
    Phœnix Assurance Company vs. Fred H. McDermont, et al.
    
    Opinion filed December 6th, 1897.
    Frivolous Appeal — Damages.
    In this case a penalty of 10 per cent, is awarded respondent on the ground that the appeal was taken solely for delay.
    Appeal from District Court, Grand Forks County; Fisk, J.
    Action by the Phœnix Assurance Company of London against Fred H. McDermont, R. M. Carothers, and Charles Carothers on a bond. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    
      McDermont & Meyer, for appellants.
    
      Cochrane & Feetham, for respondent.
   Bartholomew, J.

Plaintiff brought this action on the bond of the defendant McDermont as principal with the other defendants as sureties. The bond was given for the faithful performance by McDermont of his duties as an agent for plaintiff. The complaint claimed a certain balance due from said McDermont as agent and unaccounted for. The answer was a qualified denial of of indebtedness, with an admission of the agency and the bond, and a counterclaim. On the trial the plaintiff called McDermont as a witness, and proved the balance due and unpaid, and rested its case. Plaintiff objected to any evidence under the counterclaim, on the ground of its insufficiency in law. Thereupon the counterclaim was withdrawn without prejudice to the right to bring an action thereon. Thereupon verdict was directed for plaintiff, but entry of judgment was stayed for a reasonable time, in order to permit an action on the counterclaim. Such action was brought, but afterwards dismissed, and finally, after a delay of more than two years, judgment was entered on the verdict. From that judgment an appeal was perfected in April, 1897. Appellants failed to have any statement settled or the record transmitted to this court within the time prescribed by statute. Thereupon respondent procured a statement to be settled, and brought the record to this court. In this court appellants file no brief. The judgment is therefore affirmed, and under the facts .recited we deem this a proper case, under the discretion lodged in this court by § 5575, Rev. Codes, to inflict a penalty for the delay.

(73 N. W. Rep. 91.)

Judgment affirmed, with 10 per cent penalty.

All concur.  