
    [No. 463.
    Decided January 25, 1892.]
    I. N. Walter, D. N. Walter, Morris Walter and Herman Walter, Respondents, v. F. G. Maresch, Appellant.
    
    APPEAL — FAILURE TO FILE TRANSCRIPT — DAMAGES.
    Where the judgment of the court below is affirmed on motion of respondent ior the reason that appellant has failed to file a transcript within the prescribed time after giving notice of appeal, there can be no judgment for damages against appellant on the ground that the appeal was taken merely for delay, as that fact can be ascertained only from the record.
    
      Appeal from Superior Court, Whatcom County.
    
    Motion, by respondent to affirm the judgment of the superior court.
    
      Weisenberger & Crites, for respondents.
   The opinion of the court was delivered by

Anders, O. J.

The respondents having heretofore filed in this court a certified copy of the judgmentappealed from, ■ and of the notice of appeal and service thereof, together with a copy of the supersedeas bond, now, after due notice to appellant, move the court to affirm the judgment of the court below, and for judgment in this court against appellant and the surety on his appeal bond, and for damages, for the reason that appellant has failed to file a transcript within the time prescribed by law and the rules of this court.

Damages are asked on the ground that the appeal was taken for delay only; but, as we have no transcript before us, we have nothing by which to determine whether the appeal was taken for that purpose or not. That is a fact to be ascertained by the record. General Statutes, § 1431; Vaughn v. Werley, 62 Cal. 181. The motion for damages will therefore be denied.

The judgment of the court below is affirmed, and judgment will be entered in this court against appellant and! the sureties on his supersedeas bond for the amount of said judgment and costs, and for costs in this court.

Scott, Dunbar, Hoyt and Stiles, JJ., concur.  