FRANCESCHI et al. v. MERCADO, 269 F. 954

PER CURIAM. We think the motion to dismiss the appeal should be denied for the reason that the judgment of the Supreme Court of Porto Rico dismissing the suit for want of capacity in the plaintiffs to prosecute it was a final judgment from which an appeal would lie to this court.

We also think the right to prosecute the appeal was not waived, even though the plaintiffs, appellants, after taking the appeal, may have applied to the District Court of Ponce and obtained an order extinguishing the bankruptcy proceeding for want of prosecution and have since brought a second suit against the defendants, appellees, for the same cause, in which they allege that the order of extinguishment in the bankruptcy proceeding restored their capacity to sue:

(1) Because the order extinguishing the bankruptcy proceeding may not have been rightfully entered; and (2) because the prosecution of the second suit may he open to defenses which could not be availed of in the present suit.

Furthermore, a careful study of the record, of the opinions of the District and -Supreme Courts, and of the extended arguments and briefs of counsel convinces us that the conclusion reached by the Supreme Court on the question of the legal capacity of the plaintiffs, the appellants, to prosecute the suit and the subsidiary questions relating thereto which it passed upon was right, and that, in view of the careful and painstaking way in which the matter was considered by that court, nothing would be added by a restatement of the case and a discussion of the points decided.

The judgment of the Supreme Court of Porto Rico is affirmed, with costs to the appellees.