The opinion
On Motion for Rehearing.
The evidence showed that appellee employed his counsel of record to prosecute this suit for him and agreed to pay for their services 32½ per cent, of his recovery, and that the settlement with appellant occurred after such employment, and while those counsel were performing services thereunder. The proof further shows that the attorneys so employed have never received any part of $2,000 of the amount paid to appellee by appellant for said purported settlement, and that those attorneys are entitled to be compensated for their 32½ per’cent, thereof, to wit, $650, out of the amount awarded to appellee by the judgment of this court on original hearing. Accordingly the motion of appellee for a reformation of our former judgment in such manner as to allow his counsel such additional compensation is granted, and the judgment of this-court is so reformed as to read as follows : '
In lieu of the judgment of the trial court, judgment is here rendered as of date September 29, 1927, the date of the judgment in the trial court, as follows: That the appellee, O. E. Harrington, and his attorneys, W. L. Scott and Davenport & Orain, do have and recover of and fro-m appellant, New Amsterdam Casualty Company, as principal, and the United States Fidelity & Guaranty Company, surety on the appeal bond for appellant herein, the sum of $7,807.08, the amount adjudged below, less $2,200 received by the appellee, O. F. Harrington, in the purported settlement, with interest thereon from March 3, 1927, to September 27, 1927, to wit, $68, making a total credit of $2,268, leaving a balance of $5,539.08, with interest on said amount of $5,539.08, at the rate of 6 per cent, per annum from the 27th day of September, 1927, and, as thus reformed, the judgment of the trial court is hereby affirmed. It is further ordered that the judgment be apportioned as follows: $3,088.88 of the principal to appellee, C. F. Hárrington, and the balance of the principal to wit, $2,450.20, to W. L. Scott and Davenport & Crain, attorneys. It is further ordered that appellee, C. F. Barrington, pay all costs incurred by reason of this appeal, for which let execution issue, and that this decision be certified below for observance.
With this reformation of our former judgment, appellee’s motion for rehearing is overruled. And in this connection we will add that appellee is in no position to claim interest on the amount allowed him prior to the date of the trial, since no assignment of error was filed by him presenting that claim.