This is not an action on either of the official bonds executed by J. B. Hooks, clerk of the Superior Court of Wayne County, as principal, and the appellants, respectively, as surety. Neither the *421board of commissioners of Wayne County, tbe obligee in tbe bond executed by tbe defendant, Employers Liability Assurance Corporation, Ltd., as surety, nor tbe State of North Carolina, tbe obligee in tbe bond executed by tbe defendant, United States Fidelity and Guaranty Company, as surety, is a party to tbe action. Nor is any beneficiary of either of said bonds a party to tbe action. Tbe action is equitable in its nature, and is for tbe preservation of tbe securities in tbe bands of J. B. Hooks, as clerk of tbe Superior Court of Wayne County, at bis death, in order that tbe rights and equities of bis successor and of bis executors, respectively, may be ascertained and adjusted, under tbe supervision and orders of tbe court.
Neither of tbe appellants has or claims an interest in tbe securities which are tbe subject-matter of tbe action; nor is either a necessary party to a complete determination of tbe questions involved in tbe action. Neither of tbe appellants is, therefore, a necessary party to tbe action. C. S., 456, and C. S., 460.
Nor can it be held that either of tbe appellants is a proper party to tbe action. They have no interest, present or future, and no title, legal or equitable, in or to tbe securities which are tbe subject-matter of tbe action. They cannot be retained, over their objection, as parties defendant for tbe sole purpose of binding them by orders to be made from time to time, in tbe action. It is not alleged in tbe complaint or found by tbe court that tbe securities in tbe bands of tbe receiver are not sufficient, in value, to pay tbe amount due by J. B. Hooks, deceased, to tbe defendant, O. R. Aycock, bis successor as clerk of tbe Superior Court of Wayne County. C. S., 943.
As appellants are not proper parties to tbe action, tbe judgment retaining them as defendants is reviewable by this Court on their appeal from tbe judgment. If they were proper parties, tbe motion to dismiss tbe action as to them would have been addressed to tbe discretion of tbe court, and tbe judgment or order denying tbe motion would not have been reviewable. Guthrie v. Durham, 168 N. C., 573, 84 S. E., 859.
There was error of law in tbe refusal of tbe court to allow tbe motion of tbe appellants that tbe action be dismissed as to them, and as to each of them, for tbe reason that they are neither necessary nor proper parties to tbe action. Tbe judgment is
Reversed.
Stacy, C. J., not sitting.
ClaeksoN, J., dissents.