Grabfelder v. Navra , 1 McGl. 63 ( 1881 )

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.