Town of Newton v. State Highway Commission

• Decision Date: 05 October 1927
• Citation: 139 S.E. 613,194 N.C. 303
• Parties: TOWN OF NEWTON et al. v. STATE HIGHWAY COMMISSION.
• Court: North Carolina Supreme Court

139 S.E. 613

194 N.C. 303

TOWN OF NEWTON et al. v. STATE HIGHWAY COMMISSION.

Supreme Court of North Carolina

October 5, 1927

On petition to reopen decree. Petition dismissed.

For former opinion, see 194 N.C. 159, 138 S.E. 601. See, also 192 N.C. 834, 134 S.E. 483.

This is a petition made by both plaintiffs and defendant in the above-entitled cause.

W. C Feimster, of Newton, W. A. Self, of Hickory, Wilson Warlick of Newton, and Clyde R. Hoey, of Shelby, for plaintiffs.

Charles Ross, Asst. Atty. Gen., for defendant.

CLARKSON J.

The joint petition made by both plaintiffs and defendant is as follows:

"First. That, in the opinion filed by this court on the 25th day of June, 1927, the defendants were enjoined from abandoning the existing road in Catawba county, designated as a portion of state highway No. 10, as now located and maintained.

Second. That, in a suit lately pending in Catawba county, between the same parties litigant, and involving the building of certain state highways in said county, all matters in controversy between the parties were amicably settled, subject to the approval of the court, and an agreed judgment was entered, copy of which is annexed hereto and made a part of this petition.

Third. That it is the desire and intention of the parties that the route from Catawba river to Newton, described in said agreed judgment and shown on the map annexed hereto, shall, when completed, be substituted for the existing and maintained location of route No. 10, and, in order that this agreement may be carried out, your petitioners are advised and believe that it will be necessary that the injunctive relief granted by the court on the 25th day of June, 1927, be modified.

Wherefore your petitioners now pray and move the court that the said cause be reopened by this court, and that the injunctive relief therein granted be modified to such extent as may be necessary to permit the agreed settlement between the parties to be carried out."

Const. N.C. art. 4, § 8, is as follows:

"The Supreme Court shall have jurisdiction to review, upon appeal, any decision of the courts below, upon any matter of law or legal inference. And the jurisdiction of said court over 'issues of fact' and 'questions of fact' shall be the same exercised by it before the adoption of the Constitution of one thousand eight hundred and sixty-eight, and the court shall have the power to issue any remedial writs necessary to give it a general supervision and control over the proceedings of the inferior courts." C. S. § 1411.

"Sec. 9. The Supreme Court shall have original jurisdiction to hear claims against the state, but its decisions shall be merely recommendatory; no process in the nature of execution shall issue thereon; they shall be reported to the next session of the General Assembly for its action."

In Railroad v. Horton, 176 N.C. at page 117, 96 S.E. 955, it is held:

"This court, having certified its opinion and remanded the case to the court below, is without jurisdiction to make any orders therein. It might have been brought before this court by petition to rehear, if filed in 40 days after the opinion, in compliance with rule 52 of this court (174 N.C. 841), but this was not done."

:

"This court is solely an appellate court, except as to claims against the state; and, when a decision on appeal has been rendered and certified, the jurisdiction of this court is at an end. James v. Railroad, 123 N.C. 299 [31 S.E. 707]; Finlayson v. Kirby, 127 N.C. 222 [37 S.E. 223]; White v. Butcher, 97 N.C. 7 [2 S.E. 59]."

See Const. N.C. art. 4, §§ 8 and 9, supra; Cooper v. Commrs., 184 N.C. 615, 113 S.E. 569; Dredging Co. v. State, 191 N.C. 243, 131 S.E. 665; Rules of Practice in the Supreme Court, rule 44, in 194 N.C. ___. See, also, annotation under C. S. § 1419.

Under the well-settled law of this jurisdiction, this court cannot entertain the...