status of which is perfectly determined in the order of the District Court of San Juan of June 4, 1904. We therefore believe that the judgment could have been enforced against the products and income from the Estate of Francisca García obtained during the time which elapsed from November 28, 1898, to the date on which the decree of divorce became final; that is to say, during the time such products partook of the character of community property. Therefore, we must decide the first question in the sense that it is impossible to fail to recognize the right of Catalina Font y Pons. in this action by virtue of the judgment rendered therein, in relation with the judgments rendered in the proceedings in intervention and divorce, which we have mentioned several times. Now, then, in entering upon the decision of the second question, should a referee be appointed to decide this case? Is such appointment authorized by the law? After a cursory examination of the provisions of the Code on the subject, we believe that this case is not comprised therein; and, furthermore, being a case which has its origin under the former legislation, and one in which three judgments are involved, in which the party opposing the one praying for the appointment of a referee has objected to such appointment, the court deciding the question either in accordance with the law or in its own discretion, we do not believe that the question should be submitted to a referee. It appears to us |