Boyd v. Walters, 201 N.C. 378 (1931)

Sept. 30, 1931 · Supreme Court of North Carolina

201 N.C. 378

C. O. H. BOYD, Trading as NEW BERN FERTILIZER COMPANY, v. F. P. WALTERS.

(Filed 30 September, 1931.)

1. Appeal and Error E h — Where there is no statement of case on appeal the Supreme Court is limited to correctness of judgment excepted to.

Where the record contains no statement of case on appeal the Supreme Court is limited to the consideration of the judgment, the appeal being regarded as an exception thereto.

2. Replevin G a — Correct form of judgment for plaintiff in action in claim and delivery where defendant replevies property.

Where the defendant in claim and delivery replevies the property, giving bond for the retention to cover loss in the action, the form of the judgment against him should be for the possession of the property with damages for its detention and costs, or for the value thereof if delivery cannot be had and damages for its detention, and against the surety on the bond for the full amount of the bond, to be discharged upon return of the property and the payment of damages and costs recovered by the plaintiff, or, if the return of the property cannot be had, upon payment of the value of the property at the time of its detention with interest thereon as damages, and costs, the recovery against the surety in no event to exceed the penalty of the bond. C. S., 610, 836.

Appeal by defendant from Devin, Jat May Term, 1931, of CeaveN.

Civil action in claim and delivery, wherein the personal property seized was replevied, N. E. Mobil becoming surety on defendant’s forthcoming bond.

The defendant’s indebtedness was found to be $227.00 and the value of the property taken in claim and delivery fixed at a like amount at the time of its seizure.

From a judgment that “the plaintiff have and recover of the defendant and the surety on his replevy bond, N. E. Mohn, the sum of $227.00,” with interest and costs, the defendant appeals.

B. D. Whitehurst for plaintiff.

Shaw & Jones for defendant.

Stacy, O. J.

Tbe record contains no statement of case on appeal, bence we are limited to a consideration of tbe judgment, tbe appeal. itself being regarded as an exception thereto. Casualty Co. v. Green, 300 N. C., 535, 157 S. E., 797.

Agreeably to tbe requirements of C. S., 836, tbe tenor of tbe defendant’s forthcoming bond is to tbe effect that, if tbe plaintiff be adjudged tbe owner and entitled to tbe recovery of tbe possession of tbe property described in tbe plaintiff’s affidavit, tbe defendant and bis surety bind themselves for tbe delivery thereof to tbe plaintiff, with damages for its deterioration and detention, if delivery can be bad, together with tbe costs of tbe action, and if such delivery cannot for any cause be bad, tbe defendant and bis surety bind themselves for tbe payment to tbe plaintiff of such sum as may be recovered against tbe defendant for tbe value of tbe property at tbe time of its wrongful taking and detention, with interest thereon as damages for such taking and detention, together with tbe costs of tbe action. Hall v. Tillman, 110 N. C., 230, 14 S. E., 745. Tbe judgment, therefore, should have followed tbe statute and tbe terms of tbe bond. Council v. Averett, 90 N. C., 168.

As pointed out in Trust Co. v. Hayes, 191 N. C., 542, 132 S. E., 466, tbe form of tbe judgment in claim and delivery, when tbe plaintiff 'recovers and summary judgment is taken against tbe surety, should be “for tbe possession of tbe property, or for tbe recovery of tbe possession, or for tbe value thereof in case a delivery cannot be bad, and damages for tbe detention” (C. S., 610), together with tbe costs of tbe action, with tbe further provision that tbe plaintiff recover of tbe surety on tbe defendant’s replevy bond tbe full amount of such bond, to be discharged, first, upon tbe return of tbe property and tbe payment of tbe damages and costs recovered by tbe plaintiff, or, second, if a return of tbe property cannot be bad, upon tbe payment to tbe plaintiff of such sum as may be recovered against tbe defendant for tbe value of the property at tbe time of its wrongful taking and detention, with interest thereon as damages for such taking and detention, together with tbe costs of tbe action, tbe total. recovery against tbe surety in no event, however, to exceed tbe penalty of tbe bond. Harrell v. Tripp, 197 N. C., 426, 149 S. E., 548; Polson v. Strickland, 193 N. C., 299, 136 S. E., 873. See, also, McCormick v. Crotts, 198 N. C., 664, 153 S. E., 152.

Tbe cause, therefore, will be remanded for judgment in accordance herewith.

Error and remanded.