Kelly v. Elliott

Plaintiff sued upon an open account of sales of dairy products to defendant during the year 1939 and the early part of 1940. Defendant interposed exceptions of no cause of action and want of capacity of plaintiff to institute and prosecute suit. These exceptions were overruled. Answer was then filed. The exceptions were again urged. Liability for payment of the account is denied. Defendant affirmatively averred that while the account once existed it had been novated by the execution by him of a series of promissory notes. After trial on the merits, judgment for plaintiff was rendered for the amount sued for from which defendant appealed.

In this court appellant has made no appearance; no brief has been filed by him or on his behalf. This attitude warrants us in assuming that the appeal has been abandoned. In such circumstances it is the rule of this court to dismiss an appeal as having been abandoned. Appeal in this case was obviously taken for delay but we are not asked to inflict the statutory penalty authorized in such cases. However, we have read the record and find that the judgment is well supported by the evidence adduced and for this reason we have decided to affirm the judgment appealed from rather than dismiss the appeal; and for these reasons, said judgment is hereby affirmed with court costs.