
    No. 4751.
    State of Louisiana v. A. De Monasterio.
    Where there is no note of evidence in the record, this court is hound to presume that the judge a quo did his duty and had sufficient proof before him to justify his decree.
    The complaint that the judgment i* 82 25 in excess of the allegations of the petition is not ■well fouuded. It is claimed as due the tax collector; and under section 75 of act 42 of acts of 1871, it should be recovered against the defendant.
    There is error in the judgment of the court below in allowing the penalty of twenty-five per cent, from the fifteenth of December, 1871. It can only run from the fifteenth of December, 1872, because until then tbe defendant was not in default for tbe taxes of 1871.
    Appeal from the Superior District Court, parish of Orleans. Eaw-Jcins, J.
    
    
      A. P. Field, Attorney General, for plaintiff and appellee. Felloius (& Milts, Julien Miehel, for defendant and appellant.
   Wyly, J.

The defendant appeals from the judgment for taxes rendered against him for the year 1871, with a penalty of twenty-five per cent, from fifteenth December, 1871.

The plea of prematurity of the action having been overruled, the defendant answered to the merits without reserving the benefit of the exception, which must be regarded as abandoned. The numerous constitutional objections raised in this case were all disposed of in the case of the State v. Maginuis, 26 An., and several other decisions. We, thereiore, decline to reopen the discussion thereof. The defendant, however, contends that judgment was rendered against him without proof of the indebtedness. There being no note of evidence in the record, we are bound to presume that the judge did his duty and had sufficient proof before him to justify his decree.

The plaintiff complains that the judgment is |2 25 in excess of the allegations of the petition. Such is not the fact. It is claimed as due the tax collector; and under section 75 of act No. 42 of acts of 1871, it should be recovered against the defendant. There is error, however, in the judgment in allowing the penalty of twenty-five per cent, from fifteenth December, 1871. It can only run from the fifteen til December, 1872, because until then the defendant was not in default for the taxes of 1871.

It is therefore ordered that the judgment herein be amended by allowing the penalty of twenty-five per cent, only from fifteenth December, 1872, and as amended that it be affirmed,'appellee paying costs of appeal.  