We see no error in the judgment, we think it is in accordance with the authorities. 23 R. C. L., p. 911; C. S., 610; Trust Co. v. Hayes, 191 N.C. 542; Polson v. Strickland, 193 N.C. 299; Harrell v. Tripp, 197 N.C. 426, 428. The main question in this controversy was one of fact for the jury to determine.
s and summary judgment is taken against the surety, should be "for the possession of the property, or for the recovery of the possession, or for the value thereof in case a delivery cannot be had, and damages for the detention" (C. S., 610), together with the costs of the action, with the further provision that the plaintiff recover of the surety on the defendant's replevy bond the full amount of such bond, to be discharged, first, upon the return of the property and the payment of the damages and costs recovered by the plaintiff, or, second, if a return of the property cannot be had, upon the payment to the plaintiff of such as may be recovered against the defendant for the value of the property at the time of its wrongful taking and detention, with interest thereon as damages for such taking and detention, together with the costs of the action, the total recovery against the surety in no event, however, to exceed the penalty of the 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. The cause, therefore, will be remanded for judgment in accordance herewith.
The defendant, upon the other hand, contends that the judgment in the former action was a final judgment, and consequently, the trial judge had no authority to resurrect a dead case and put it back on the trial docket. The contention of defendant is sound and is directly supported by Polson v. Strickland, 193 N.C. 299. See, also, Moore v. Edwards, 192 N.C. 446.
It would also seem that the form of the judgment as pointed out in Trust Co. v. Hayes, 191 N.C. 542, 132 S.E. 466, should be "for the possession of the property, or for the recovery of the possession, or for the value thereof in case a delivery cannot be had, and damages for the detention" (C. S., 610), plus costs, with the further provision that the plaintiff recover of the surety on the defendant's replevy bond the full amount of such bond, to be discharged, first, upon the return of the property and the payment of the damages and costs recovered by the plaintiff; or, second, if a return of the property cannot be had, upon the payment to the plaintiff of such sum as may be recovered against the defendant for the value of the property at the time of its wrongful taking and detention, with interest thereon as damages for such taking and detention, together with the costs of the action, the total recovery against the surety in no event to exceed the penalty of the bond. Polson v. Strickland, 193 N.C. 299, 136 S.E. 873. For the errors, as indicated, a new trial must be awarded; and it is so ordered.
In Moore v. Edwards, 192 N.C. at p. 448, it was said: "We can find no statutory provision prohibiting separate actions in a case of this kind. It is no doubt better practice to try out the entire controversy in one action." See Polson v. Strickland, 193 N.C. 299; Crump v. Love, 193 N.C. 464. Second. "Where, from all the evidence before the court the jury can draw but one inference, will a new trial be granted on account of error in the charge of the trial judge?
Modified and affirmed. Cited: Williams v. Sasser, 191 N.C. 456; Daniel v. Bass, 193 N.C. 299.