
    No. 78.
    A. L. Grabfelder & Co. v. M. L. Navra.
    1. Where no error of law or evidence is complained of, or suggested, or appears in the record, the appeal will he held frivolous, and damages inflicted.
    
      2. One who protends that a claim is canceled, or in any manner extinguished, must set up these defenses in his answer.
    :i. Failure to file an answer, or employ counsel, or to otherwise properly defend a suit, is no ground for a new trial. '
    
      Appeal from Third District Court. Monroe, Judge.
    
    
      Braughn, Buck <& Dinkelspeil for plaintiffs.
    
      A. B. Philips for defendant.
   Rogers, J.

The defendant having- been condemned by a judgment to pay to plaintiffs the sum of $555 56, with interest from June 2d, 1879, has taken this appeal. He was regularly cited to answer the petition in the lower court $ failed to answer, and, in default, the judgment was obtained. He applied for a new trial on the grounds :

“First. The judgment was contrary to the law and the evidence.
Second. That defendant was security on a bond which was canceled by plaintiff, and that plaintiff is in the act of obtaining judgment.
Third. That counsel has just been employed in this case, and could not file any answer.”

The new trial was properly refused. The error in law and evidence complained of is not suggested, and none appears in the record. If the claim upon which suit was based had been canceled, or in any manner extinguished, it should have been set up in a defense to the action. A failure to file an answer, and to properly defend a suit, or employ counsel in season, are no grounds for a new trial.

The appeal was evidently taken for delay, and is frivolous.

Judgment affirmed, with ten per cent damages for frivolous appeal.

Kehearing refused.  