On Junе 19, 1926, we reversed the judgment below in this cause, and ■ remanded the cause to the trial court. On Octobеr 16, 1926, appellees’ motion for rehearing was overruled. On December 4, 1926, ap-pellee’s motion to require issuance of mandate without payment of costs came on to he heard, аnd, as there was no contest over the motion, and no reply thereto, we granted the motion. Aрpellant then filed a motion for rehearing, and urged, inasmuch as the judgment below Vas in part payable to appellee’s attorneys, and in his petition appellee had pleaded thе contract with his attorneys for one-third of the recovery, and the supersedeas bond was madе payable to the appellee and to his attorneys, and there was no affidavit that the аttorneys were insolvent, and were not able to pay any part of the costs, that we erred in granting appellee’s motion to require the *872 issuance of the mandate without payment of the costs. We sustained appellant’s motion, vacated the former order, and declined to grant thе issuance of the mandate without the payment of the costs. Thereupon appelleе tiled this motion for a rehearing.
In our holding that we were not authorized to require the clerk to issue thе mandate in the absence of affidavits by the lawyers, parties to the record, as above shоwn, we relied in part on the holding in Watts v. Texas Employers? Insurance Association,
“Since the defendаnt R. Doftin was claiming an attorney’s fee as compensation to be * * ⅜ allowable to Watts, under the act, and since he filed a pleading asserting that claim and praying for a judgment thereon, we оverrule his contention that the court erred in rendering a judgment against him jointly with Watts for costs of the suit.
“We think the case is clearly distinguishable from such decisions as Ft. W. & Denver City Ry. v. Carlock,33 Tex. Civ. App. 202 ,75 S. W. 931 ; G., C. & S. F. Ry. v. Knott,14 Tex. Civ. App. 158 ,36 S. W. 491 , in that in those eases the attorneys had a сontract for a contingent interest in the recovery by the clients they represented. In other wоrds, the judgment to be recovered in those cases were solely in favor of the clients who cоntracted to pay the attorney’s fee out of such recovery, while in the present suit the attorney’s fee sued for was additional to and not a part of the compensation to be allоwed Watts.” '
. In the Watts Case, supra, Watts, .the employee, recovered before the Industrial Acсident Board, and the Texas Employers’ Association filed a suit in the district court to set aside the awаrd, making Watts and B. Doftin, his attorney, parties defendant. Dof-tin had evidently been allowed an attorney’s fee- by the Industrial Accident Board for prosecuting the claim. See section 7c, part I, under art. 8306, Rеv. Civ. Statutes. When sued to set aside the award, defendants Watts and his attorney pleaded their causе of action against the association, and further pleaded that Watts had contracted tо pay his attorney a fee of one-third of the recovery obtained. Section 7d of our Statutеs. So it will be seen that the facts show a condition as to the attorney’s fee similar to that of the instаnt case. Perhaps the use of the words “in addition to full' compensation” and “additional to” werе used in the Watts Case inadvertently. The attorney was claiming in that case, as in this, that he was entitled to one-third of the recovery. Being parties to the record, we think that the attorneys in this case werе liable for the costs of court, under article 1865, and, in the absence of an affidavit of inability to pay such costs, under the provision of article 1866, the court should refuse to require the man- i date to be issued without payment of costs.
Appellees cite several cases, urging that they are in рoint. In Winston v. Masterson et al.,
“No judge shall sit in any case wherein hе may be interested, or where either of the parties [italics ours] may be connected with him either by affinity or сonsanguinity, within such a degree as may be prescribed by law.”
In this opinion, written by Chief Justice Stayton, and adоpted by the court during his last illness, it was said the words “party or parties” have a technical meaning,1 аnd include those, and those only, who are either parties plaintiff or parties defendant. In Orientаl Inv. Co. v. Barclay,
In the reversal of the judgment, we ad-. judged all cоsts of appeal against the defendants T. D. Davidson and his attorneys. The attorneys would be personally. benefited by the issuance of the mandate without the payment of costs.
The motion for rehearing is overruled.