It appearing in this application for writ of mandamus that the respondent, Honorable Frank M. Scarlett, has entered an order for a new trial on a ground which was not urged by the losing party in the litigation in the trial court, but on a ground that a careful study of the record clearly indicates warranted the grant of new trial, and the grant or denial of a petition for extraordinary writ of mandamus being addressed to the discretion of this court, we conclude that the application should and the same is hereby

Denied.