On Application por Rehearing.
Wyly, J.It escaped the attention of the court, that in the answer praying for damages for frivolous appeal, the appellee joined in the appeal and prayed for an amendment of the judgment. Under the settled jurisprudence of this court no damages can be allowed where the appellee joins in the appeal, however frivolous it may be.
*477It is unnecessary to grant a rehearing on the ground that damages should not have been allowed, because the appellee in answer to the application for rehearing waives all demand for damages, and consents that that part of our judgment may be stricken out.
It is therefore ordered that that part of the judgment of this court awarding damages for frivolous appeal, be stricken out, and it is further ordered that the application for rehearing be denied.
Rehearing refused.