Opinion
No. 2591.
April 3, 1967.
APPEAL FROM FIRST CITY COURT FOR THE CITY OF NEW ORLEANS, NO. 98-737, SECTION "A", ARTHUR J. O'KEEFE, JR., J.
Nathan Greenberg and Gilbert P. Cohen, Gretna, for plaintiff-appellee.
John E. Adkins, Jr., New Orleans, for defendant-appellant.
Before McBRIDE, REGAN and HALL, JJ.
Plaintiff sued defendant on an open account for $117.58 plus interest and costs. According to the constable's return personal service of citation and petition was made on defendant. After the expiration of all legal delays and after due proceedings had a judgment by default was rendered in plaintiff's favor against defendant as prayed for.
Defendant appealed in forma pauperis. In his motion for appeal defendant alleged "that he was never personally served with aforesaid petition as alleged herein." Plaintiff timely answered the appeal and prayed for damages for frivolous appeal.
Since appellant made no appearance in this Court and filed no brief, no error in the judgment of the lower Court has been pointed out to us and that judgment may be affirmed on the presumption that it is correct. (See Bader Finance Co., Inc. v. Asset, La. App., 169 So.2d 220; F. A.B. Distributing Company, Inc. v. Marullo, La. App., 138 So.2d 656 and cases cited therein). We have examined the record which appellant has caused to be brought before us and find therein no error in law or in fact. We cannot take cognizance of the allegation in appellant's motion for appeal that he was not personally served with process. The constable's return is presumed to be correct and appellant cannot raise this defense for the first time on appeal. (See Lindner v. Cotonio, 175 La. 352, 143 So. 286; Howk v. Sulphur Motor Company, Inc., La. App., 155 So.2d 272; Buhler v. Villec, La. App., 117 So.2d 286).
In our opinion damages for frivolous appeal should be allowed in this case. We find no ground upon which the reversal of the judgment appealed from could be sought, and since appellant made no appearance in this Court, filed no brief, and has not in any manner communicated with the Court, we are convinced that the appeal was taken only for the purpose of delay. We therefore award damages for frivolous appeal in plaintiff's favor in the sum of $25.00.
For the foregoing reasons the judgment appealed from is amended by increasing the amount therein awarded plaintiff from $117.58 to the sum of $142.58 and as so amended and in all other respects the judgment appealed from is affirmed; costs of this appeal to be borne by defendant-appellant. (See LSA-C.C.P. Art. 5188).
Amended and affirmed.