
    No. 10,405
    Orleans
    THE DAILY STATES PUB. CO. v. WHITE
    (October 15, 1928. Opinion and Decree.)
    Dart and Dart, and Robert Ewing, Jr., of New Orleans, attorneys for plaintiff, appellee.
    Joseph H. Brewer, and W. A. Greene, of New Orleans, attorneys for defendant, appellant.
   WESTERFIELD, J.

The basis of this appeal is the alleged error of the trial Judge in refusing a new trial.

A new trial was asked for upon the ground that counsel erroneously entered a notice of trial in his diary and, upon the further ground, that at the time of the trial, counsel was suffering from a severe cold which had involved his bronchial tubes. It is not claimed that any appearance or request for continuance was made in counsel’s behalf nor any written communication addressed to the Court.

The suit is on open account, which according to the evidence, was admitted to be due by defendant.

The refusal of a new trial under the circumstances, was well within the discretion of the trial Judge, with which we will not interfere. La. Digest, Vol. 5, page 534, Verbo New Trial.

Damages are asked for frivolous aippeal which we think should be allowed. The judgment appealed from will be affirmed with ten per cent damages for frivolous appeal.  