
    
      BARBARIN vs. ARMSTRONG
    
    APPEAL FROM THE COURT OF THE PARISH AND CITY OF NEW-ORLEANS.
    If the appellant fail to file the record, and it he brought up hy the clerk of the lower court and the appellee cited, he may pray for affirmation of the judgment.
    Judgment was rendered against the defendant as endorser of a promissory note, from which he appealed. The record was brought up by the clerk of the lower court and the appellee cited, who prayed affirmation of the judgment, with damages, for a frivolous appeal. This was opposed on the ground, that the record should have been filed by the appellant, or brought up by the appellee.
    
      Conrad, for appellant.
    
      Nixon, for appellee.
   Martin, J.,

delivered the opinion of the court.

The plaintiff and appellee has prayed the affirmation of the judgment with damages.

The appellant’s counsel has replied, that the judgment cannot be affirmed, as the record of the suit is not regularly before us, as it was not filed by the appellant, nor brought up by the appellee.

It appears, the record was brought up by the clerk of the Parish Court; but the appellant’s counsel desired the clerk of this court not to receive it, nor to enter it on the docket.

If the appellant fail to file the record, and it be brought up by the clerk of the lower court, and the ap-pellee cited, he may pray for affirmation of the judgment.

Eastern District,

February 1831.

The appellee was duly cited, and his counsel, finding a copy of the record in the Clerk’s Office, might well avail himself of it, and move for the affirmation of the judgment. —Code of Practice 530. We do not see any utility in his procuring a second copy. Lex neminem cogit ad vana.

The opposition made before us by the appellant’s counsel, has rendered it useless for us to inquire, whether his client was entitled to any notice of the appellee’s intention to move for the affirmation of the judgment.

It is therefore ordered, adjudged.and decreed, that the judgment of the Parish Court be affirmed with costs and ten per cent, damages for the frivolous appeal.  