delivered the opinion of the court.
The defendant appealed to this court, March 23, 1889, from a judgment rendered against him by the circuit, January 21, 1889. The defendant having failed to file a transcript of the record in this court, the plaintiff now produces such transcript and asks for an affirmance with ten per cent, damages for that cause alone.
In the case of State ex rel. Christy v. Ryan, not reported, but referred to in Estey v. Post, 76 Mo. 413, the supreme court decided that ten per cent, damages should be awarded in those cases only where the record is examined and the appeal found to be without merit. As upon this motion we are not called upon to examine into the merits of the appeal, we are not justified to award damages. The judgment is affirmed without damages.
All the judges concur.