
    Fred Utz, Respondent, v. John Hoerr, Appellant.
    St. Louis Court of Appeals,
    December 8, 1885.
    Frivolous Appeals — Appellate Practice. — An appeal from a judgment on an account, prosecuted on the ground that the plaintiff and the defendant testified to an opposite state of things, is frivolous.
    Appear from the St. Louis Circuit Court, George W. Luke, Judge.
    
      Affirmed with damages.
    
    L. J. Smith, for the appellant.
    
      B. Schnurmacher, for the respondent.
   Thompson, J.,

delivered the opinion of the court.

This was an action commenced before a justice of the peace for a balance due on an account. On a trial de novo in the circuit court, the plaintiff, testifying as a witness in his own- behalf, gave evidence tending t@ ■show that the services were rendered at the price stated, and that there was a balance due him as stated in the account sued on. The defendant took the stand and testified to the contrary. The jury rendered a verdict for the plaintiff. The ground on which the appeal is prosecuted is that the testimony of these two witnesses presented a case where the evidence was equally balanced, and therefore, there was nothing to move the court. There is ho sense in this proposition. The credibility of the witnesses was wholly a matter for the jury to determine, and this court does not weigh evidence in actions at law.

The judgment will be affirmed with ten per cent, damages. It is so ordered.

All the judges concur.  