#### Shafer v. Second Nat. Bank of New Mexico.

(Supreme Court of New Mexico.

February 2, 1887.)

Appeal — Failure to File Transcript — Damages—Comp. Laws N. M. Qty 2189, 2191._

Under section 2189, Comp. Laws N. M., requiring an appellant to file a transcript of the record on appeal with the clerk of the supreme court at least 10 days before the first day of the term to which the appeal is returnable, or the appellee may produce such transcript in court, and, if it appears thereby that an appeal has been allowed, the judgment will be affirmed unless good cause can be shown to the contrary; and section 2191, providing that, on the affirmance of any judgment, the supreme court may award damages to the appellee in any sum not exceeding 10 per cent, of the amount of the judgment, — a judgment in an action on contract against the defendant, who appeals therefrom, will be affirmed, with damages, when ho fails to file the transcript as required, and the appellee produces it in court, and it appears therefrom that the appellant had no defense, and that the appeal was taken' for delay.

Appeal from district court, county of Santa Be.

Francis Downs, for appellee. Wm. Breeden, for appellant.

Per Curiam.

Plaintiff commenced an action of debt in the court below upon an express contract for interest upon deposits made with defendant, amounting to the sum of $917.48. Defendant pleaded the general issue. There was a trial by jury and verdict and judgment for plaintiff for the full amount of his claim. Prom this judgment defendant appealed, but has failed to perfect its appeal by filing in this court a, transcript of the record and proceedings in the cause. Plaintiff now produces a transcript of the record, and moves to affirm the judgment, and for 10 per cent, damages, as provided by sections 2189 and 2191, Comp. Laws.1 An examination of the record now before us fails to disclose any defense to the action. We are therefore bound to presume that the judgment was fully justified by the evidence, and that the appeal is without merit, but was taken solely for delay. The statute is intended to discourage vexatious and groundless appeals. We therefore affirm the judgment, with 6 per cent, damages.

1

Sec. 2189. " * - The appellant shall file in the office of the clerk of the supreme court, at least ten days before the first day of such court to which the appeal is returnable, a perfect transcript of the record of the proceedings in the case. If he fail to do so, the appellee may produce in court such transcript; and, if it appear thereby that an appeal has been allowed in the cause, the court shall affirm the judgment, unless good cause can be shown to the contrary. * * *

Sec. 2191. And, upon the affirmation of any judgment or decision, the supreme court may award to the appellee, or defendant in error, such damages, not exceeding 10 per cent, on the amount of the judgment complained of, as may be just.