Wright ex rel. Wright v. Nash , 205 N.C. 221 ( 1933 )

CoNNOR, J.

The replevin bond executed by J. R. Spencer as surety was filed by the defendant in the Recorder’s Court of Camden County, in which court this action was instituted. For that reason, it was not required by statute that the bond should be conditioned for the payment by the defendant of the costs of the .action, in the event that it should be adjudged that plaintiff was the owner and entitled to the possession of the personal property which is the subject-matter of the action. C. S., 836. The statute requires that the defendant’s undertaking or bond for the replevy of personal, property taken from him under a writ of claim and delivery issued in an action for the recovery of the possession of personal.property, shall be conditioned for the payment of the costs of the action by the defendant, if it shall be adjudged therein that plaintiff is the owner and entitled to the possession of the property, only where the action was instituted in the Superior Court. "Where the action was instituted in the court of a justice of the peace, or in a court inferior to the Superior Court, the defendant is not required by statute to give bond for the payment by him of the costs of the action, if a judgment adverse to him is rendered in the action. However, when, as in the instant case, the bond filed by the defendant in an action instituted in a court other than the Superior Court, is so conditioned, the bond is not for that reason void and unenforceable against either the defendant or his surety. In the absence of fraud, mistake, or other matters entitling them or either of them to equitable relief, both the defendant and his surety are bound according to the terms of the bond, which they executed voluntarily. 9 O. J., 24.

The judgment in this action that plaintiff recover of the defendant and of J. R. Spencer, the surety on his replevin bond, the costs of the action, was not void. Trust Co. v. Hayes, 191 N. C., 542, 132 S. E., 466. For that reason, there was no error in the refusal of the clerk to allow the motion of the surety that the execution on the judgment against him be recalled and vacated. Wallace & Sons v. Robinson, 185 N. C., 530, 117 S. E., 508. The order of the judge must be and is

Affirmed.