There is no such thing as an action for claim and delivery. Under our Constitution, Art. IV, sec. 1, there is but one form of action in civil cases. In that, many ancillary remedies may be asked, i.e., arrest and bail, claim and delivery, injunction, attachment, and appointment of receivers. These need not be asked, even if the party is entitled to them, Wilson v. Hughes, 94 N.C. 182, and if they are improperly asked they are simply denied or dismissed, but that does not affect the action itself, which goes on if the plaintiff is entitled to any other remedy. Deloatch v. Coman, 90 N.C. 186; Morris v. O'Briant,94 N.C. 72. This is the broad distinction between the present system of procedure and that formerly in force. Under the old system, all these were distinct forms of action, and so much regard was paid to the mode in which relief was asked that however meritorious the cause of action, a mistake in the exact manner of seeking the remedy sent the (420) plaintiff out of court. The common sense of mankind and the intelligence of the age have caused the old system to be abrogated in the large majority of states and countries of the English-speaking race — indeed it was never in force in any other. It was abolished in this State over a quarter of a century since.
The gist of the present action is that the defendant was indebted to the plaintiff $75, due for rent. Incidentally the plaintiff asked, or might be construed as asking, for claim and delivery of the crop, which is not alleged to be worth "not more than fifty dollars." The justice of *Page 227 the peace properly ignored the ancillary remedy of which he would have had no jurisdiction, and rendered judgment for the amount of rent found to be due, $36.87. Starke v. Cotten, 115 N.C. 81. In that case the action was for $70.80 for "damages for breach of a contract" as to the delivery of certain tobacco, and to subject the proceeds of the sale of tobacco. It was held that while the justice had no jurisdiction of the latter, "the damages for breach of contract" being ex contractu, the justice properly retained jurisdiction and rendered judgment for the debt. It is true that in the present case the summons recites that the defendant "wrongfully retains" the crop on which $75 is due for rent. The same words were used in Deloatchv. Coman, supra, and the Court held that this was the basis for claim and delivery, Code, sec. 322 (2), but that the justice retained jurisdiction to render judgment for the debt, less than two hundred dollars, though he did not have power to grant the claim and delivery for the property, which was in excess of $50.00.
In the present case the court below erred in dismissing the action, and that is the only point before us. To prevent misconception, however, we notice that the justice not only gave judgment for the debt and adjudged that it was due for rent — as he might have adjudged that it was due by open account, or on a bond, or on a promissory (421) note — but he went further and adjudged that it was a lien on the crop. This was unnecessary, and must be held mere harmless surplusage, as the statute made it a lien. Code, sec. 1754. The lien was the result, and no valid part, of the judgment declaring the amount of the indebtedness and that it was due for rent. Code, sec. 1754; Wilson v.Respass, 86 N.C. 112. There is analogy on the criminal side of the docket, where disfranchisement of one convicted of a felony is held to be the effect of the sentence, and no part of it. S. v. Jones, 82 N.C. 685. So here the lien on the crop is the effect, but no part of the judgment that the defendant is indebted in the amount named for rent. The plaintiff did not ask for a judgment declaring it a lien, and, if he had, it would not have destroyed the jurisdiction to grant the valid demand for judgment for the sum due. Because a judgment for the amount due for rent ascertains the extent of the lien on the crop, does not throw every petty dispute about rent into the Superior Court. This would virtually be a denial of justice in the majority of instances, for the amount would usually not justify seeking relief in that forum. In truth, the lien exists by virtue of the statute before and independent of the judgment, and even if no judgment is ever rendered. The judgment simply ascertains the amount of rent due.
Reversed. *Page 228 Cited: Holden v. Warren, 118 N.C. 327; McGehee v. Breedlove,122 N.C. 278; Kiser v. Blanton, 123 N.C. 403; Patterson v. Freeman,132 N.C. 359.
(422)