Spruill v. Bank of Plymouth

79 S.E. 262, 163 N.C. 43, 1913 N.C. LEXIS 113

Opinion

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.

It 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.