In view of the peculiar situation that exists in this case, we deem it necessary to a final disposition thereof that a supplemental opinion be filed.
Frank S. Lohr and F.W. Lohr appealed separately from the original judgment in this case. As to the original opinion *Page 745 filed, appellees filed a petition for rehearing, and Frank S. Lohr and F.W. Lohr, appellants, also filed a petition for rehearing, each party raising different questions, in effect amounting to separate petitions. When the matter was before this court on these petitions for rehearing, an entry was made that the petitions for rehearing of both parties were overruled. It is apparent, therefore, that one of the petitions for rehearing would not be covered by the ruling made.
Appellants filed motion for judgment in this court, which is resisted by appellees, showing that the application of the opinion, as written, to the fact situation in the case leaves some questions in doubt. That the matter may be clarified, the following supplement is made to the original opinion:
The record shows that, when the assignee took possession of this property, there were certain outstanding book accounts and other evidence of indebtedness that passed into the hands of the assignee which were not covered by this mortgage. There is also a further showing that the assignee continued the business and purchased new goods which were added to the stock, some of which also passed into the hands of the assignee. Likewise, these new goods purchased by the assignee would not be subject to the mortgage. The chattel mortgage covered an undivided one-half interest in the undertaking stock and equipment and the furniture stock, and also an undivided one half of all additions made thereto from time to time. The lien and rights of the mortgagee, therefore, were limited to the above description in the chattel mortgage: to wit, one half of the undertaking and furniture stock and equipment that went into the hands of the assignee on his appointment.
We held in the original opinion that the attorney for mortgagee was entitled to attorney's fees. These however, must be taken out of the property covered by the chattel mortgage, and not out of the other undivided one-half interest.
In the final distribution of the proceeds of this estate in the hands of the assignee, in determining the amount due the chattel mortgagee, the proceeds are not to be reduced by the compensation allowed the assignee, but are to bear their share of the usual cost of administration. 5 Corpus Juris 1256, Section 412.
F.W. Lohr shall pay one fifth of the taxed costs in this court, and the balance shall be taxed to appellees; but in the *Page 746 distribution to be made by the lower court, no part of the costs taxed in this court against appellees is chargeable against the holder of the chattel mortgage. As we have not before us the data from which to make these various calculations, the case will be remanded to the district court for further proceedings in accordance herewith. The original opinion will be modified accordingly.
Motion for judgment in this court is overruled. All petitions for rehearing overruled.