Coffey Enterprises Realty Development v. Moreland

Full title: COFFEY ENTERPRISES REALTY DEVELOPMENT COMPANY, INC. v. MORELAND

Court: Court of Appeals of Georgia

Date published: Jul 10, 1981

283 S.E.2d 345 (Ga. Ct. App. 1981)

283 S.E.2d 345

Opinion

61823.

DECIDED JULY 10, 1981. REHEARING DENIED JULY 22, 1981.

Condemnation. Cherokee Superior Court. Before Judge Burtz, Senior Judge.

C. E. Thompson, for appellant.

Arthur K. Bolton, Attorney General, William C. Joy, Assistant Attorney General, William C. Harris, Staff Assistant Attorney General, for appellee.

SOGNIER, Judge.

Appellant condemnee brought this separate action against the Department of Transportation seeking to enjoin condemnation proceedings. Meanwhile, appellant appealed the condemnation suit to a jury.

The Department of Transportation filed a motion to dismiss and a verified answer pleading, inter alia, that appellant had an existing remedy within the condemnation proceedings.

All of the issues raised in appellant's petition could and should have been raised in the condemnation proceeding. A ". . . property owner is required to set up all available defenses in the condemnation proceeding instead of raising them by a separate suit." Pye v. State Hwy. Dept., 226 Ga. 389, 398 ( 175 S.E.2d 510) (1970); see also, Spell v. Haire, 233 Ga. 218, 219 ( 210 S.E.2d 729) (1974).

The trial court was correct in dismissing appellant's petition.

Judgment affirmed. Shulman, P. J., and Birdsong, J., concur.

SOGNIER, Judge.

DECIDED JULY 10, 1981 — REHEARING DENIED JULY 22, 1981.