9 Ga. App. 526 | Ga. Ct. App. | 1911
According to the record, the "Valdosta, Moultrie & Western Bailroad Company, being unable to agree with Aider-man, who owned certain real estate over which the company desired to construct its railroad, instituted proceedings in accordance with the provisions of sections 5208, 5209, 5218, 5220, and 5221 of the Civil Code (1910). TJpon the hearing before the assessors they returned a finding fixing the value of the land at $225, awarding no consequential damages, and deducting nothing for consequential benefits. From this award Alderman entered an appeal to a jury in the superior court. He, however, did not give any bond or security, and when the case was sounded for trial the judge of the superior court sustained a motion to dismiss the appeal, based upon the ground that no appeal bond had been given.
The only question presented for our determination is whether one who is dissatisfied with an award in a proceeding brought for the purpose of condemning private property for a public use, and who desires to enter an appeal to the superior court, is required to give bond and security as in other cases of appeal. In our opinion it is unnecessary to give bond in an appeal from the award of assessors in condemnation proceedings. The learned judge of the superior court who presided in this ease, no doubt, entertained the opinion that provisions of section 5228 of the Civil Code (1910), which gives the right of appeal to the superior court in condemnation proceedings, were to be construed as making the same requirements as are made in regard to the appeals mentioned in sections 4998 and 4999, and that, as a bond is required in these cases, a party dissatisfied with an assessor’s award should likewise give bond when entering an appeal therefrom. We confess that at first we were not free from doubt-upon the subject. There is, howéver, a plain reason why, in appeals generally, the appellant should' give bond and security for the eventual condemnation money, while there is no substantial reason-why any party who desires to appeal from the award of assessors in condemnation proceedings should be required to give bond for the eventual condemnation money.
In a case where the public corporation, in order to proceed with the work, had paid the original award, and the landowner had in the meantime become insolvent, a judgment against him for the difference between the amount paid him by the corporation and the amount of the jury’s verdict might be barren of
As marking another difference between the appeal provided in cases of condemnations (Civil Code of 1910, § 5228), and the appeals provided for in chapter 1 of the second title of the Code of Practice, the latter must be entered within four days after the adjournment of the court in which the judgment was rendered, and express provision is made for security and the payment of costs (except in the case of executors, etc.); or, in case of inability to pay costs and give security, an affidavit in forma pauperis; supplies their place. The appeal in condemnation proceedings may be entered in writing within ten days from the time the award is filed, and no reference is made either to the payment -of costs, the giving of a bond, or the substitution of an affidavit in forma pauperis; and in section 5246 it is expressly provided that a county may decline to accept the land which it seeks to condemn, in case the final judgment fixing the damages is for any reason unsatisfactory to the county authorities, by merely paying the costs. Not
In those cases where the party seeking to condemn does not wish to proceed with the work, security would he unnecessary, because such party could not obtain the title or use of the land until the final judgment entered upon the verdict of the jury had been complied with; and the legislature seemed to think it just to let the landowner appeal without security, although there might arise cases in which the condemning party, having paid the full amount awarded by, the arbitrators in order to proceed with the work, would find himself in a position where, by reason of the landowner’s insolvency, he could not collect the judgment which the jury might award him on the trial of the landowner’s appeal, for, even on the landowner’s appeal, the award of the arbitrators might be lowered. Judgment reversed.