delivered the opinion of the court.

The appellee is entitled to judgment against the appellant for five per cent damages, by virtue of sect. 1422 of the Code of *2441880, which provides for damages in cases in which none were allowed by the former law. The right of the appellee to judgment for damages on affirmance is independent of whether or not the judgment or decree appealed from is stayed by supersedeas. Damages follow affirmance as a penalty for appealing from a proper judgment or decree.

Motion denied.