#### D. S. BENNETT v. B. F. SHELTON.

Practice — Interlocutory Order — Premature Appeal.

An appeal from an order making an additional party is premature, and will be dismissed. The proper practice in such case is to note an exception to the interlocutory order complained of and have it reviewed on appeal from the final judgment

This was an action brought by plaintiff to recover a saw mill in possession of the defendant. At May Term, 1895, of Halifax Superior Court, W. P. White moved to be made a party defendant in order to set up a cause of action against the Lane Manufacturing Company as fully set out in his affidavit. His Honor being of the opinion that White was a necessary party allowed the motion and plaintiff appealed.

The affidavit was in substance, as follows:

“1. In_, 189 — ., plaintiff, acting as agent for the Lane Manufacturing Company, contracted with said White to sell him a Lane Manufacturing Company Saw Mill, No. *104-, with uprights openings 36 inches and taking a 56 inch saw, for the price of.__

“2. That under said agreement, said plaintiff and the Lane Manufacturing Company shipped to said White the mill now in controversy in this action, representing same to be of the dimensions and capacity above set forth, and said White immediately executed his notes according to the terms of said contract, giving said Bennett, Trustee for the Lane Manufacturing Company, a lien, or deed of trust, on said mill to secure the payment of said notes.

“3. That under and by virtue of said lien, or deed of trust, this action is brought by plaintiff.

“4. That when said mill was put together for work, said White discovered that said mill was not according to the contract; that it was of smaller capacity and dimensions, being with uprights only 32 inches and taking only a 54 inch saw ; said White at once notified said Bennett and said Lane Manufacturing Company of their violation of the contract. They promised at all times to make good the damages sustained by White by reason of their noncompliance with said contract.

“5. That White has paid all of said notes, except about $75, they promising to correct the matter of non-compliance.

“6. That by reason of said breach of warranty and violation of their contract, said White has been damaged to an amount larger than the sum due under said notes, to-wit: $150.00, being the difference between the mill contracted for and the one shipped.

“7. That said White afterwards sold said mill to defendant, Shelton, with warranty of title, who has same in his possession.

“8. That said White has an interest in the controversy, *105and is a necessary party to a complete settlement of tbe matter.”

Mr. R. 0. Burton, for plaintiff (appellant).

Mr. Olaude LLitchin, for defendant.

Clark, J.:

The plaintiff should have had his exception to the order making an additional party noted in the record, so that if he has suffered detriment thereby (which can rarely be the case) the order may be reviewed on appeal from the final judgment should it go against him. The appeal is premature and must be dismissed. Lane v. Richardson, 101 N. C., 181; Emry v. Parker, 111 N. C., 261.

Appeal Dismissed.