
    No. 10,452
    Orleans
    THE ITEM CO. v. COMMUNITY BURIAL SERVICE CORPORATION
    (March 26, 1928. Opinion and Decree.)
    (April 9, 1928. Rehearing Refused.)
    
      (Syllabus 5y the Court)
    
    1. Louisiana Digest — Costs and Fees — Par. 62; Appeal — Par, 512.
    When the judgment carries eight per cent interest and ten per cent attorney’s fees no greater damages will be allowed for frivolous appeal.
    Appeal from Civil District Court. Hon. Mark M. Boatner, Judge.
    Action by the Item Co., Ltd., against Community Burial Service.
    There was judgment for plaintiff and defendant appealed.
    Judgment affirmed.
    Edward P. Deutsch, of New Orleans, attorney for plaintiff, appellee.
    Van Burén Harris, of New Orleans, attorney for defendant, appellant.
   CLAIBORNE, J.

This is a suit upon a promissory note for $644.40, subject to a credit of $144.40, leaving a balance due of $500, After the filing of the suit defendant .paid on account $300.

The defendant filed no answer, and there was judgment by default against it for $500 with eight per cent per annum interest from September 20, 1925, till paid and with ten per cent attorney’s fees, subject to a credit of $300.

From that judgment the defendant has appealed.

In this court the plaintiff and appellee has prayed for damages for frivolous appeal in accordance with Article C. P. 907.

The defendant and appellant has ndt appeared in this court by brief or by argument.

When the judgment carries five per cent interest only five per cent damages will be allowed because eight per cent is the highest rate of interest allowed.

Massman vs. Lynch, No. 7454 Orleans Appeal; Mercantile Adjustment Agency vs. Palmisano, 2 La. App. 443; Citizens Discount & Investment Co. vs. Brennan, 5 La. App. 402, and authorities there quoted.

When the judgment allows eight per cent interest damages for frivolous appeal will not be allowed. Osborne & Talle vs. Powell & Co., 17 La. Ann. 169.

C. C. 1935: “The damages due for delay-in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.”

C. C. 2924: “Interest is legal or judicial or conventional. The former is fixed at five per cent and the latter cannot exceed eight per cent.”  