concurring in part and dissenting in part.
I concur in the majority opinion affirming the grant of the appellee’s motion for summary judgment. I respectfully dissent from the denial of the appellee’s request for damages for a frivolous appeal.
The litigation before us is a simple suit on a note. The sole defense offered by the defendant is lack of consideration. The defendant did not present any evidence in opposition to the plaintiff’s motion for summary judgment. In support of the motion for summary judgment, the plaintiff conclusively proved that she took the note for value as security for her antecedent claim against the defendant for alimony pursuant to a judgment and decree of divorce entered in the Superior Court of Wayne County in litigation between the parties. No appeal was made from that judgment and no attack has been made thereon. The thrust of the defendant’s brief is to attack the judgment rendered in the divorce action. This does not show lack of consideration (the only defense contained in the defendant’s answer) to the present action.
There was no valid reason to anticipate reversal of *225the judgment below. The appeal was brought on issues which could have been raised only in the prior divorce suit between the parties. Pinkerton & Laws Co. v. Robert & Co., 129 Ga. App. 881, 885 (6) (201 SE2d 654) and cits. I must therefore conclude that the appeal was brought for delay purposes only and would assess the ten percent penalty authorized by Code § 6-1801.
I am authorized to state that Bell, C. J., Hall, P. J., and Evans, J., concur in this dissent.