Shuler v. Bryant

Court of Appeals of North Carolina

Shuler v. Bryant

188 S.E.2d 652, 14 N.C. App. 660, 1972 N.C. App. LEXIS 2216

CourtCourt of Appeals of North Carolina

DecidedMay 24, 1972

DocketNo. 7230DC111

StatusPublished

Cited by2 cases

This text of 188 S.E.2d 652 (Shuler v. Bryant) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shuler v. Bryant, 188 S.E.2d 652, 14 N.C. App. 660, 1972 N.C. App. LEXIS 2216 (N.C. Ct. App. 1972).

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Opinion

VAUGHN, Judge.

Failure to prosecute an action in which property is taken under a writ of claim and delivery is a breach of the bond. The defendants in that action may maintain an independent action for damages against the plaintiff in the former action and the surety on his bond. Davis v. Wallace, 190 N.C. 548, 130 S.E. 176. There is no showing in this record that there has been a prior adjudication of plaintiffs’ claim for the alleged wrongful taking of their property. It was error, therefore, to enter a directed verdict for defendant on that ground and for this reason the judgment from which plaintiffs appeal is reversed.

Since the question was not raised by either party, at trial or bn appeal, we will allow plaintiffs to chart their own course in their suit against the surety on his liability to pay such sums as “may be recovered against the plaintiff” when in fact the plaintiff in the claim and delivery action is not a party and, as far as we can determine from the record before us, there has been no prior determination as to the extent of the liability, if any, of the plaintiff in that action. See Moore v. Humphrey, 247 N.C. 423, 429; 101 S.E. 2d 460.

Reversed.

Judges Brock and Hedrick concur.

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VAUGHN, Judge.

Failure to prosecute an action in which property is taken under a writ of claim and delivery is a breach of the bond. The defendants in that action may maintain an independent action for damages against the plaintiff in the former action and the surety on his bond. Davis v. Wallace, 190 N.C. 548, 130 S.E. 176. There is no showing in this record that there has been a prior adjudication of plaintiffs’ claim for the alleged wrongful taking of their property. It was error, therefore, to enter a directed verdict for defendant on that ground and for this reason the judgment from which plaintiffs appeal is reversed.

Since the question was not raised by either party, at trial or bn appeal, we will allow plaintiffs to chart their own course in their suit against the surety on his liability to pay such sums as “may be recovered against the plaintiff” when in fact the plaintiff in the claim and delivery action is not a party and, as far as we can determine from the record before us, there has been no prior determination as to the extent of the liability, if any, of the plaintiff in that action. See Moore v. Humphrey, 247 N.C. 423, 429; 101 S.E. 2d 460.

Reversed.

Judges Brock and Hedrick concur.

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Bluebook (online)

188 S.E.2d 652, 14 N.C. App. 660, 1972 N.C. App. LEXIS 2216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shuler-v-bryant-ncctapp-1972.

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