Horton v. . Horne

Davis, J., (after stating the case). Sec. 431 of The Code prescribes the manner in which the judgment in actions for *221 the recovery of personal property shall be rendered. “ Judgment for the plhintiff may be for the possession, or for the recovery of possession, or for the value thereof, in case a delivery cannot be had, and the damages for the detention. If the property has been delivered to the plaintiff and the defendant claims a return thereof, judgment for the defendant may be for a return of the property, or for the value thereof in case a return can not be had, and damages for taking and withholding the same.” In the case before us the personal property in controversy having been put into the possession of the plaintiff, the judgment should have declared his right to the possession of so much of it as by the verdict of the jury he was found to be “ the owner and entitled to the possession of,” and for the return to the defendant of that which was wrongfully taken, or for the value thereof, as found by the jury, in case a return cannot be had. Manix v. Howard, 79 N. C., 553. The plaintiff was also entitled to his judgment for costs. Section 525 of The Code provides that “ costs shall be allowed of course to the plaintiff upon a recovery * * * in an action to recover the possession of personal property.” This was an action for the recovery of personal property, and a substantial recovery by the plaintiff. The action was rendered necessary by the wrongful detention of his property by the defendant, and though he did not recover all the property claimed, there was a recovery as to the greater part of it, and he is entitled to his costs. In Wooley, adm’r, v. Robinson, 7 Jones, 30, the plaintiff in an action of detinue to recover several articles, succeeded in recovering some and failed as to others, and it was held that the witnesses examined for the plaintiff in regard to the articles only as to which he failed, were not, ipso facto, to be excluded from his bill of costs. In Wall v. Covington, 76 N. C., 150, it was held that no *222 part of the costs of an action can be taxed against the party-recovering judgment. * The judgment.of the Court below must be modified and reformed so as to accord with this opinion. Error and judgment modified.