
    No. 3661
    Second Circuit
    S. G. DREYFUS CO. v. WILLIAMS
    (May 20, 1931. Opinion and Decree.)
    W. U. Richardson, of Arcadia, attorney for plaintiff, appellee.
    C. O. Brown, of Arcadia, attorney for defendant, appellant.
   McGREGOR, J.

This is a suit on open account. The answer of the defendant is simply a general denial • of the indebtedness without any special defense of any kind. In fact, the defense appears to be purely perfunctory. The case was set for trial on different occasions and for one reason or another was continued. Finally it was .definitely agreed by counsel on both sides that it be tried during the week in which it was actually tried. The exact date was inadvertently left off the minutes. Becausé of the uncertainty of the day on which it had been -agreed that it should be tried, on June 25, 1929, the plaintiff had the case set for trial for the following day, June 26, 1929. Counsel for defendant was not present in court on June 25, so when it was called for trial on June 26 he was taken by surprise and asked orally for another continuance, which was refused. The trial of the case was then proceeded with in the absence of the defendant, and judgment in favor qf the plaintiff was rendered, read and signed. The defendant has appealed and the plaintiff has answered the • appeal and asks for damages for frivolous appeal.

No motion for new trial was filed. If the defendant had a serious defense he should have set it up in his answer. Also, if this defense was genuine and he had filed a written motion for a new trial, the judge of the lower court would have granted it in order to give him an opportunity to present it. Counsel should have been present in court, particularly since it is conceded that the case was to be tried during that week and that the exact date had been overlooked by all the parties as well as by the court. Under these circumstances counsel should have been diligent to see that the date was determined on the first day of the court’s sitting that week. Under the circumstances the judgment appears correct and with the record in the shape that it is defendant could have no hope of reversing it. The appeal is therefore frivolous and' damages should be awarded.

For the reasons assigned it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is affirmed. It is further ordered that there be judgment in favor of the plaintiff against the 'defendant for 10 per cest of the amount of the judgment as damages for frivolous appeal, and that the defendant pay all the costs of both courts.  