
    SUMNER ET AL. vs. BERTOLI.
    Eastern Dist.
    
      June, 1837.
    APPEAL FROM THE rARISII COURT FOR- THE PARISH AND CITY OF NEW-ORLEANS.
    Where there is no defence, and where the appellant fails to bring up the evidence so as to enable the court to examine the case on the merits, and when the appeal is evidently taken for delay, the court will exercise its discretion, and not dismiss, but affipm the judgment, with costs, and ten per cent, damages.
    This suit was instituted to recover an account for merchandize and groceries sold and delivered to the defendant, amounting to three hundred and fifty dollars. The plaintiffs had final judgment without any answer filed or defence made. Prom this judgment the defendant appealed.
    
      Preaux, for the appellant,
    assigned for error, that by the record it did not appear that the witness, on whose testimony the judgment was rendered, had been sworn.
    
      Where there is no defence, and where the appellant fails to bring* up the evidence, so as to enable the court to examine the case on the merits, and when the appeal is evidently taken for delay, the court will exercise its discretion, and not dismiss, but affirm the judgment, with ten per cent, damages.
    
      2. The case should be remanded for a new trial, the evidence being insufficient to support the judgment.
    
      Randall, for the appellees,
    prayed that judgment be affirmed, with ten per cent, damages.
   Bullard, J.,

delivered the opinion of the court.

The appellant assigns as error, that it does not appear by the record that any witnesses were sworn according to law, in order to prove the claim of the plaintiffs.

It appears by the judgment itself, that the testimony of Henry Fisher satisfied the court below of the justice of the plaintiffs’ demand. His testimony could not have been before the court, if he had not been previously sworn to give evidence. The defendant made no defence to the action, and does not now pretend that the evidence offered was insufficient, nor has he enabled us to decide upon such a question, by bringing up with the record,-a statement of what the witness testified.

We are satisfied that the sole object in prosecuting this appeal was delay.

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