This was a special proceeding, instituted under authority of ch. 48, Public Laws 1927, to condemn lands for park and recreational purposes in the Great Smoky Mountains of North Carolina. The jury of view made its award, from which the respondent appealed to the Superior Court, where the issue of damages was tried de novo before a jury at the November Special Term, 1933, Cowper, Special Judge, presiding.
Judgment was duly entered upon the verdict, it being provided in paragraph five of said judgment that "upon the payment into court by the petitioner of the sum of money aforesaid," the title to the lands described in the petition "shall eo instanti pass to and vest in the petitioner, . . . free and discharged of and from all adverse claims, liens, and encumbrances whatsoever, and the respondent and all other persons . . . are forever barred from claiming or asserting any manner of estate or interest in said lands, either legal or equitable, whatsoever"; and further, in paragraph seven, "that the items of taxes, insurance, and maintenance," incurred pendente lite, "are hereby expressly reserved to be hereafter passed upon and determined by the court."
Both sides gave notice of appeal from this judgment, but subsequently abandoned said appeals. On 30 April, 1934, the petitioner paid into court the amount of the award according to the terms of the judgment, which was accepted by the respondents.
Thereafter, at the May Term, 1934, the petitioner lodged a motion to have the court restrain the respondents from further claiming any amounts from petitioner for the items attempted to be reserved in the judgment. The respondent filed a counter-petition, and asked that the said amounts be determined and awarded. Whereupon, the court found *Page 349 certain facts from "the record of the trial of this cause at the Special October-November Term, 1933, of the Superior Court of Buncombe County," and granted the prayer of the petitioner. Respondent appeals, assigning error. The parties have assumed that by reason of the attempted reservation in paragraph seven of the final judgment entered at the November Special Term, 1933, the court retained jurisdiction to dispose of said alleged reserved matters by motion or subsequent petition in the cause. Moses v. Morganton,195 N.C. 92, 141 S.E. 484; 34 C. J., 825. The assumption is a nonsequitur. Sloan v. Hart, 150 N.C. 269, 63 S.E. 1037.
In the first place, the attempted reservation is in direct conflict with paragraph five of the judgment, which became immediately operative upon acceptance by the respondents of the moneys paid under the judgment, and thereby cut off any supposed reservation.
Secondly, the court was without authority to entertain either the motion of the petitioner or the counter-petition of the respondent. The former cannot be regarded as an action to remove cloud from title, nor the latter as a suit upon the judgment.
No rights were determined by the proceedings upon said motion and counter-petition, and none can be adjudicated here. The appeal will again be dismissed.
Petition allowed.