Appellant, J. W. McGuire, filed this suit against the Benton State Bank, alleging that he had $6,075 in the bank as a joint account with his wife; that he had attempted to withdraw the money and the bank would not permit such withdrawal. McGuire prayed judgment against the bank for the amount of the deposit. The bank answered, alleging that the money was in a savings account in the name of Mr. and Mrs. J. W. McGuire; that at the time said deposit was made a savings book was issued to the depositors, in which book it is provided that same must be presented when money is deposited or withdrawn from said account; that said book also provides that *609“payments may be made without production of the pass book, if the depositor shall prove to the satisfaction of the bank that his book has been lost, stolen, or destroyed.” The bank further alleged in its answer that it had reason to believe that “Mrs. J. W. McGuire holds the said pass book and under the terms of such account, would be a necessary party to this suit before any action could be taken”, and asked that Mrs. McGuire be made a party defendant. Mrs. McGuire filed an answer in which she admitted there was a joint account with her husband in the bank in the sum of $6,-075 and alleged she has the deposit book in her possession. She further alleged that she has not requested the Benton State Bank to pay over the said funds. She denied all the other allegations of the complaint.
Upon trial of the cause it appeared that there was $6,075 in the bank in the joint account of Mr. and Mrs. McGuire; that the bank had refused to cash Mr. McGuire’s check for the money; that Mrs. McGuire has the bank book, and that she and Mr. McGuire have separated. The bank book itself was not introduced in evidence; McGuire attempted to require Mrs. McGuire to put it in evidence, but the court overruled his motion to that effect. It does appear that there are photostatic copies of portions of the bank book in the record, and there is printed on the base of the bank book: “This book must be presented when money is deposited or withdrawn.” The bank offered to deposit the money in the registry of the court, but McGuire would not consent to this . He was contending that he should have judgment against the bank for the amount of the deposit and his costs. After McGuire had proved the deposit and the bank’s refusal to let him withdraw the money, he rested his case. Neither the bank nor Mrs. McGuire put on any evidence whatever. The bank demurred to the evidence. The court sustained the demurrer and dismissed the cause with prejudice.
Obviously the bank did not feel that it could safely pay the money to Mr. McGuire, knowing there was a controversy between him and Mrs. McGuire as to the own*610ership of the money, and that under the agreement between the parties when the deposit was made the bank could insist on the bank book being presented when a withdrawal was made, or that good reason be shown why the book could not be presented. It is self-evident that there is a controversy between Mr. and Mrs. McGuire as to the ownership of the money. All parties were in court, and the bank offered to deposit the money in court. The ownership of the money will have to be determined sometime, and there is no good reason why it cannot be done in this litigation. The decree is therefore reversed with directions to overrule the demurrer and proceed to a full development of the cause.
Reversed.
McFaddin, J., concurs; Harris, C. J., dissents.