(concurring in part and dissenting in part) — I agree with the majority that Parks is entitled to interest, but I cannot agree that he is entitled to an attorney’s fee. In order to better understand the problem, I wish to set out the events in chronological order.
Parks and Watkins, as lessees of the Mon Wai lease, took possession July 1, 1949.
July 22, 1949, Parks sold his interest to Watkins, who assumed and agreed to pay, and in all particulars to perform, the rentals, terms, and conditions of the Mon Wai lease.
Mon Wai sued Parks and Watkins on the lease.
Parks answered, denying liability because of his assignment to Watkins, and prayed that, in the event judgment be entered against him, he have and recover judgment over and against Watkins in the full amount, together with an attorney’s fee of $150.
Watkins answered, alleging that the lease had terminated prior to the institution of the action.
The trial court entered judgment against Parks and Watkins, and each of them, in the amount of $1,215, plus interest and costs and an attorney’s fee of $250. The court also, in the same judgment, awarded judgment in the amount of $1,465 to Parks over and against Watkins, together with an attorney’s fee of $150. Watkins alone appealed.
*512While the appeal was pending, Mon Wai collected his judgment from Parks and satisfied the judgment against Parks and Watkins. Parks collected his judgment against Watkins.
We reversed the judgment.
Watkins then secured a writ of execution against Mon Wai and Parks for recovery of the money which he had paid Parks on his judgment over. He also, as the prevailing party, obtained a $250 attorney’s fee against Mon Wai.
In the original trial in superior court, Parks confined his activities to obtaining a judgment over against Watkins. He denied liability to Mon Wai solely because of his assignment to Watkins. The trial court held him liable because his name was on the lease. He did not appeal.
As a result of Watkins’ reversal of the judgment, Parks “got a free ride” when we held in the second appeal that “Parks is entitled to the benefit of Watkins’ appeal by reason of the necessity of the case.” The import of that decision was to relieve Parks from paying the original judgment, but it did not entitle him to an attorney’s fee as the “prevailing party.” He did not prevail on his defense to Mon Wai’s action. He was let in the back door after the litigation concerning the lease had ended.