Opinion
Department Two
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.
COUNSEL:
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.)
John M. Burnett, and Davis Louderback, for Appellant.
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.)
JUDGES: Thornton, J. Myrick, J., and Sharpstein, J., concurred.
OPINION
THORNTON, Judge
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 Spinetti 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 note 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 [5 P. 610] in accordance with what is here said. As Spinetti only appeals, the judgment will in other respects remain unaffected.
Ordered as above.