In an appeal from a federal district court verdict and judgment in a wrongful death action, appellees requested that damages be assessed against the appellant because the appeal to the court of appeals was sued out merely for delay. The appellees’ request was made under a rule of court which is common to all 11 circuit courts of appeals and is found in the rules of the United States Supreme Court and many state appellate court rules.

The Federal Judiciary Act of 17896 contained a provision penalizing appeals taken only for purposes of delay, and the uniform rules for circuit courts of appeal adopted in 1891 also contained a section providing for assessment of damages against the appellant in cases of appeals sued out only to delay proceedings on the judgment in the lower court.

In the instant case, a wrongful death action, the court held that the appeal was not sued out merely for purposes of delay although the court did find that there was little question but what the verdict and the judgment below should be affirmed. The court expressed a reluctance to award damages for delay largely because of the “cogently put and earnestly argued brief of the appellant.”