
    KIRBY v. HARRINGTON.
    No. 12,011;
    February 15, 1887.
    13 Pac. 218.
    Appeal—Damages on Dismissal.—On the dismissal of an appeal, damages will not be awarded in the respondent’s favor on his ex parte affidavit that he has been informed and believes the appeal to be without merit.
    APPEAL from Superior Court, San Francisco.
    Mortgage foreclosure.
    A motion to dismiss the appeal was made upon a certificate, in the form required by rule 4 of the court. It was not contended that the certificate was insufficient. The only opposition of appellant wan to the imposition of damages. Respondent’s (plaintiff’s) affidavit was to the effect that the action was brought to foreclose a mortgage; that defendant admitted a balance due, for which judgment was entered; that plaintiff was about to enforce the judgment by proper process, when defendant took an appeal, December 20, 1886, and more than forty days elapsed since appeal was perfected ; that plaintiff was put to the expense of extra counsel fees; ‘ ‘ and affiant is informed, and on such information avers, that said appeal is wholly without merit, and taken solely for the purpose of delay.”- Prayer for damages.
    Matthew I. Sullivan for appellant; John J. Coffey for respondent.
   By the COURT.

The certificate of the clerk of the superior court is in due form, and the appeal should be dismissed. But the application of respondent for damages on appeal must be denied. We are not authorized to decide an appeal to be frivolous on the ex parte affidavit of respondent that he has been informed and believes it to be without merit: Vaughn v. Werley, 62 Cal. 181.

Appeal dismissed.  