The history of this litigation and the pertinent facts are set forth in the dissenting opinion of Chief Justice Mathews in this cause. We are of the view that the sole question presented in the petition for cer-tiorari is whether or not the lower court committed error when it denied the motion for summary final decree. Inasmuch as there appears to be a material issue of fact created by the complaint and the answer of the State Road Department, it would be improper to quash the order of the chancellor at this point in the litigation. Certio-rari, which is directed solely to the denial of a motion for summary final decree, is denied.
TERRELL, THOMAS and HOBSON, JJ., concur. MATHEWS, C. J., and SEBRING and ROBERTS, JJ., dissent.