On Motion for Rehearing
Appellee has filed a motion for rehearing in which it points out that in our opinion we stated that appellant filed affidavits controverting the reasonableness of attorney’s fees demanded, whereas the affidavits in fact were filed by persons who are not parties to this appeal. All affidavits forming part of the record before the trial court must be considered in determining whether or not an issue of fact is raised requiring adjudication.
We have held that the action of the trial court in ordering severance was error, and have ordered the causes re-consolidated. While appellee may have taken a voluntary non-suit as to that part of its cause of action which was severed, this does not defeat the power of this Court to make effective its rulings. All proceedings which may have been had in the severed cause of action concerning attorney’s fees are ineffective, and the parties may be required by the trial court to file amended pleadings. After such pleadings are filed, the case will proceed in the normal fashion. American Indemnity Co. v. Martin, 126 Tex. 73, 84 S.W.2d 697.
On reconsideration we have determined that the judgment recovered by Standard Concrete Pipe Sales Company against Mc-Elwrath Bros., Inc. and Geo. Kennedy & Son, who did not appeal, should be affirmed. We do not see that the rights of National Surety Corporation will be prejudiced by this action. The judgment rendered in favor of National Surety Corporation on its cross-action for indemnity is reversed since there is now no judgment against National Surety Corporation for the payment of which it could be indemnified. The cause of action for indemnity including the right to indemnity for any attorney’s fee it may be adjudged to pay, is preserved to National Surety Corporation just as if the erroneous judgment had never been entered.
Appellee’s motion for rehearing is granted in part and in part overruled.