
    McGUIRE, Respondent, v. SWEENEY, Appellant.
    [Submitted February 17, 1896.
    Decided February 24, 1896.]
    Frivolous Appeal — Record—Docket fee. — Where there is nothing in the record on appeal to show upon what the district court acted in making an order refusing to tax a $25 docket fee upon retaxing costs, and the case is submitted without argument, the order will he affirmed and a penalty added for a frivolous appeal.
    
      Appeal from First Judicial District, Lewis and Glarhe County.
    
    Defendant’s motion to tax a docket fee on an order reducing costs denied by Blake, J.
    Affirmed.
    C. W. Fleischer and F. N. & S. H. McIntire, for Appellant.
    
      F. F. Stranahan, for Respondent.
   Per Curiam.

This action was commenced in a justice’s court, and judgment rendered for plaintiff. On appeal to the district court, judgment was again rendered for the plaintiff. The subject of the action is a $50 horse. Defendant appeals from the judgment. He asks the court to review the order made by the district court refusing to tax in his favor a docket fee of $25 upon retaxing and reducing the costs. This is the only point which it is pretended is before this court. Counsel did not even argue this proposition, and stated that he would leave it for the consideration of the court.

There is nothing whatever in the record to show upon what the court acted. The $25 docket fee provided for in section 509, Code of Civil Procedure, 1887, may be as against either party, or an officer, such as a sheriff, clerk, or referee. (First National Bank of Helena v. Neill, 13 Mont. 382.) The record in this case does not disclose the items of the costs which were taxed or retaxed. Appellant has left us wholly in the dark as to the action of the district court. This appeal is wholly frivolous.

The judgment will therefore be affirmed, and a penalty of $25 added to the judgment, for the purpose of discouraging frivolous appeals.

Affirmed.  