| Cal. | Apr 15, 1852
delivered the opinion of the Court. (After stating the facts of the case.) By the record, it appears that the original trial, between Henaric & Co. and the appellant, upon this note, was fairly had; and that final judgment was rendered in favour of the appellant; from which the plaintiffs did not choose to appeal; but a sort of legal strategy was resorted to, by suing the appellant over again, in the name of Bidleman, the Second indorser, (first indorsee.) The first judgment, in favour of the appellant, not having been disturbed, and being in full force, was a bar to any future suit upon that note, inasmuch, also, as the counsel for the respective parties having agreed that the record was true, it appeared that the endorsements were regularly made, not questioned, and that, at the trial, the judgment was rendered upon the merits, and not for any technical cause, in favour of the appellant.
This court will not countenance proceedings of the character of this case. They are alike unjust and illegal. If there was any good cause to except to the original judgment in favour of the appellant, in the case of Henaric & Co. and himself, the legal presumption is, that the plaintiffs would have availed themselves of their right to do so, and appealed. In the absence of this, the conclusion of law, as to this point, goes with the judgment against them.
In the present case, a new party, the endorser, has succeeded, by the. default of the appellant, in obtaining a judgment against him upon the same note, in a new suit. The causes which led to that default, we think are sufficiently made out by the appellant, so as to show that he was taken by surprise," and was entitled to his motion before the Court below, to have the judgment set aside, and the case reheard. Upon that rehearing, it would have been the duty of the Court below to have dismissed the suit of the plaintiff, Bidleman, at his costs. And it is proper for this Court to do what that Court ought to have done ; and it will be a very mild rebuke of a very extraordinary attempt on the part of the plaintiff.
Our decision is, that the judgment of the Court below, refusing