Perkins v. Jacobs

Marshall, J. "When the canse was reached for argument respondent’s counsel moved for an affirmance of the judgment under the rules, and for damages for delay caused by the appeal. Rule XYII provides that when a cause is reached for argument and is submitted or represented by the respondent by counsel, and not so submitted or represented by appellant, the judgment shall be affirmed without argument. That requires the judgment here to be affirmed. Sec. 2951, R. S. 1878, provides that the supreme court may, in its discretion, adjudge to the respondent in any appeal in any civil action, on affirmance, damages for his delay in addition to interest, not exceeding ten per cent, on the amount of the judgment affirmed, and may also, in its 'discretion, award to him double costs. It was intended thereby to deter parties from taking appeals merely for delay, and it has been often, but by no means too frequently, applied in cases of frivolous appeals taken in bad faith. Slocum v. Carlton, 2 Pin. 203; Ramsay v. Davis, 20 Wis. 31; Sweet v. Davis, 90 Wis. 409. This case seems to call for statutory punishment under that rule. From the commencement of the action in the lower court up to the time it was called for argument in this court, the defendant appears to have pursued a policy of delay for the mere purpose of delay. The fact that no bill of exceptions was settled, and no record made to present any question for review in this court, leaves no room for any theory other than that the appeal was solely to further delay the enforcement of a just judgment. Therefore — By the Court.— The judgment of the circuit court is affirmed with costs, and with ten per cent, damages to the plaintiff in addition to interest, as a penalty for the needless delay caused by the appeal.