
    No. 1458.
    George Siegel v. Philip Drumm.
    The stipulation in the act of mortgage of five por cent, to cover attorney’s fees in case the holder is compelled to resort to legal proceedings to compel- payment of the obligation is not usurious. Damages will not be allowed for frivolous appeal unless prayed for in the answer to the appeal.
    from the Sixth District Court of New Orleans, Leamownt, J.' Fifth District Court, presiding.
    
      Walter H. Bogers and G. H. Lrauglm for appellee, Ootton & Levy for appellant.
   Taliaferro, J.

The defendant appeals from an order of seizure and sale rendered against him by the Judge a quo upon a promissory note for the sum of $3600 secured by mortgage. The defense set up in this court is that the contract is usurious, inasmuch as there is a stipulation of eight per cent, interest and five per cent, to cover attorney’s fees in case the plaintiff should be compelled to resort to legal means to compel payment of the obligation. This court has frequently decided that such a stipulation as to attorney’s fees docs not constitute usury. 11 An. 217, 12 An. 407.

It would seem that the course pursued by the defendant has been merely for procrastination, and that his appeal may properly be classed with those which receive no countenance from this Gourt.

The plaintiff’s counsel asks in his brief that this court award damages for a frivolous appeal. This we are precluded from doing, as he has filed no answer to the appeal. See Code of Practice, Article 907, 8 An. 73.

It is ordered, adjudged and decreed that tlie judgment of the lower court be affirmed, and that the sheriff proceed according to law to the execution of the writ issued in the case.  