Opinion
(Filed 11 October, 1933.)
Appeal and Error A d —
An order denying a petition for the joinder of parties who are not necessary parties to the pending action is not reviewable and an appeal therefrom will be dismissed in the Supreme Court.
APPEAL by Farmers Bank of Clayton, Weisner Farmer, receiver of Nellie Horne McCullers, and C. A. Gosney, trustee in bankruptcy of C. W. Horne, and of Ashley Horne and Son, petitioners, from Frizzelle, J., at April Term, 1933, of JOHNSTON. Dismissed.
Winfield H. Lyon and E. J. Wellons for plaintiff.
Parker Lee and Ruark Ruark for C. A. Gosney, trustee.
Parker Lee for Farmers Bank of Clayton, and Weisner Farmer, receiver.
This is an action to recover on a note for $20,000, executed by Ashley Horne and Son, and now owned by the plaintiff.
It is alleged in the complaint that at the date of the execution of the note sued on, Ashley Horne and Son, the maker, was a partnership, composed of Ashley Horne and C. W. Horne; that Ashley Horne is dead, and that C. W. Horne is his duly qualified administrator.
No answer to the complaint has been filed by the defendant, C. W. Horne, as administrator, or as an individual.
The Farmers Bank of Clayton is a judgment creditor of Nellie Horne McCullers, who is an heir at law and distributee of the estate of Ashley Horne, deceased; Weisner Farmer is the receiver of Nellie Horne McCullers, by appointment of the court in a supplementary proceeding in execution on the judgment in favor of the Farmers Bank of Clayton and against the said Nellie Horne McCullers; and C. A. Gosney is the trustee in bankruptcy of C. W. Horne, who is an heir at law and distributee of the estate of Ashley Horne, deceased, and also trustee in bankruptcy of Ashley Horne and Son.
The action was heard on petitions filed with the clerk of the Superior Court of Johnston County praying that the petitioners be made parties defendant in the action, and have leave to file answers to the complaint, setting up certain defenses to the cause of action alleged therein. The petitions were denied, and the petitioners appealed to the judge of the Superior Court of Johnston County.
At the hearing of the appeal, the order of the clerk was affirmed, and the petitioners appealed to the Supreme Court.
Whether or not the petitioners are proper parties to the action, need not now be decided. They are at least not necessary parties, and for that reason, the order denying their petition is not subject to review by this Court. McIntosh N.C. Prac. Proc., p. 185. Byrd v. Byrd, 117 N.C. 523, 23 S.E. 324. The appeal must be
Dismissed.