
    No. 3709.
    (Court of Appeal, Parish of Orleans.)
    AYERS ASPHALT PAVING CO. vs. EDWARD BERNET.
    Appeal from Civil District Court, Division “A.”
    
    Dinkelspiel and Hart, for Plaintiff and Appellee.
    P. L. Fourchy, for Defendant and Appellant.
    
      X. Where the record of appeal contains 110 note of evidence, statement of. fact, hill of exception or assignment of error, the appellee may either move the dismissal of the appeal or by answering- the appeal pray thf affirmance of the judgment.
    2. Where- the appeal is frivolous and taken for delay damages will be allowed.
   MOORE, J.

This was a suit on a paving contract, the answer being simply a general denial.

There was judgment in favor of the plaintiff as prayed for,, and defendant appealed.

As the record contains no note of evidence, statement of facts, bill of exceptions or assignment of errors, the appellee had the option to either move the dismissal of the appeal, or, by answering' it, pray the affirmance of the judgment.

Appellee has pursued the latter course and has additionally prayed that appellant be mulct in damages for a frivolous appeal.

That the appeal is frivolous is patent. There was no valid defence tendered below; and in this Court the cause was neither briefed nor argued by appellant.

The appeal was manifestly taken for delay, and therefore, in affirming the judgment, we will condemn the appellant in damages.

If is therefore ordered, adjudged and decreed that the judgment of the lower Court is affirmed, and that in addition thereto the plaintiff, Ayers Asphalt Paving -Company, do now have and recover of the defendant, Edward Bernet, five per centum upon the judgment below for a frivolous appeal and the costs of both Courts.

May 15th, 1905.

Rehearing refused June 27th, 1905.  