dissenting.
In my judgment the situation presented requires us to declare not what the “law of the case” as between the parties will be in the unlikely event petitioner ever seeks to relitigate the matters involved in this appeal, but what the law of this state is with respect to getting zoning board decisions reviewed in the Superior Court. That such information is sorely needed by respondents, the court below, and perhaps others, as well — and that its absence unjustly impeded petitioner’s effort to have the respondents’ decision expeditiously reviewed, and brought another meritless appeal to this Court — the record plainly shows. Too, the decision of the majority is based upon the unsound, though implicit, premise that the law requires us to restrict our view to just that little portion of the order that respondents appealed from and to validate the rest of the order, however invalid it may be, because petitioner abandoned its appeal with respect thereto. I know of no such law and if there was one it would not be in harmony with either nature or the rest of our jurisprudence. A branch doesn’t exist without regard to the tree it grows from; and striking the line and a half that the respondents object to from the order, while permitting the more grossly invalid remainder which it grew from and depends upon to stand, is an incongruity that my mind cannot reconcile. And since respondents are responsible for the invalid remainder, I can think of no just reason why reconciliation should be attempted.
The record plainly reveals that:
(1) At respondents’ instance the court dismissed petitioner’s petition for certiorari upon the foundationless misconception that a zoning board decision cannot be reviewed in the Superior Court, notwithstanding the filing of the statutory petition for certiorari, unless the zoning board members are also sued in a civil action and served with copies of the summons, and since the respondents had not been so served, the court had no jurisdiction over them.
(2) The court did have jurisdiction of respondents and their decision on petitioner’s special use application, since a *319petition for writ of certiorari and judicial review had been filed in court, as G.S. 160A-388(e) authorizes.
(3) The court being governed by the law, rather than its misunderstanding of it, did have the power to designate the dismissal of the petition as being without prejudice and to permit petitioner to file “another action,” even though doing so could have been of no benefit at all to petitioner.
(4) The few words in the order that respondents complain of, which state that the dismissal of petitioner’s petition for certiorari was “without prejudice to the commencement of a new action by Petitioner based on the same claims within 30 days,” are not independent and self-sustaining as a whole; but, like the tail of a kite, they exist only because of the rest of the order, and since the order cannot stand because it is patently and totally erroneous, the few words respondent appealed from fail along with the rest.
(5) Respondents’ position in the trial court was totally without merit, and they had no proper basis for appealing to this Court.
In our jurisprudence, from the earliest times, certiorari has been understood as being a substitute for appeal. Gidney v. Hallsey, 9 N.C. 550 (1823). McIntosh N.C. Practice and Procedure in Civil Cases §§ 705, 706 (1929). It has been so considered and used in reviewing zoning board decisions for generations. In re Pine Hill Cemeteries, Inc., 219 N.C. 735, 15 S.E. 2d 1 (1941). From the very nature of things, appealing from a zoning board or any other inferior tribunal while simultaneously initiating an original civil action in the reviewing court would be an incongruous absurdity that the law could not tolerate, much less require. In the only recorded instance in this state that I am aware of where appellate review of a zoning board decision was sought by a civil suit with summonses issued to the zoning board members, the Court noted the inappropriateness of such a proceeding before choosing to treat the improperly filed suit as a petition for certio-rari. Deffet Rentals, Inc. v. The City of Burlington, 27 N.C. App. 361, 219 S.E. 2d 223 (1975). In enacting G.S. 160A-388(e), which replaced a statute originally enacted in 1923, the Legislature understood all this and the simple, expeditious appellate and *320review procedure authorized and followed through the years should not be encumbered by trial judges requiring a purposeless, duplicating civil action to be filed.
Though under the peculiarly convoluted rules that govern repeated litigation between the same parties about the same matter the petitioner might very well be estopped at some future time to claim that the court below ever had jurisdiction of the respondents in this proceeding, we are under no such constraints. The court below did have jurisdiction of the respondents and sound judicial principles require us to so declare, it seems to me, lest other property owners seeking a judicial review of respondents’ decisions encounter the same misplaced obstructions that petitioner did.
My vote, therefore, is to dismiss respondents’ appeal and to reverse the judgment appealed from in its entirety.