*113On Petition eor. a Rehearing.
Howard, C. J.The appellees ask for a rehearing of this case, contending that the complaint showed facts that entitled them to an order setting off the fees held by them against an equal amount of costs held by the appellants, and that the execution for costs should have been decreed satisfied to an amount equal to such fees.
We think that the complaint and the judgment of the trial court were sustained to that extent. The opinion states: “The question is * * * whether the fees owned by one party are in the same right as the costs owned by the other, and whether they may, therefore, be mutually set off against each other. * * * We think it clear that such fees and costs may be so set off, and that the court might rightfully decree the satisfaction of either fees or costs to the extent of such set-off. ’ ’
The complaint, however, proceeded upon the theory not only that such set-off of fees against costs might be had, but also that the fees so set off were equal to the costs, and, consequently, prayed “that the court adjudge and decree that said judgment is fully compensated, paid and satisfied, and that said execution is fully compensated and satisfied.”
That was the end and object aimed at by the complaint, and we must treat the complaint here according to the theory on which it was drawn, and upon which it was treated in the trial court. The fees not being equal to the judgment for costs and interest, there could be no cancellation of the judgment nor relinquishment of the levy. Appellees are entitled to the set-off, so far as it reaches, and the judgment and execution are good only for the difference between the fees held by appellees and the judgment for costs held by appellants.
Filed Mar. 16, 1894.Appellees strenuously argue that they are entitled to interest upon their fees. Interest, however, as already said, is a creature of the statute; and there is no statute authorizing interest upon fees, while the statute does provide that all judgments, including judgments for costs, shall bear interest.
This question, and some others ably discussed in the brief for a rehearing, have already been fully considered in the opinion.
The petition for a rehearing is overruled.