Appellant/condemnor filed its petition to acquire by condemnation title to a plot of land belonging to appellee, for a right of way for the state highway system of Georgia.
Appellant’s petition was an in rem action and the following parties were named as party condemnees: Great Southern Enterprises, Inc., owner of the land; Atlanta Federal Savings & Loan Association (hereinafter referred to as Atlanta Federal), who held title under two security deeds from Great Southern; thе Shaw Walker Company who was in possession by virtue of a lease; and Draper Owens Company, an agent entitled to commissions flowing from the lease.
Appellant/condemnor alleged the sum of $157,000 to be just and adequate compensation fоr the land taken. The superior court entered an order that the property described was within the bounds of the required right of way, was thereby condemned, and the $157,000 was paid into the repository of the court.
Great Southern, being dissatisfied with the estimated compensation, filed a notice of appeal pursuant to Code Ann. § 95A-610 (Ga. L. 1973, pp. 947, 1017). Shaw Walker filed'its application of payment for $42,500 as the value of its leasehold estate. Draper Owens filed for $4,516.87 as the value of its right to receive *711 сommissions for the remainder of the term of the lease. Atlanta Federal and Great Southern filed a joint application for payment, with $75,000 to Atlanta Federal and the remaining $34,983.13 going to Great Southern. These amounts totaled $157,000. (See Appendix.)
On August 9, 1974, the court entered an order for payment in which "Condemnees. . .consent hereto” and the condemnor did not oppose, making distribution of the state funds as listed above. The court order provided appellee’s acceptance of the funds would not prevent it from prosecuting its appeal to the superior court.
On its appeal Great Southern alleged that "the only issue to be determined is the value of its interest, and that it would be entitled to recover from condemnor. . .any аmount found by the jury. . .in excess of $109,983.13 (the amount paid to Great Southern in the court’s order for payment, which included $75,000.00 to Atlanta Federal as the value of their security deed interest).” Great Southern further contended that "it [would be] highly prejudicial and harmful to its interest to have the jury consider the value of any interest other than the interest of Great Southern. . .on its appeal.”
The appellant disagreed. It alleged the jury should determine the total value of the fee and the value of the interest of eаch individual condemnee, irrespective of the fact that no condemnee except Great Southern had appealed.
The court ruled that the jury should return two findings, one being the value of Great Southern’s interest and the other being the totаl value of the entire property. The jury found the total value of the fee to be $190,600 and the interest of Great Southern to be $158,000. The court’s judgment on the verdict gave Great Southern $48,016.87 — the difference between the $158,000 awarded by the jury and the $109,983.13 paid to Great Southern in the earlier "Order For Payment.” Of course this award of $48,016.87 in addition to the earlier amount of $157,000 paid into the repository of the court, required the appellant to pay a total amount of $205,016.87 which exceeded the total award of thе jury ($190,600) by $14,416.87. (See Appendix.)
*712 Appellant filed a motion for new trial or in the alternative to set aside judgment. They were overruled and denied. Appellant brings its appeal to this court. Held:
1. Appellant contends that the court erred in permitting two of the condemnee’s witnesses to testify as to market value of the subject property without properly qualifying them as experts, without laying a proper foundation for their testimony as non-experts.
The court did not make clear whether these witnesses werе permitted to testify as experts or non-experts. There was sufficient evidence presented to qualify them as experts, and sufficient data proved to show that both parties had the opportunity to form a correct opinion as a nоn-expert. The question of whether a witness is qualified to give his opinion as an expert is one for the court.
Braswell v. Owen of Ga., Inc.,
However, one need not be an expert to testify as to market value as it is in the nature of an opinion. Code § 38-1709. Thus a non-expert may give his opinion as to the market value of realty if he has had an opportunity for forming a corrеct opinion. Id. The determination of the amount of knowledge a witness must possess in order to testify as to value of realty must be left largely to the discretion of the court. The witnesses here having testified as to the value of the land in controversy and thе value of other realty in the vicinity, the court did not abuse its discretion in allowing the testimony to go to the jury, to be given such weight as they saw fit.
Central Ga. Power Co. v. Cornwell,
2. Appellant alleges the court erred in permitting a condemnor witness to respond to questions by counsel for Great Southern regarding "the prospective addition of a *713 second floor and thereby doubling the value of the subject property, without any showing of feasibility or probability of this hypothetical improvement.”
In determining just and adequate compensation for property taken by eminent domain, the jury may consider the value of the property for uses other than that for which it was being used at the time of the condemnation.
State Hwy. Dept. v. Robinson,
In the instant case .the counsel for condemnee asked the expert witness for condemnor: "Were you aware that this building, the foundation was built so that a second story could be added to the building?” The witness responded: "No, sir.” The ensuing questions wеre asked of the expert to attempt to show that this would enhance the value of the building. Five questions later, counsel for the condemnor objected to the line of questioning based on "a supposition.” The court let the evidence in that "thе foundation was so constructed that another floor could be added.” Further questioning along this line brought further objections as to "a hypothetical question on a factual situation that isn’t in evidence.” The court permitted the questioning to procеed, subject to later *714 connection — with a proper foundation. Our perusal of the record does not show a later connection and counsel for appellant has not directed our attention to such a foundation.
Where the сourt admits such evidence, over objection, and defers ruling, subject to later connection, it is incumbent upon the objecting party, if the evidence is inadmissible, to direct attention of the court thereto either before or at the close of testimony, and to move to exclude it. Upon his failure to do so he will be held to have waived his objection.
Black v. State,
3. It is evident that the judgment of the court awarded sums to the condemnees which totaled up to an amount which exceeded the verdict of the jury. A judgment must conform to the verdict. Code § 110-301. It also must follow the true meaning and intent of the findings of the jury.
King v. Cox,
The pleadings in the instant case established property interests in four condemnees. Three condemnees "consented” to the order for payment of the court, representing the monetary value of those interests — as it applied to the estimated total value of the property by the condemnor. However, Great Southern agreed that the amounts claimed by the other thrеe condemnees were correct and that only the amount claimed by itself was insufficient.
Thereafter, Great Southern urged upon the trial court a procedure which prevented relitigation of those amounts it consented to in the court order — insofar as it pertained to the other three condemnees. Appellant correctly foresaw the inconsistency that could arise by such procedure and brought it to the court’s attention. However, the court directed the jury to find "the value of *715 the whole property” and the "interest of Great Southern.” In appealing the amount due Great Southern, the only issue necessary to be litigated was the total amount of compensation due all condemnees for the amount satisfаctory to three of the four condemnees had already been ascertained and paid. The difference between the amounts paid to the three condemnees not appealing their award, and the total value of the prоperty would be the amount due Great Southern. The court erred in litigating the amount due Great Southern and the total amount due for the entire fee.
It may be argued that the verdict is inconsistent and repugnant. It is not. The jury’s verdict is compatible with the instructions given it by the court. They found the total value of the fee was $190,600, and the value of Great Southern’s interest was $158,000. These sums are neither inconsistent with, nor repugnant to each other. The judgment exceeds the verdict only when the earlier "Order For Payment” is incorpоrated into the jury verdict.
A judgment which is larger than the amount sued for is not void but is a mere irregularity and the excess sum may be reformed to conform the judgment to the verdict.
Johnston v. Sheppard,
We are aware that the court is without authority to modify a substantial finding for one of the parties — Great *716 Southern. Great Southern consented to the amount due the other condemnees, and urged upon the court a procedure which would not permit those amounts to be relitigated on trial. If the jury had before it the interests claimed by all parties it could have made a complete adjudication. Great Southern will not be heard now to complain beсause the court adopted a procedure urged by it, and had previously consented to the division of the funds paid into the repository of the court. The jury finding of the total value of the fee of $190,600, minus the amounts previously paid to the other threе condemnees leaves the amount due Great Southern — $68,583.13. Of this amount they had received $34,983.13, leaving an amount due of $33,600. (See Appendix.)
Judgment affirmed on condition that within 30 days after return of the remittitur, the judgment is reformed in accordance with the above opinion, otherwise judgment is reversed.
Judgment affirmed on condition.
Appendix
EEPARTMEHT OF TRANS. ESTIMATED VALUE
$157,000.00
Court Order For Payment:
Shaw Wallter $42,500.00
Draper Owens 4,516.87
Atlanta Federal )983.13 Great Southern )r ’ 75,000.00 54,985.15
$157,000.00
*717 Jury Verdict:
Total value of property $190,600.00
Value of Great Sou. $158,000.00
-payment in Ct order 109.985,15
Court Judgment $ 48,016.87 48.016.87
Total cost of land to DOT $205,016.87
Total value of land by Jury 190.600.00
EXCESS JUDGMENT $ 14,41b.fc>7
COURT OP APPEALS DECISION:
Total value awarded by Jury $190,600.00
Prepaid by DOT by Court Order
For Payment:
Shaw VfalKer $42,500.00
Draper Owens 4,516.87
Atlanta Federal 75.000.00
$122,016.87 122,016.87
Great Southern's interest: $ 68,585.15
Previously paid under Ct Order 34,985.15
Due Great Southern $ 33,600.00