
    U. S. Fidelity & Guaranty Co., etc., Plaintiff and Appellee, v. Ernesto F. Schluter, etc., Defendant and Appellant.
    No. 6193.
    Argued November 21, 1932.
    Decided November 25, 1932.
    
      J. Vendrell for appellant. Ghdllermo Estrella for appellee.
   Mr. Justice Aldrey

delivered the opinion of the Court.

The plaintiff in this case asks us to dismiss as being frivolous the two appeals taken by the defendant — one from a judgment directing to pay a certain sum of money, with' costs but excluding attorney’s fees, and another from a subsequent judgment modifying the previous one so as to include such fees.

The complaint alleges that the defendant applied to the plaintiff for the execution of a bond in the sum of $2,500 to secure the payment of income taxes levied by the People of Puerto Rico, defendant promising to reimburse to the plaintiff the amount of any tax plus expenses, disbursements including costs, and attorney’s fees which the latter might pay for him in the event that the defendant failed to pay such tax; that relying on said application, the plaintiff executed the said bond jointly with the defendant securing the payment of said income tax by the defendant on or before April 16, 1932; that at the expiration of this term and of an extension granted by the Treasurer of Puerto Rico up to June 15, 1932, for the defendant to make payment of said tax -which on that day amounted to $1,938.44, demand was made upon the plaintiff for the payment of that amount plus $34.24 as interest thereon at the rate of one per cent per month and the aggregate sum of $1,972.68, claimed by the plaintiff herein was paid by the latter without the said sum having been reimbursed either in whole or in part by the defendant or any other person, notwithstanding the demands made upon the defendant therefor.

The defendant entered no plea and after a trial was had, a judgment was rendered which was subsequently modified.

Inasmuch as the complaint clearly sets up an action for the recovery of the sum paid by the plaintiff on behalf of the defendant, which sum the defendant bound himself to return to the plaintiff, together with costs including attorney’s fees, and as the defendant entered no plea and even failed to appear at the trial, we are of opinion that the appeals herein are frivolous and should be dismissed.  