116 Ga. App. 548 | Ga. Ct. App. | 1967
Lead Opinion
Condemnor brought this appeal from a judgment of the superior court based on a jury verdict. It
The statute creating the special master proceeding does not repeal other statutory provisions for the condemnation of property but is supplementary to and cumulative of them. Code Ann. § 36-602a. The trial of an appeal from the award of the special master in the superior court, which is a de novo investigation (Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 6 (3) (76 SE 387, AC 1914A 880); Code Ann. § 36-612 (a)), is a judicial proceeding governed by the rules applicable to ordinary suits in the jurisdiction. Western Union Tel. Co. v. Western & A. R. Co., 142 Ga. 532, 535 (83 SE 135); Ga. Power Co. v. Lightfoot, 97 Ga. App. 330 (103 SE2d 99). See State Hwy. Dept. v. Sumner, 216 Ga. 92 (3) (115 SE2d 189) and State Hwy. Dept. v. Hester, 112 Ga. App. 51 (143 SE2d 658).
The provision in Code Ann. § 36-615a that, “The tender, payment, or acceptance of the amount shall not prevent either party from prosecuting the appeal” applies only to the appeal from the award of the special master to the superior court. It does not apply to appeals from the judgment of the superior court after jury trial. An appeal from the judgment of the superior court to the Court of Appeals in a condemnation case is governed by the rules applicable to ordinary appeals. Western Union Tel. Co. v. Western & A. R. Co., 142 Ga. 532, 535, supra. It was the legislative intent that either party dissatisfied after a jury trial in a special master condemnation proceeding perfect an appeal from the judgment of the superior court “as in other cases at law.” See Code Ann. § 36-614a. The rule in this jurisdiction is that a voluntary payment of a judgment renders moot any question as to the validity of the judgment and cuts off the right of appeal. Keener v. King Hardware Co., 215 Ga. 577 (111 SE2d 215); Edwards v. Edwards, 212 Ga. 291 (92 SE2d 17); Drury v. Cameron & Barclay Co., 25 Ga. App. 15 (102 SE 373); Leverette v. Kilpatrick, 29 Ga. App. 333 (115 SE 34). See Kitchens v. State, 4 Ga. App. 440 (61 SE 736) and Ann. 39
The judgment of the superior court following the jury trial having been voluntarily paid by the condemnor directly to the condemnee the question of the validity of the judgment has been rendered moot.
The appellee’s motion to dismiss is granted and the appeal is
Dismissed.
Concurrence Opinion
concurring specially. On motion for rehearing I am convinced that we have not adequately discussed and answered two basic contentions of the appellant. The first contention is that the amount of the jury verdict over and above the special master’s award must be paid in order to appeal, as the condemnor can only appeal after paying “just and adequate compensation” as provided by the Constitution. Citing Art. I, Sec. Ill, Par. I of the Constitution (Code Ann. § 2-301); and Woodside v. City of Atlanta, 214 Ga. 75 (103 SE2d 108). The first contention has been decided adversely to appellant in the early case of Oliver v. Union Point & W. P. R. Co., 83 Ga. 257 (9 SE 1086) cited and followed in Woodside v. City of Atlanta, supra, in which former case it was said: “The method of ascertaining what is just and adequate compensation, is subject, within certain limits, to legislative discretion. To such proceedings in the exercise of the power of eminent domain the constitutional guaranty of trial by jury does not extend, there being in our Constitution no express provision so extending it. Mills Em. Dom. § 91, and cases cited; Proffatt
The second contention is that the condemnor, in order to retain the property for the purpose of carrying on its work, was required by Section 15 of the Act of 1957 (Ga. L. 1957, pp. 387, 396; Code Ann. § 36-615a) to pay the excess of the jury verdict over and above the special master’s award (which had already been paid).
The pertinent provisions of said section are as follows: “If
If the language in the statute should be construed to mean that the condemnor, in order to proceed with the work pending appeal to this court, must pay the amount of the judgment on the jury verdict, then in my ■ opinion we would be wrong in the conclusion reached in this case. One of the purposes of this statute is to expedite the taking and the progress of the work for which the property is condemned. To require the condemnor to pay the judgment on the jury verdict in order to retain the property and continue with the work, and then dismiss the condemnor on the appeal to this court because the condemnor had met the requirements of the statute would be neither equitable, nor just, nor logical. However, I do not think that the language is subject to the construction placed upon it by the condemnor in the present case. This language only requires the condemnor, in order to retain the property, to pay the amount finally adjudged to be owing on a jury verdict, and this applies to the final judgment in the case after all appeals by either party are exhausted. There may be several appeals by both parties and several jury verdicts, some possibly for more and some possibly for less than the assessors’ award or special master’s award, as the case may be. There is nothing in .the language of the statute that would require payments and adjustment of payments in such a situation. The language here then must of necessity apply to the ultimate and final judgment in the case. It follows therefore that the condemnor in the present case was not required to pay the judgment on the jury verdict in order to proceed with the work pending its appeal to this court.
There being nothing in the statute or the Constitution of this State requiring the payment of the judgment on the jury ver