
    Rice vs. Garnhart. (Second Case.)
    
      Frivolous Appeal — Double costs, etc.
    
    The power given to this court (Tay. Stats, 1644,1646, §§ 42 and 47), upon affirming a judgment appealed from, to impose damages upon the appellant exceeding seven per cent., and also double costs, can properly he exercised only where the appeal is clearly frivolous and taken to hinder and oppress the respondent. Morse v. Ins. Go., 30 Wis., 534. And upon the record in this appeal, this court cannot hold it to he of that character.
   Lyon, J.

Thi s action is similar to another between the same parties decided at the present term, except that the question of the validity of the patent is not here involved. The suit was brought to recover the first installment, due October 1, 1872, on the agreement of August 8, 1872, and for certain services and expenses. The only ground assigned for reversing the judgment is, that the defendant’s agreement to pay the installment sought to be recovered, is nudum paclum. This position was disposed of in the other case adversely to the defendant, and further discussion of it here is entirely unnecessary.

We are strongly urged to exercise the power given by statute (Tay. Stats., 1644 and 1646, §§ 42 and 47), to impose damages against the defendant exceeding seven per cent., and also double costs. We can not properly do so unless we can say that the appeal is clearly frivolous and was evidently taken to hinder or oppress the plaintiff. Morse v. Ins. Co., 30 Wis., 534. We do not think that we can say, from the record before us, that such is the character or purpose of this appeal.

By the Court. — Judgment affirmed.  