Domingo v. Getman

Burnett, J., delivered the opinion of the Court—Field, J., concurring. On the tenth-of February, 1854, plaintiff executed his note to Getman, due six months after date. On the twentieth of March, 1855, Getman assigned the note, without recourse, to Rhodes, who brought suit on the note in the District Court. Plaintiff then filed his bill in the same Court against the defendants, alleging fraud in obtaining the note, and praying for an injunction, and that the note be canceled. The plaintiff had a decree, and the defendants appealed.

The first point made by the defendants is, that the Court should have dismissed the bill upon defendants’ motion, for the reason that the plaintiff had a complete remedy at law, and should have set it up in defence to the action upon the note.

It is clear that if the remedy of Domingo was complete at law, he had no right to take the case from a jury and bring it before the Chancellor. But was his remedy as complete at law as in equity ?

The note was payable to Getman or order, and was assigned by him to Rhodes, after due. It was, therefore, liable to the same defence in the hands of any other party as it was in the hands of Getman. But had the fraud been set up at law, Rhodes could have at once discontinued his suit and kept the note hanging over the maker for years. It might have been assigned to another party, residing in another portion of the State, who could have harassed the maker by a suit commenced in the county where the assignee resided. The case was a proper one for equitable relief. If the facts stated in the hill were true, the maker had the right to have the note canceled, so as to prevent all future litigation.

The cases of Mitchell v. Oakley, and of Perrine v. Sticker, 7 Paige, 65 and 598, are not in point for defendants. The last case is an authority to support the view we have taken. The note in the case of Perrine v. Sticker was not negotiable, and the suit must always have been in the name of the payee; and, for that reason, he must have always been before the Court as the plaintiff of record, and liable to be examined as a witness.

The second objection made by the defendants is, that the Court erred in refusing to permit Getman to be sworn as a witness for bis co-defendant, Rhodes. This objection is not well taken. The point was decided by this Court in the case of La[103]cas, Turner & Co. v. Payne & Dewey, (7 Cal. Reports, 92.) If a party be improperly joined as a defendant, the Court or jury, upon application, should first pass upon his case; and, after he is discharged, he could then be examined as a witness for the other defendant.