The only complaint of the appellant is that a judgment by default was confirmed against him when an answer had been filed.

*311There appears a general denial in the record, purporting to have been filed upon the same day that the judgment by default was made final.

But it does not appear that the defendant filed it in open court, or procured the usual order to have the judgment by default set aside.

The presumption, therefore, is that the court did its duty, and that the defendant filed his answer after the judgment by default had been confirmed..

The prayer for damages, we think, should be allowed.

It is, therefore, ordered and decreed, that the judgment appealed from be affirmed, with costs, and forty dollars damages as for a frivolous appeal.