Black v. Frank Paxton Lumber Company

On Motions for Rehearing.

Both appellant and appellee have filed motions for rehearing. Both motions are overruled, except as hereinafter indicated.

Subject to our ruling on its motion for rehearing appellee has filed a voluntary re-mittitur of $1,500, the amount of the attorney’s fee allowed in the judgment, has waived the allowance of any attorney’s fee, and asks that the judgment be reformed by removal of the said $1,500 as a portion of the amount for which appellee recovered judgment in the trial court; and that as so reformed the judgment be affirmed.

In our original opinion we overruled all of appellant’s points on appeal except Point No. 3. The latter related only to the allowance of the attorney’s fee of $1,500, which we found to be reversible error. The remittitur has removed the error. Appellee is entitled to have the judgment reformed and affirmed. Owen Development Co. v. Calvert, 157 Tex. 212, 302 S.W.2d 640; Hill v. Texas, New Mexico & Oklahoma Coaches, Inc., 153 Tex. 581, 272 S.W.2d 91; Rule 439, Vernon’s Texas R.C.P.

Our judgment reversing the judgment of the trial court and remanding this cause for another trial is set aside. The judgment is hereby reformed so as to allow appellee recovery for the amount of its debt in the sum of $10,638.33 with interest thereon at the rate of six per cent from November 1,. 1965. Costs will be divided equally between appellant and appellee.

The judgment as reformed is affirmed.

Affirmed.