
    No. 6418.
    ZIMMERN BROTHERS vs. ROSENBURG-OLDSTEIN COMPANY, ET ALS.
    Syllabus.
    The dilatory exception of prematurity pleaded for the first time in an answer filed after a judgment by default comes -too late.
    Appeal from the Civil District ’Court, Parish of Orleans, Division “B,” No. 111,604. Honorable G- H. Theard, Judge.
    B. Y. Wolf, for plaintiff and appellee.
    E. M. Cahn, for defendant and appellant.
    J. H. Brewer, attorney.
   His Honor, EMILE GODCHAUX,

rendered the opinion and decree of the Court, as follows:

The sole defense is that the plaintiff’s claim was not due at the date of the institution of the suit. This defense, in reality a plea of prematurity, the trial Court, in accord with the firmly established jurisprudence, properly declined to consider, since it was pleaded for the first time in the answer filed after a judgment by default.

C. P., 333.

Pecquet vs. Pecquet’s Executors, 17 An., 232, and authorities cited.

Mortee vs. Edwards, 20 A., 236.

Levert vs. Berthelot, 127 La., 1015.

Moreover, in this Court the defendants have not sought to justify or maintain their appeal by brief or by argument, and it is clear that the appeal is frivolous and is taken solely for the purpose of delay. Damages will therefore be .awarded in accordance with appellee’s demand in this Court.

Opinion and decree, June 30, 1915.

Rehearing refused, July 22, 1915.

C. P., 907.

It is accordingly ordered that the judgment be amended by adding 10% on the amount thereof as damages for á frivolous appeal and that as thus amended it be affirmed at the cost of appellants.

Amended and affirmed.  