delivered the opinion of the court.
In this suit, which is on a note of hand, the defendant propounded interrogatories to plaintiff to obtain the confession that he was not the owner of the note, but held it, and put it in suit for the payee, against whom he averred that he had good and equitable grounds of defence. The plaintiff having failed to answer, the defendant was let into the proof of the facts set up in defence, but be offered no evidence whatever to sustain them. Verdict was given for plaintiff, and defendant, after the ordinary motion for a new trial, appealed, but neglected to bring up the record.
The dilatory proceedings resorted to in the court below, and the absence of any testimony whatever, show, that no serious defence could be intended, and that this appeal is frivolous. The plaintiff must, therefore, have the damages he prays for.
It is ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs, and ten per cent, damages.