# Fort Worth Grain & Cotton Exchange v. Smith Bros. Grain Co.

> Court of Appeals of Texas · May 21, 1931 · 40 S.W.2d 229

URL: https://www.frixlaw.com/law-library/cases/9834268

## Case

- **Full name:** Fort Worth Grain & Cotton Exchange v. Smith Bros. Grain Co.
- **Court:** Court of Appeals of Texas
- **Decided:** May 21, 1931
- **Citations:** 40 S.W.2d 229; 1931 Tex. App. LEXIS 1184
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Walthall
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

On Motion for Rehearing.
Appellant has filed a strong and interesting motion for rehearing. Nothing appears therein, however, that is not found in its brief, other than a suggestion that, in the event this court does not set aside the judgment of the trial court and render judgment in its favor, the case be certified to the Supreme Court for decision. This court is in harmony in the disposition we think to make of the case, and, while the case is one of first impression in the appellate courts of this state, and for that and other reasons important, we have concluded not to certify, but let the Supreme Court review the case on writ of error.
While we discussed in our conference the effect of matters contained in appellant’s charter and by-laws, so largely referred to in appellant’s brief and in its motion, we concluded that matters contained in its charter and by-laws, whatever they were, while authorized to adopt rules and regulations governing its members, by the express provision of our statute, such rules and regulations could not have the effect to relieve the stock it had issued from execution, if such stock was otherwise subject to execution. Under article 1320, under general provisions applying to private corporations, such corporations, under paragraph 6 of said article, may make by-laws “not inconsistent with existing laws, for the management of its property, the regulation of its affairs and the transfer of its stock,” an incident of its existence, for its internal government in the management of its affairs as among its members. Here ap-pellee is not dealing with the corporation, or any of its members, so as to be affected by its by-laws. There is no action here upon any rule, regulation, or by-law of the corporation, and hence no occasion to discuss any provision of such rule, regulation or by-law.
If we understand appellant’s contention, it is to the effect that the garnishment could not apply, for the reason that under the rules of appellant exchange it held a lien on the stock certificate of the member for dues, assessments, and other obligations until such were discharged, and other rights of the exchange. There is no suggestion in the record that any dues or other obligations of the member were due and not discharged. But, however that„might be,- we tried to make it clear in the opinion that a purchaser of the stock took it subject to any just claim, rule, or regulation of the corporation existing at the time of the service of the garnishment, which in any way affected the share of stock as stock, as distinguished from the person of the holder of the stock. We need not discuss the personal relation the purchaser of the stock would sustain, if any, toward the exchange. We do not concur in the view of appellant that the burden is upon appellee to show the financial condition or standing of the share of stock at the time of the service of the garnishment, nor do we think the case of *233 Downs v. Casop (Tex. Civ. App.) 250 S. W. 471 , referred to, so holds. That case holds, as we understand it, that the burden would be upon one seeking to subject the assets of an estate, pending administration, to a garnishment to show that, after an entry of the final decree ordering the distribution of the estate, there then existed in the hands of the administrator, in favor of distributees, a part of such estate subject to garnishment. Such fact was not, as here, peculiarly within the knowledge of the administrator; it could readily be shown by such final report. The reason for the holding'is clearly stated in the cases referred to in the opinion in that case, and we need not review them.
After a review of the whole case, in considering the motion, we have concluded that the ease should be affirmed. The motion is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9834268. Public record. Not legal advice.