Arnold v. Atkins

124 So. 640, 11 La. App. 646, 1929 La. App. LEXIS 296

• Court: Louisiana Court of Appeal
• Decided: November 18, 1929
• Docket: No. 3527
• Status: Published

Opinion

ODOM, J.

Defendants appealed suspensively and devolutively from a judgment rendered against them by default. The record contains no note of evidence, but the judgment recites that “by reason of the preliminary default heretofore taken and entered not having been set aside, and by further reason of the law and the evidence being in favor thereof, the said preliminary default is hereby confirmed, etc.”

Presumably, the judge of the lower court heard testimony sufficient to warrant the judgment.

When the case was set down to be heard in this court, defendants did not appear by counsel nor has counsel filed any brief. The judgment appealed from must, therefore, be affirmed.

Plaintiff has answered the appeal and asked that the judgment be amended so as to 'allow damages for frivolous appeal. We see no reason why damages should not be allowed, under article 907 of the Code of Practice, as the appeal was evidently frivolous.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to allow five per cent damages for frivolous appeal and, as thus amended, it is affirmed, with costs in both courts.