On Rehearing.
ST. PAUL, J.The court after carefully reviewing the record and having heard additional argument upon ail questions involved herein, is satisfied as to the corectness of its former conclusions and the judgment heretofore rendered, insofar as the main issues of the principal demand and of the intervention are concerned.
But reconsideration of the question of liability for costs incurred has convinced the court that' there is error in its previous decree taxing these costs partly against the defendant, Ferdinand Gumbel and Company, and that a case is presented where the court, under the discretion vested in it by Act 229 of 1910, should have imposed liability therefor upon plaintiff.
The plaintiff’s recovery of the balance of $229.62 in the hands of. Ferdinand Gumbel and Company can be sustained, not because, as originally alleged, he was a creditor and entitled to a privilege upon this fund; but simply by reason of a right to this fund, which pending the litigation, he acquired through Perkins’ abandonment of his interest therein — 'and even this recovery might have been properly denied on appeal had not Ferdinand Gumbel and Company, by its failure to timely file its answer to *377the appeal, baned further inquiry into that subject in this court.
Ferdinand Gumbel and Company had at all times admitted that the sum of $229.62 was due to Perkins; and the recovery of this amount by plaintiff, as assignee of Perkins, is in itself a vindication of the position and defense which Ferdinand Gumbel and Company had assumed with reference thereto. ' Consequently it is manifestly just and equitable that the latter should be freed from all liability for costs as to this item.
See Lagerquiste vs. Standard Loan Office, No. 5295 of our docket, recently decided and to be reported in the 8th Court of Appeal.
As to the costs incurred upon the intervention relative to the cotton on hand, Ferdinand Gumbel and Company, at the outset in its sworn answers to the main demand, made full disclosure concerning the nature of its possession and its knowledge of the ownership of this cotton; and the facts thus disclosed were finally adopted by this court as forming the true basis upon which the respective rights of the parties should be tested and adjudicated. Gumbel and Company occupied the position of stakeholder and as such it impartially put at issue the right of either contestant to recover the property in its hands. The real controversy as to this cotton was confined to plaintiff and the intervenor; and as the latter was successful it is proper that the former should bear the burden of the costs incurred.
Our former decree will be amended only insofar as the taxation of costs is concerned and to that end the decree will now be recast as follows:
It is, therefore, ordered that, insofar as the judgment herein appealed from rejects the demand of the intervenor herein, the same be annulled, avoided and reversed, and it is now ordered that there be judgment in favor of the in*378tervenor, William E. McG-raw, decreeing him the owner of the eleven bales of cotton herein claimed by him, and. marked P Nos. 29 to 39, and directing that same be released from seizure herein and delivered to said intervenor free from any lien or privilege in favor of plaintiff.
May 15, 1911.It is further ordered, that the costs of both appeals, as well as all costs of the lower court, both on the main demand and the intervention be paid by the plaintiff, M. H. Rothschild.'
It is further ordered, that in all other respects the judgment herein appealed from be affirmed.