Kirkpatrick v. Great American Ins.

On Motion for Rehearing.

Under their fifteenth assignment, appellants contend the trial court erroneously held that the costs incurred, by reason of J. G. Kirkpatrick and the Itasca National Bank seeking to establish their right to this fund in the county court, should be taxed against the said J. G. Kirkpatrick and the Itasca National Bank. The appellants were denied the recovery of any amount in the justice court, and were likewise denied the recovery of any amount in the county court. It is' true in the county court the insurance company, having filed this as an interpleader suit, was allowed an attorney’s fee of $25 to be paid out of the fund in controversy, which was denied said company by the judgment in the justice court. So the judgment in the county court, as between appellee J. B. Mc-Cauley and the insurance company, being less favorable to McCauley than the justice judgment, as between said parties, the insurance company would be entitled to recover of J. B. McCauley all court costs, if any were incurred in the county court in adjudicating this question of the interpleader’s attorney’s fees. But this could have no effect on the question of court costs in the county court, as between appellants and appellee J. B. Mc-Cauley, in adjudicating their rights to recover said fund. Only the court costs in the county court incurred by reason of appellants seeking to establish their right to the fund in controversy are adjudged against said appellants. This was correct. Neither do we think the rules governing the disposition of court costs in a litigation to determine the ownership of a fund in the registry of the court are in any way different from the rules applicable in other cases. This assignment is overruled.

Under appellants’ sixteenth assignment, they contend, in effect, that the trial court erred in charging them with 6 per cent, interest on the fund in the registry of the court from the date the judgment was rendered in the justicé court. The fund in controversy has never been in the possession of appellants, or either of them, but has been, since the institution of this suit, and still is, in the registry of the court. The judgment in favor of appellee McCauley is for the $209 less certain deductions, in the registry of the court. The judgment against appellants was not for any sum of money, but was, in effect, that they take nothing. The general rule is, that interest is of purely statutory origin and not;, the creature of the common law, and that interest should be refused except in such cases as come within the terms of the statutes. Such is the rule in this state. Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666; McDaniel v. National Steam Laundry Co., 112 Tex. 54, 244 S. W. 135; Walker v. Alexander (Tex. Civ. App.) 212 S. W. 713; 33 C. J. p. 183. There are three articles of our statutes providing for the recovery of interest, to wit: Articles 5070, 5071, and 5072 of the Revised Statutes 1925. Clearly, under no one of said articles were *946appellants, or eitlier of them liable for interest on the fund in controversy.

We sustain this assignment and in part grant this motion and ref orm the judgment of the trial court as follows: We hereby render judgment in favor of appellee J. B. McCauley for the $200 in the registry of the court, less $25 attorney’s fees allowed by the court for filing said suit of interpleader, and we adjudge all costs of this appeal against appellee J. B. McCauley. We adjudge all -costs incurred in the justice court and county court against appellants J. G. Kirkpatrick and the Itasca National Bank. And the judgment as here reformed is hereby affirmed.