Kawamoto v. Sawano — 110 Cal. App. 610

Majority

p. 610

[Civ. No. 7708.

First Appellate District, Division Two.

December 23, 1930.]

H. C. KAWAMOTO, Respondent, v. J. SAWANO, Appellant.

p. 611

J. Marion Wright for Appellant.

Le Roy Reames and James R. Jaffray for Respondent.

Plaintiff sued on a promissory note. He had judgment against both defendants and Sawano alone appeals on typewritten transcripts.

The due execution of the note is admitted, Sawano and the corporation being joint makers. The consideration was money admitted to have been given the corporation and'used in the business of the corporation in which Sawano was a heavy stockholder. The defense to the action was that the note had been paid by the acceptance of two other notes executed by the corporation alone.

The trial court found against defendants on this special defense and on this appeal the appellant insists that this finding is not supported by the evidence. The appellant offered testimony of a number of witnesses tending to show that in January, 1926, the plaintiff delivered the note in suit to the corporation and took in lieu thereof two other notes executed by the corporation alone. In rebuttal the

p. 612

During the course of the trial "the plaintiff voluntarily dismissed the action as to the corporation and then discovered that as the note in suit was joint it was necessary to have the corporation as a party defendant. Its motion to restore the corporation as a defendant was granted over the objection of Sawano, but without objection from the corporation. As the corporation was a necessary party the court was authorized to order it brought in. (Sec. 389, Code Civ. Proc.) As there is no objection by the corporation as to the time or the manner in which this was done the order is not reviewable on this appeal.

Judgment affirmed.

Sturtevant, J.} and Spence, J., concurred.