#### JULIAN SPRUILL v. BANK OF PLYMOUTH.

(Filed 10 September, 1913.)

1. Banks and Banking — Notice Not to Pay Check — Parties.

When sued for the payment-of a check drawn on.it, upon allegation that the drawer gave previous notice not to do so, a bank defends upon the ground that no such notice was given, the issue raised is only upon the question of notice, and the payee of the check is not a necessary party.

2. Trials — Parties, Proper — Court’s Discretion.

The question as to whether one who is not a necessary party to the action is a proper party is one within the discretion of the trial judge, and from his decision thereof no appeal lies.

3. Appeal and Error — Parties—Premature Appeal.

In this action against a bank for payment of a check after notice from the drawer not to do so, the payee thereof having been made a party defendant, also, an appeal from the judgment of the court dismissing the action as to the payee is premature.

Appeal by defendants from Whedbee, J., at April Term, 1913, of WASHINGTON.

Tbis action was commenced against tbe Bank of Plymouth and Clarence Latham, before a justice of the peace, to recover the sum of $200.

On the return day of the summons the defendant bank and Latham moved that U. S. Jackson be made a party, and that summons issue to Pitt County, the residence of said Jackson. The motion was granted and the case continued. On the return day the defendant Jackson, through his counsel, entered a special appearance and moved to dismiss the action, for that the *44justice did not have jurisdiction over tbe defendant Jackson and tbe joining of Jackson was a fraud upon tbe jurisdiction. Tbe justice reserved bis ruling 'upon tbe motion until be beard ' tbe evidence. After bearing tbe evidence, be overruled tbe defendant Jackson’s motion, but dismissed tbe action upon tbe merits. Thereupon tbe ■ plaintiff gave notice of appeal, and tbe case was beard by bis Honor, TI. W. Whedbee, a,t tbe April Term, 1913, of tbe Superior Court. Upon tbe calling of tbe case the defendant Jackson, through bis counsel, renewed tbe motion to dismiss tbe action as to him, and thereupon bis Honor stated that be would bear tbe pleadings and tbe evidence before ruling upon tbe. motion.

.'Thereupon tbe pleadings were read, except tbe answer of H. S. Jackson.

Tbe plaintiff alleged that be bad drawn a check for $200 on tbe defendant bank in favor of U. S. Jackson, and that tbe bank - paid tbe same, after notice to its cashier, tbe defendant Latham, not to do so. 'The plaintiff stated in open court that be did not demand any relief against Jackson, and the defendants, tbe bank and Latham, denied liability to tbe plaintiff, upon tbe ground that tbe plaintiff bad not given tbe notice to refuse payment of tbe check.

Tbe court held that no relief was demanded or cause of ■ action stated against tbe said Jackson, and thereupon. dismissed tbe action as to Jackson, and signed tbe judgment set out in tbe record. To which ruling and judgment tbe defendants bank and Latham excepted and appealed to tbe Supreme Court.

W. M. Bond, Jr., for defendant bank, appellant.

Albion Dunn for defendant Jackson, appellee.

AlleN J.,

after stating tbe case: Tbe settlement of tbe controversy between tbe plaintiff and tbe defendants tbe bank and Latham is dependent upon one fact, and that is, whether tbe plaintiff notified tbe defendants to refuse payment of tbe check before it was paid, and tbe presence of Jackson in this action is not necessary to. its determination.

*45It also appears tbat tbe plaintiff stated in open court tbat be demanded no relief against Jackson, and neither tbe bank nor Latbam can recover against bim upon tbe facts now presented, because they allege tbat they paid tbe check to bim rightfully before notice not to pay, which, if true, would exonerate them from liability.

"We are, therefore, of opinion tbat Jackson is not a necessary party, and if a proper and not a necessary party, which is doubtful in view of tbe fact tbat tbe plaintiff makes no demand against bim, and tbat tbe defendants cannot claim a liability on bis part to them, ’except upon tbe ground tbat tbey wrongfully paid the check after notice not to do so, which tbey deny, it was discretionary with tbe judge to make bim a party; and bis action is not reviewable. Aiken v. Manufacturing Co., 141 N. C., 339.

We are also of tbe opinion tbat tbe appeal is premature and must be dismissed. Lane v Richardson, 101 N. C., 181; Emry v. Parker, 111 N. C., 261; Bennett v. Shelton, 111 N. C., 103; Gammon v. Johnson, 126 N. C., 64.

Appeal dismissed.