Smith v. Briggs

• Decision Date: 20 January 1943
• Docket Number: No. 11228.,11228.
• Citation: 168 S.W.2d 528
• Parties: SMITH v. BRIGGS.
• Court: Texas Court of Appeals

168 S.W.2d 528

SMITH v. BRIGGS.

No. 11228.

Court of Civil Appeals of Texas. San Antonio.

January 20, 1943.

Rehearing Denied February 17, 1943.

Appeal from District Court, Bexar County, Seventy-third District; John F. Onion, Judge.

Action between R. W. Briggs and F. A. Smith wherein Briggs secured judgment against Smith and filed an application for garnishment, naming the Plaza Company as garnishee. The Plaza Company impleaded Frank Smith and others. From a judgment for Briggs, establishing and foreclosing a garnishment lien against certain shares of stock, Frank Smith appeals.

Affirmed.

Adams & Morgan, of Crockett, for appellant.

Eskridge & Groce, of San Antonio, and Strickland, Ewers & Wilkins, of Mission, for appellee.

NORVELL, Justice.

This is a case of garnishment after judgment. Appellee, R. W. Briggs, is the judgment creditor and F. A. Smith, commonly referred to in the briefs as Albert Smith, is the judgment debtor. Briggs secured his judgment in the 37th District Court of Bexar County, Texas, on December 10, 1937 (see Smith v. Briggs, Tex. Civ.App., 131 S.W.2d 319), and filed an application for garnishment in the same court on June 6, 1941. Plaza Company, a corporation, was designated as garnishee, it being alleged inter alia that Albert Smith was the owner of certain shares of the capital stock of said Plaza Company, although "such shares or interest may be in the name of L. P. Atmar."

Plaza Company impleaded L. P. Atmar, Albert Smith and Frank Smith, a son of Albert Smith, alleging that L. P. Atmar was a stockholder of record of said Plaza Company, holding in his name 310 shares of no par value common stock and 310 shares of $50 par value 5% preferred stock of the corporation, and that Frank Smith was claiming ownership thereof.

Atmar disclaimed ownership of the stock standing in his name and pleaded that the certificates representing said stock interest had been endorsed by him in blank and delivered to Albert Smith. Albert Smith also disclaimed, and Frank Smith by appropriate pleadings asserted ownership of the stock involved.

The issues made by the pleadings were tried to the court without a jury. Judgment was entered for Briggs, establishing and foreclosing a garnishment lien against the shares of stock involved. Frank Smith has appealed.

Appellant has predicated his appeal upon twenty points, but, under the view we take of the case, it is unnecessary for us to discuss these points in detail. There is but one matter of substance presented and that relates to the trial court's action in admitting in evidence certain testimony of the party and witness L. P. Atmar.

It appears that on or about December 12, 1927, Albert Smith was the owner of 310 shares of preferred stock of Smith Brothers Properties, a corporation. On February 15, 1932, these shares were transferred on the records of the corporation to Mrs. Rosetta Smith, the wife of Albert Smith and the stepmother of Frank Smith. The certificates of Smith Brothers Properties Company stock issued to Mrs. Rosetta Smith were introduced in evidence and all bear the following endorsement:

"For value received, I hereby assign and transfer unto L. P. Atmar ____ (number of shares covered by the particular certificate) shares of the Preferred Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint ____ to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises.

                   "Dated Feb. 20, 1932
                         "(Signed) Mrs. Rosetta Smith
                   "In presence of
                   "(Signed) F. A. Smith"
                

Albert Smith testified that his wife purchased this stock from him in 1932 for $2,500, which was paid to him in cash "taken from a little safe she had." (Frank Smith claims by purchase from Mrs. Rosetta Smith in 1937 or 1938, for $2,500, also paid in cash which he got out of his safe in his office.)

In 1937, the Plaza Company was organized to take over the assets of Smith Brothers Properties Company. For each share of preferred stock in Smith Brothers Properties Company the holder received one share of Plaza Company $50 par value 5% preferred stock and one share of no par value common stock.

On July 1, 1937, 310 shares of the preferred and 310 shares of the common stock of the Plaza Company were issued to L. P. Atmar. The certificates representing these shares were endorsed by Atmar in blank on July 20, 1937, in the presence of F. A. (Albert) Smith, whose signature appears on the endorsement as a witness.

Atmar testified that he had known Albert Smith for some fifty years and rather intimately for twenty-five years. When questioned about the Plaza Company stock, Atmar testified as follows:

"It seems to me this stock was a dividend from some other stock that was standing in my name. I don't remember the company. And I believe we had to to send the other stock in, I think it was to the National Bank of Commerce or to some trustee or trust officer in that institution in order to get this stock issued. This was kind of a dividend, from my understanding, from the other stock issued, whatever it was.

"Q. Did you have any conversations with reference to this stock with Mr. Albert Smith? A. Well, he had me to have this stock issued, and when it came back I held it over until he came in and I endorsed it and handed it over to him. * * *

"Q. State whether or not he made any statements to you with reference to the ownership of that stock. * * * A. He stated it was his stock and he wanted me to carry it in my name for him.

"Q. Did he give you any reason as to why he wanted it carried in your name? A. I don't remember at that particular time the conversation on that line.

"Q. Well, did he at that time or any other time with reference to this or any other stock make any statements as to wanting you to hold stock in your name that belonged to him? A. Yes.

"Q. What was the conversation? * * * A. He told me he didn't owe any money to anybody...