In the opinion heretofore filed we expressed doubt as to whether the decisions of the Courts of Civil Appeals for the First and Third Districts in the cases there cited could be reconciled with the opinion of our Supreme Court in the case of Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co. Since then the decision of the Court of Civil Appeals for the Fifth District, in the case of Rogers v. East Line Lumber Co., 33 S.W. Rep., 312, which is directly in point, has been published. The opinion of Justice Rainey in this case, which holds that the assets of an insolvent corporation which has failed in business are not subject to levy at the instance of one creditor to the exclusion of others, we understand to have been approved by our Supreme Court in the refusal of a writ of error therein.
For this additional reason, therefore, the judgment already entered must stand, and this motion be denied, there being no merit in the other contention of the motion, that plaintiffs herein are bound by the result in the attachment suit. The trustees who bring this suit at the instance and for the benefit of the creditors, as alleged, though members of the board of directors of the corporation before it ceased to do business, were not parties to the attachment suit brought thereafter against the corporation, certainly not in the right and capacity in which this suit is prosecuted.
Overruled.