The appeal challenges the correctness of the ruling of the court below that the plaintiff was not entitled to a summary judgment against the surety on the bond of the defendant executed for the return of property attached. The appellant contends that, being entitled to recover against the principal, at the same time and in the same action, he was entitled to judgment, without notice or hearing, against the surety on the principal’s forthcoming bond given for the release of property lawfully attached.
An examination of the record of the various proceedings in this case, which extended over a period of several years, leads us to the conclusion that summary judgment, without notice, against the surety on the bond of the defendant in attachment, conditioned for the return to the sheriff of Craven County of the property attached, if return thereof be adjudged by the court, may not be entered as a matter of course upon ascertaining the amount due plaintiff by the defendant.
The form of the bond in suit is substantially that prescribed by C. S., 813, rather than that authorized by C. S., 815 when application is made by defendant for the discharge of the attachment. 'While the rule is that a plaintiff in claim and delivery proceedings, upon recovery, is entitled to a summary judgment against the sureties on the defendant’s replevin bond (Trust Co. v. Kayes, 191 N. C., 542, 132 S. E., 466), the proper form of the judgment in that case is first for the possession of the property claimed, and, in case delivery cannot be had, for recovery against the defendant and the sureties bn the replevin bond. However, the rules of procedure applicable to the different ancillary remedies prescribed in the code of civil procedure are not in all respects the same. These remedies are purely statutory and rights thereunder are governed by the provisions of the statutes relating thereto. Mahoney v. Tyler, 136 N. C., 40, 48 S. E., 549; Williams v. Perkins, 192 N. C., 175, 134 S. E., 417. The procedural question relative to the judgment in attachment, presented by this appeal, seems to have been settled by the decision of this Court in Bizzell v. Mitchell, supra, where it was said: “It may be noted that no statute in attachment makes provision for summary judgment on the undertaking. The statute, C. S., 815, supra, *693says: ‘That tbe surety will, on demand, pay to tbe plaintiff,’ etc. See Mahoney v. Tyler, 136 N. C., 40; Williams case, supra. No summary judgment against tbe surety, H. L. Bizzell, on tbe undertaking in tbis attachment could be rendered in tbis action. Tbe judgment tendered by plaintiff, appellant, against tbe surety was properly denied. Of course, by consent, a surety on an undertaking on attachment can come in and tbe matter be determined in tbe one action, otherwise a separate action must be brought on tbe undertaking.” Tbis rule of procedure finds support in 5 Am. Jur., 157, where it is said: “Tbe usual practice in tbe enforcement of a bond to dissolve an attachment or garnishment or to release attached or garnished property is by an action on such bond.”
Tbe cases of Thompson v. Dillingham, 183 N. C., 566, 112 S. E., 321, and Martin v. McBryde, 182 N. C., 175, 108 S. E., 739, cited by plaintiff, may not be held controlling under tbe facts of tbis ease. In Thompson v. Dillingham, supra, tbe bond was given for tbe discharge of tbe attachment and was conditioned to pay to the plaintiff any and all sums tbe plaintiff should recover in the action. It was there held that tbe judgment against tbe principal, unassailed and unexcepted to, was not open to objection by the surety who must conform to bis obligation. In Martin v. McBryde, supra, tbe bond, substituted upon release of attached property, was for tbe payment of tbe recovery which should be adjudged. Tbe other cases cited by plaintiff are not in point.
Tbe judgment of the court below is
Affirmed.
Stacy, C. J., took no part in tbe consideration or decision of tbis case.