Weaver v. Kearny

■Ok a Petition fob a Rehearing.

Jones, J.

This appeal is taken for delay; but as no answer has been filed by the appellee, asking for damages for frivolous appeal, we simply affirm the judgment, with costs.

HowEnn, J.

While an application for a rehearing in this cause was under consideration, a judgment appears to have been rendered on the merits as on a rehearing. It is evident that this second judgment is irregular and without legal effect, as the rehearing should have been first disposed of and the parties allowed an opportunity to furnish arguments in the event of a rehearing being granted. We must therefore consider the ease still before us as on the application of plaintiff for a rehearing of the judgment rendered on 18th December, 1865.

He complains that the judgment is based on a misapprehension of the' facts as to the usurious interest embraced in the note for $784 98, and which was declared forfeited. In his answer to the second interrogatory he says: “The balance after deducting the due bill” (which was for' $228 05) “was for interest at 3 per cent, per month” (on other obligations). Under our interpretation of the acts of 1856 and 1860, this is not a valid consideration.

It is therefore ordered that the rehearing be refused, and the. judgment rendered by us on 18th December, 1865, remain undisturbed as the final judgment in this case.