
    Hall v. Fisher et al.
    
    Where the question of law involved on appeal was unsettled prior thereto, damages for delay will not he assessed against appellant on affirmance.
    (Opinion filed April 2, 1901.)
    Appeal from circuit court, Jerauld county, Hon. Frank B. Smith, Judge.
    Action by William H. Hall against Fred S. Fisher and others. From a judgment in favor of plaintiff, defendant Northwestern Loan and Banking Company, appeals.
    Affirmed.
    The facts are stated in the opinion.
    
      
      J. H.. Williams on and Bailey & Voorhees, for appellant.
    
      Pyle & Taylor, for respondent.
   Corson, J.

This is an action by the plaintiff to recover upon a guaranty made by the defendant loan company, annexed to a certain bond executed by the defendants, Fred S. and Elvia J. Fisher. Judgment was rendered in favor of the plaintiff, holding the defendant loan company liable upon its guaranty, and it appeals.

The guaranty in the case at bar was substantially the same as the guaranty in the case of Hanna v. Stroud (decided at the April, 1900, term of this court), reported in 13 S. D. 352, 83 N. W. 365, and in which this court affirmed the decision of the circuit court. The questions involved in this case being substantially the same as those involved in the former case referred to, must be ruled by the decision in that case. The respondent, in his brief, asks that the judgment of the court below be affirmed, with 10 per cent damages for the delay, but in view of the fact that this court had made no decision upon a similar guaranty, and that the question of law involved in these cases was unsettled prior to these appeals, we cannot say in this case that the appeal was taken for delay, and must, therefore, decline to award damages in favor of the plaintiff. The judgment of the circuit court is affirmed.  