SHARP, Justice:
At the outset we note that it is immaterial whether the proceeding before Judge Martin be considered (1) a pretrial hearing under G.S. § 136-108 (1965) or (2) a motion to dismiss, converted under G.S. § 1A-1, Rule 12(b) (1969) into a motion for summary judgment by the introduction of "matters outside the pleading." In either event, it was Judge Martin's function to decide all questions of fact and adjudicate Commission's controverted right...
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