On Motion For Rehearing.
Appellant, Slaughter, moves the court to set aside that part of our decision granting the cross-assignment of J. G. Morton, and rendering judgment against movant for 10 per cent, attorney’s fees. The ground of the motion is that Morton did not file a motion for new trial, did not appeal from the judgment, and Williams did not move for a new trial nor join in the appeal; that Morton in no manner called the attention of the trial court to the alleged error. As shown in the original opinion, Williams filed this suit, complaining of Morton, his attorney Stalcup, Farwell, the trustee named in the deed of trust, and the O. C. Slaughter Company, to restrain the sale under a deed of trust of certain real estate described in the instrument. Morton, by cross-action, made Mrs. Anna Williams, W. B. Slaughter, J. D. Rawlings, and G. G. Wright parties to the suit, and prayed for judgment for the full amount of the note, interest, and attorney’s fees secured by the deed of trust and a foreclosure of the lien. His cause of action against the C. C. Slaughter Company, W. B. Slaughter, and G. G. Wright was to restrain them from disposing of three vendor’s lien notes described as the Belle Green Ritchey notes held as collateral to the original note upon which he sought to recover, and to recover against Slaughter as indorser. This appeal is by W. B. Slaughter alone, and Morton is made the sole obligee in the bond. There is found in the statement of facts a stipulation by the parties that the amount of the indebtedness due from Williams is the principal sum of $5,424, with interest at 10 per cent, from December 6, 1914, “and that to such sum 10 per cent, attorney’s fees, as provided for in said note, shall be added, in the event claimant therefor shows himself entitled to recover same.” The pleadings of the parties and the judgment show that Slaughter and Williams were adversely interested, in that Slaughter is an indorser upon the principal note executed by Williams, and in the issues made by their pleadings with reference to the three Belle Green Ritchey notes held by Slaughter as collateral to the original obligation. Williams, however, was not made an obligee in the appeal bond, and, while Morton excepted to that part of the judgment which denied him attorney’s fees against Williams and Slaughter, he did not appeal from it.
If Williams was in any way a party to this appeal, Morton’s cross-assignment of error could be considered. Morton, of course, sought judgment for attorney’s fees against both Williams and Slaughter; but Slaughter, being an indorser, is only secondarily liable, and the cross-assignment cannot be considered as to him, and judgment cannot be rendered against him without rendering judgment against Williams, the principal obligor.
No motion was made by Morton to dismiss the appeal because of the defective bond, and after we have rendered a judgment it is too late to dismiss it upon our own motion. The bond, though defective, is sufficient to give this court jurisdiction of the appeal. Hugo v. Seffel, 92 Tex. 414, 49 S. W. 369; Williams v. Wiley, 96 Tex. 148, 71 S. W. 13; Waters Pierce Oil Co. v. State (Sup.) 106 S. W. 326. The question presented here was considered by this court in the ease of Wright v. Bott, 163 S. W. 360, on motion for rehearing, and we there held that the appellee’s cross-assignment could not be considered. The fact that Morton has not appealed was not called to our attention on the original hearing, and the motion for rehearing is granted, and the judgment heretofore rendered in favor of Morton for the attorney’s fees is set aside, and the judgment of the trial court is in all things affirmed.