Opinion
OCTOBER TERM, 1881.
Where the record is such as to furnish a sufficient color of right to the dismissal of the writ of error to justify the court in entertaining with a motion to dismiss a motion to affirm under Rule 6, — Held, that although the grounds for dismissal be removed by a further showing, the motion to affirm will be granted, when it is manifest that the writ was sued out for delay only.
Mr. Joseph P. Hornor in support of the motion.
Mr. Thomas J. Durant, contra.
MOTION to dismiss a writ of error to the Circuit Court of the United States for the Eastern District of Louisiana, with which is united a motion to affirm under Rule 6, par. 5.
The affidavits which have been filed by the plaintiff in error, in opposition to these motions, are probably sufficient to establish the fact that the value of the matter in dispute exceeds $5,000. The motion to dismiss is, therefore, denied; but on looking into the record we are entirely satisfied the writ was taken for delay only. No assignment of errors has been annexed to or returned with the writ, as required by sect. 997 of the Revised Statutes; and every question presented by the bill of exceptions or suggested upon the argument appears to us so frivolous as to make it improper to keep the case here for any further consideration. There was on the record, as it stood when these motions were made, at least sufficient color of right to a dismissal to justify us in entertaining with it a motion to affirm in accordance with the provisions of Rule 6, par. 5.
Motion to affirm granted.