66 Cal. 358 | Cal. | 1885
The note assigned by the defendants Grossini and Tiscornia to Spinetti was affected by fraud, and was very properly ordered to be cancelled. But as it was not negotiable without offset, and Spinetti had assigned it before action brought, we cannot see that he was either a proper or necessary party to this suit. If the note had been negotiable, and Spinet-ti had assigned it to an innocent purchaser, the case would have been different, and it would then have been proper to have made him a party. Again, no judgment for money was asked for against Spinetti or his assignee, Childs—nor would any such judgment be proper. As to the note, the plaintiff only asked that it be cancelled. This he procured. It was only necessary for this purpose to have Childs, the holder of the yote when the action was begun, before the court.
The judgment must be reversed as to' Spinetti, and the cause remanded, that it may be modified in accordance with what is here said.
Ordered as above.
Myrick, J., and Sharpstein, J., concurred.