#### BOARD OF TRANSPORTATION (formeriy State Highway Commission) v. ARTHUR HARRISON

No. 741SC323

(Filed 19 June 1974)

Appeal and Error § 63— certiorari improvidently issued — cause remanded

Cause is remanded to Superior Court for further proceedings where writ of certiorari was improvidently entered upon denial of plaintiff’s motions for dismissal and summary judgment.

On writ of certiorari to review an Order entered by Martin (Perry), Judge, 26 November 1973 Session of Superior Court held in Currituck County.

Plaintiff instituted this action seeking to enjoin defendant from barricading a roadway across defendant’s property. Plaintiff alleges the roadway has been dedicated to public use and maintained as a secondary public road by plaintiff. Defendant denied all material allegations of the complaint.

Plaintiff obtained a preliminary injunction preventing defendant from interfering with the use of the said roadway by plaintiff and the general public.

Plaintiff then filed a motion to dismiss the action under Rule 12(b) (6) (failure to state a claim upon which relief can be granted), and further moved under Rule 56 for summary judgment for plaintiff.

Judge Martin denied both motions and upon plaintiff’s petition, this Court issued a writ of certiorari.

Attorney General Morgan, by Assistant Attorney General Magner, for the State.

Twiford, Abbott & Seawell, by John G. Trimpi, for the defendant.

BROCK, Chief Judge.

It seems significantly strange that plaintiff would seek to dismiss its own lawsuit. Such a Rule 12(b) (6) motion becomes even more of an oddity when joined with the plaintiff’s motion for summary judgment in its favor.

In any event, after reviewing the record before us, we conclude that our writ of certiorari was improvidently issued. This *194cause is remanded to the Superior Court in Currituck County for such further proceedings as may he deemed appropriate.

Remanded.

Judges Parker and Baley concur.