Welfare Investment Co. v. Stowell

NOURSE, P. J.

The plaintiff, as assignee of the payee, sued one of four comakers of a joint and several promissory note. The defendant answered, setting up special defenses of payment through allegations that the purported assignment to the plaintiff herein was made at the instance and request of one of the comakers of said promissory note; that the plaintiff herein is in fact the

alter ego

of said comaker ; that the obligation of the defendant to the payee upon said promissory note was in fact satisfied and discharged by the plaintiff herein; and that the purported assignment thereof to this plaintiff was made for the purpose of enforcing said obligation against this defendant alone and for releasing therefrom the other comakers of said note. At the time of filing the answer the defendant also filed a cross-complaint, bringing in as additional parties the three other comakers of the note and the payee named therein. Summons was issued and served upon these parties pursuant to an order of court duly made for that purpose. This cross-complaint pleaded in somewhat briefer detail the same issue raised in the answer and alleged that a controversy existed as to the legal rights and duties of the cross-complainant and of the several cross-defendants. Before any of the cross-defendants had appeared, the plaintiff in the main action moved to strike the cross-complaint from the files on the grounds that it did not state facts entitling the defendant to declaratory relief because the facts alleged therein were the same facts alleged in the separate defenses pleaded in defendant’s

[277]

answer to the complaint. The motion to strike was granted and the appeal was taken upon a typewritten transcript.

Assuming that, the order striking the cross-complaint from the files is an appealable order within the rule of

Howe

v.

Key System Transit Co.,

198 Cal. 525 [246 Pac. 39], as argued by the appellant, this appeal cannot avail him because he has suffered no prejudice. The issue attempted to be raised in the cross-complaint is precisely the same as that pleaded in the special defenses found in the answer. It is appellant’s theory that when one of several comakers of a promissory note, either in his own name or through a dummy in his behalf, satisfies the primary obligation and takes an assignment of the note from the payee thereof the primary obligation is thereby discharged and is no longer a living obligation on the part of the makers thereof. It is then said that when this is done the assignee of the payee cannot sue his comakers on the primary obligation but is reduced to an action for either reimbursement or contribution. The theory advanced in the pleadings is supported by numerous authorities which are cited in