#### GARLAND POLSON, Through His Next Friend, G. L. POLSON, v. J. M. STRICKLAND, THE TEXAS OIL COMPANY, a Corporation, and E. V. CARTER.

(Filed 2 March, 1927.)

Claim and Delivery — Judgments — Damages — Motion to Reinstate — Pleadings.

While the successful plaintiff in claim and delivery is entitled to recover the property when it can be returned, together with damages for its depreciation, C. S., 836, after a judgment for the delivery of the property *300alone, a motion to reinstate the action for the purpose of inquiry as to damages for its depreciation cannot be allowed when the pleadings and evidence sustain the issues submitted upon which the judgment has been rendered, the judgment in that case being final and not interlocutory.

Appeal by defendants from Grady, J., at October Term, 1926, of Nash. Reversed.

Tbe necessary facts will be set forth in tbe opinion.

J. A. Edgerton and Thorne & Thorne for plaintiff.

E. B. Grantham and Gooley & Bone for defendants.

Clarkson, J.

This was an action to recover of defendants a Eord automobile. Tbe ancillary proceeding or provisional remedy of claim and delivery was resorted to, and tbe Eord automobile seized, and defendants gave replevin or undertaking as required by tbe statute. C. S., 836.

Plaintiff prayed, in substance, that be be declared tbe owner and entitled to tbe immediate possession of a Eord car, describing it, and that be recover of tbe defendants J. M. Strickland and tbe Texas Oil Company, and their surety, M. J. Hedrick, tbe cost of this action, to be taxed by tbe clerk; but if for any reason tbe possession of tbe said Eord car cannot be bad, then tbe plaintiff prays tbe court for judgment against tbe said parties in tbe amount of $250, together with tbe cost, etc., and for such other and further relief as tbe plaintiff is entitled.

Tbe issues submitted to tbe jury, and their answers thereto, were as follows :

> “1. Is tbe plaintiff, Garland Poison, tbe owner of tbe Eord car, as alleged in tbe complaint? Answer : ‘Yes.’

> “2. What is tbe value of tbe car? Answer: ‘$250.’ ”

These were tbe material issues raised by tbe pleadings and prayers of plaintiff.

A judgment was rendered on tbe verdict, February Term, 1926: “That tbe plaintiff recover of tbe defendants tbe Eord automobile described in tbe pleadings, ■ and in tbe event actual delivery of said automobile cannot be made to tbe plaintiff, then plaintiff shall have and recover of tbe defendants and M. J. Hedrick, surety on their replevin bond, tbe value thereof, $250, and tbe costs of this action.” It may be noted that M. J. Hedrick was not made a party to tbe action.

At October Term, 1926, tbe plaintiff made a motion that tbe action be reinstated on tbe docket of tbe court, and an issue as to damages for tbe deterioration and detention of tbe car be submitted to tbe jury — tbe facts in respect of tbe damages to tbe property not being known to tbe plaintiff in tbe action; and tbe fact of tbe damages becoming known to tbe plaintiff only after execution issued on tbe judgment for tbe possession *301of the property, and the property placed in the hands of the plaintiff, when he had his first chance to know the fact of damage by reason of deterioration and detention.

Defendants contend that plaintiff’s position is untenable; that final judgment had already been rendered, based upon the issues submitted at the trial by the court, without objection upon the part of the plaintiff, and the case had gone off the docket.

The plaintiff could have retained the action on the docket to determine “if delivery can be had, what were plaintiff’s damages for deterioration and detention.” C. S., 836; Moore v. Edwards, 192 N. C., p. 446. This aspect was entirely overlooked and judgment was for the recovery of the Eord automobile, or its value and costs. See Trust Co. v. Hayes, 191 N. C., p. 543, as to form of judgment in claim and delivery proceeding. C. S., 610.

> “A judgment is either interlocutory or the final determination of the rights of the parties in the action.” C. S., 592.

A judgment is decisive of the points raised by the pleadings, or which might be properly predicated upon them, and does not include matters which might have been brought in, but which were not joined or embraced in the pleadings.

The judgment is final in the present action, in so far as the pleadings and issues are determinative of the facts in dispute. The court below was without power to make the 'order to reinstate on the trial docket. O. S., 600, allows a judgment, within one year after notice thereof, to be set aside for mistake, inadvertence, surprise, or excusable neglect. See Foster v. Allison Corp., 191 N. C., p. 166; 44 A. L. R., p. 610.

It may be noted that where a separate action was instituted under similar facts as here, we said, in Moore v. Edwards, supra, at pp. 448-449: “"We can find no statutory provision prohibiting separate actions in a case of this kind. It is, no doubt, better practice to try out the entire controversy in one action. ... 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 cost, 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.” McInturff v. Gahagan, ante, p. 147.

Eor the reasons given, the judgment below is

Reversed.