Crump v. . Love

Brogden, J. If personal property is seized in a claim and delivery proceeding and final judgment rendered, and thereupon the owner of the property pays the judgment and the property is restored to him, can such owner maintain an action for damages for the impairment or deterioration of the property during the time it was so held by the adverse party? When property is taken by a party in claim and delivery proceedings, he thereupon becomes practically an insurer under the terms of the bond required in such cases. Randolph v. McGowans, 174 N. C., 203; Motor Co. v. Sands, 186 N. C., 732. Therefore, the party holding the property must answer for its impairment or deterioration while in his custody. In the case now under consideration, the defendant contends that the payment of the former judgment by the plaintiff in this action, who was the defendant in the former action, is an estoppel, or res judicata, and for this reason the plaintiff has no cause of action. The record discloses, in the former action of Love v. Crump, the judgment was a default judgment, decreeing that the plaintiff Love should take over and sell said horses at public auction according to law. No issue was submitted in the former action as to the present plaintiff’s damages for the deterioration and detention of the property. Hence, no estoppel arises. Hardison v. Everett, 192 N. C., 374; Whitaker v. Garren, 167 N. C., *467 658; Price v. Edwards, 178 N. C., 493. Therefore, it necessarily follows that the plaintiff has stated a cause of action, and that the demurrer should have been overruled. Woody v. Jordan, 69 N. C., 189; Asher v. Reizenstein, 105 N. C., 213; Bowen v. King, 146 N. C., 389; Moore v. Edwards, 192 N. C., 446; Polson v. Strickland, ante, 300. Indeed, the case of Moore v. Edwards, supra, is directly in point, and is determinative of this controversy. In that ease, Clarkson, J., speaking for the Court, said: “It will readily be seen by the issues and judgment in the former action of Moore v. Mitchell, that plenary issues were not submitted. The condition in the bond was ‘with damages for its deterioration and detention, and the costs, if delivery can be had.’ No issue was submitted, ‘If delivery can be had, what were plaintiff’s damages for deterioration and detention?’ Under the issues and judgment, we cannot hold that in the present action the plea of estoppel, or res judicata, can avail defendant.” Reversed.