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NC General Statutes

N.C. Gen. Stat. § 1-440.45 (2026)

When defendant prevails in principal action

✓ current as of July 2026
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(a) If the defendant prevails in the principal action, or if the order of attachment is for any reason dissolved, dismissed or set aside, or if service is not had on the defendant as provided by G.S. 1-440.7,

(1) The defendant shall be entitled to have delivered to him

a. All bonds taken for his benefit whether filed in the proceedings or taken by an officer, and

b. The proceeds of any sales and all money collected, and

c. All attached property remaining in the officer's hands, and

(2) Any garnishee shall be entitled to have vacated any judgment theretofore taken against him.

(b) Either the clerk or the judge shall have authority, upon motion of the defendant or any garnishee, to make any such order as may be necessary or proper to carry out the provisions of subsection (a) of this section.

(c) Upon judgment in his favor in the principal action, the defendant may thereafter, by motion in the cause, recover on any bond  taken for his benefit therein, or he may maintain an independent action thereon. (1947, c. 693, s. 1; 1951, c. 837, s. 8.)

 

Notes of Decisions
Cited in 3 cases, 1954–1980 · leading case: Sturgill v. Sturgill, 272 S.E.2d 423 (N.C. Ct. App. 1980).
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Sturgill v. Sturgill, 272 S.E.2d 423 (N.C. Ct. App. 1980). · cites it 2× “Defendant cites in support of his argument G.S. 1-440.45 which states in part: “If the defendant prevails in the principal action, or if the order of attachment is for any reason dissolved, dismissed or set aside, or if service is not had on the defendant as provided by § 1-440.”
Brown v. Guar. Estates Corp., 80 S.E.2d 645 (N.C. 1954). “, supra; McIntosh: North Carolina Practice and Procedure in Civil Cases, section 235; 5 Am.”
Godwin v. Vinson, 119 S.E.2d 616 (N.C. 1961). “The procedure of defendant by motion in the cause to recover on the bonds taken for his benefit therein is authorized by the express language of G.S. 1-440.45 (c). Brown v. Estates Corp.”
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