Cantrelle v. Percy

delivered the opinion of the court.

This suit was brought against the indorser of a promissory note of hand. The defendant avowed his signature to the note, and pleaded certain matters in avoidance of the plaintiffs’ action, which are entirely unsupported by evidence. Judgment was rendered against him, and he appealed.

On the trial of the cause, plaintiffs introduced a witness to show that the signature of the maker of the note was erased through error. The testimo[521] ny was objected to by the defendant’s counsel, on the ground that there was no averment in the petition that said signature had been erased through error; hut the judge admitted the evidence, and the defendant took a hill of exceptions.

The parish judge did not err. The note is declared upon in the petition *315as if the signature of the maker had not been erased, and is annexed thereto; the object of the evidence was merely to explain the reason why the drawer’s signature appeared to have been erased, when the note was produced; and if any material circumstance existed so as to show that the erasure was to effect or destroy the liability of the indorser, it was his duty to avail himself of it in his answer.

On the whole, we think this appeal was taken solely for delay, and that the plaintiffs are entitled to the damages by them prayed for in their answer.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs, and with ten per cent, damages as for a frivolous appeal.