Shuler v. Bryant , 14 N.C. App. 660 ( 1972 )

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.