Victory Homestead Ass'n v. Hughes

WESTERFIELD, J. This is a foreclosure proceeding into which certain lienholders were impleaded by the Civil Sheriff on rule to distribute the proceeds. The trial court recognized the claim of Robt. P. Hyams Coal Company, Ltd., in the sum of $341.45. From the judgment on the rule to distribute the proceeds, an appeal was taken by the defendant in execution, Elliott Hughes, only to the extent that the judgment recognized the claim of Robert P. Hyams Coal Company, Ltd. The plaintiff in execution, Victory Homestead Association, did not appeal. The appellant, Hughes, did not oppose the claim of the Robert P. Hyams Coal Company, Ltd., in the trial court and in this court no appearance was made in his behalf and no brief filed or oral argument presented. We are, therefore, not advised as to the grounds upon which the judgment is attacked. The appellee, Robert P. Hyams Coal Company, Ltd., has answered the appeal and asked for the assessment of 10 per cent damages for frivolous appeal under Art. 907 of the Code of Practice. Under the circumstances the damages prayed for will be allowed. For the reasons assigned, the judgment appealed from is affirmed and the ■ appellant, Elliott Hughes, is condemned to pay to the appellee, Robert P. Hyams Coal Company, Ltd., a sum equal to 10 per cent of $341.45, the amount of the- judgment appealed from.