STEPHEN CAMPODONICO, Respondent, v. U. GROSSINI et. al. A. SPINETTI, Appellant

[No. 8,398. Department Two. January 16, 1885.] STEPHEN CAMPODONICO, Respondent, v. U. GROSSINI et. al. A. SPINETTI, Appellant. Caitobklatioit—Non-Negotiabee Note—Parties Debemdant—Imtermediate Indorsee—Costs.—In an action brought to procure the cancellation of a nonnegotiahle note, on the ground, of fraud, after an assignment to a mala fide purchaser, an intermediate indorser is neither a propernor necessary party, and judgment for costs should not he rendered against him. The holder of the note at the time of the commencement of the action is the only necessary defendant. Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial. On July 19, 1880, the defendants Grossini and Tiscornia, being copartners, in consideration of the sum of $3,050, admitted plaintiff as a member of the firm. Of such consideration the sum of $631.33 was paid in money, and a memorandum due bill given for the balance. Prior to the commencement of this action, Grossini and Tiscornia assigned such due bill to the defendant Spinetti, who assigned it to the defandant Childs. Soon after entering the partnership, the plaintiff discovered that the representations made to him by his copartners, as to their financial condition, were false and fraudulent. He thereupon •brought the present action to dissolve the partnership, procure a cancellation of the due bill, and for other relief. Judgment was rendered in his favor, and costs awarded against Spinetti and the other defendants. Spinetti appealed from the judgment, and from an order denying him a new trial. John M. Burnett, and Davis Louderback, for Appellant. The defendant Spinetti was neither a proper nor necessary party, as no relief was asked or granted against him. (Kerr v. Watts, 6 Wheat. 50; Whitaker v. DeGraffenreid, 6 Ala. 303; Johnson v. Rankin, 3 Bibb, 86 ; McConnell v. McConnell, 11 Vt. 290; Petch v. Dalton, 8 Price, 12; Wright v. Santa Clara Min. Co., 12 Md. 443; Story’s Eq. Pl., 7th ed. §§ 231, 233; Trecothick v. Austin, 4 Mason, 42; Snow v. Snow, 3 Madd. 10 ; LeTixier v. Margravine, of Anspach, 15 Ves. 164; Griffin v. Archer, 2 Anst. Rep. 478.) As no judgment was rendered against him, there was no authority or power to make him pay costs. Under the code system, costs are simply an incident of a judgment. (Lawrence v. Martin, 22 Cal. 178 ; Bailey v. Taaffe, 29 Cal. 424.) Tilden & Tilden, for Respondent. This being an equitable action, the matter of costs rests in the discretion of the trial court. (Code Civil Proc., § 1025.) [MAJORITY — Thornton, J.] Thornton, J. 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. As Spinetti only appeals, the judgment will in other respects remain unaffected. Ordered as above. Myrick, J., and Sharpstein, J., concurred.