#### In re R. J. BAKER.

(Filed 27 February, 1924.).

Appeal and Error — Municipal Corporations — Cities and Towns — Condemnation of Bands — Nonsuit—Judgments!—Fragmentary Appeal.

No appeal to tbe Superior Court lies by tbe respondent in proceedings to condemn bis lands by a city for street purposes until tbe town bas affirmed tbe report of tbe commissioners appraising tbe value. Upon an appeal, tbe city may take a voluntary nonsuit upon payment of costs where no counterclaim bas been pleaded by tbe respondent and be bas set up no equity in tbe matter tbat will entitle bim to affirmative relief.

Appeal by Baker from Kerr, J., at October Term, 1923, of IIeeteoed.

In September, 1919, tbe mayor and board of commissioners of Ahos-kie instituted a proceeding to condemn a strip -of tbe property of E. J. Baker, 50 feet wide and 70 feet deep, in order to connect Hayes Avenue and Second Street of tbe town, by condemning said property, and tbe board of commissioners appointed a committee to make tbe appraisement, and they reported tbat they agreed tbat tbe condemnation was’ necessary for said purposes and tbat tbe value of tbe property was $1,250. From tbe above finding of tbe board and valuation, Baker gave notice of appeal to tbe Superior Court of Hertford. Tbe case received no action in tbe Superior Court until October Term, 1923, E.’J. Baker having died in tbe meantime. At October Term, 1923, of Hertford, bis personal representative and heirs at law having been made parties, tbe following judgment was rendered by Kerr, J.: “It appearing to tbe court tbat tbe petitioner, tbe town of Ahoslde, is not in immediate need *258of tbe land described in the petition, and never having used or exercised any authority or acts of occupation over said land, and whatever interest or title the said town of Ahoskie may have acquired by reason of said condemnation proceedings it now relinquishes the same, and such rights and interests now revert in fee simple to R. J. Baker and his heirs forever. On motion of W. R. Johnson, attorney of the town of Ahoskie, petitioner, it is considered, ordered, and adjudged that the condemnation proceedings in this action be and the same is hereby dismissed by the court. It is further adjudged that the town of Ahoskie pay the costs, to be taxed by the clerk of the court.” The respondents appealed.

Walter R. Jolmson for town of Ahoskie.

John B. Vann and D. 0. Barnes for appellant.

Clark, C. J.

There was no trial, judgment of condemnation or affirmation in this case by the town of Ahoskie or in the Superior Court. There was a proceeding begun for condemnation and a report of the commissioners appointed, that they thought that the condemnation should be made and that the value of the property was $1,250. An appeal was taken from this in October, 1919, but it was premature for there was no judgment of the board from which the appeal could be taken. C. S., 1723. It pended in the Superior Court for four years, and then the proceeding was abandoned by the town by entry of a non-suit, as it had a right to do.

In R. R. v. R. R., 148 N. C., 64, it was held: “Neither party is entitled to trial by jury until the coming in of the report and after its confirmation.” The proceedings were entirely irregular, and at October Term, 1923, the town made a motion of nonsuit and discontinued the proceeding. The court refused to proceed with the case on this record, allowed the discontinuance or nonsuit, and properly adjudged the costs against the town. The appellant admits in his brief that the appraisement had not been reported to the board of commissioners of the town and confirmed by them. The appellant’s brief says that he moved to “allow the report of the board of appraisers to be confirmed.” In Cahoon v. Brinkley, 168 N. C., 258, it is said: “The plaintiff had a right to submit to a judgment of nonsuit, inasmuch as no verdict had been rendered.”

It does not appear in fact that anything has been done except the order for an appraisement and a report by them which, without confirmation by the board, was improvidently appealed to the Superior Court, and after sleeping there for four years, the town asked to have the action dismissed at its own cost.

*259Tbe court found as a fact, as set out in tbe record, that tbe town bas never been in possession of tbe. strip of land, and bad never exercised any ownership or authority over it, and there is nothing in tbe record showing any judgment or confirmation by tbe commissioners of tbe town which conferred any interest or lien in tbe land or authority over it against tbe respondents. Tbe respondent bad appealed, it is true, but be bad set up no counterclaim, and there was no equity involved. Tbe towm bad a right to take a nonsuit in tbe proceeding upon payment of tbe costs.

Affirmed.