Opinion
46243.
SUBMITTED MAY 10, 1971.
DECIDED SEPTEMBER 14, 1971. REHEARING DENIED SEPTEMBER 29, 1971.
Condemnation of land. Fulton Superior Court. Before Judge Pye.
Weltner Crumbley, Charles L. Weltner, for appellant.
Katz, Paller Land, Israel Katz, for appellees.
Condemnor appeals from the dismissal of its appeal to a jury. For a complete statement of the rather involved history of this case, see Housing Authority of Atlanta v. Mercer, 123 Ga. App. 38 ( 179 S.E.2d 275).
The trial court did not err in dismissing the appeal to a jury. The law is clear that an unconditional tender into the registry of the court of the amount of the award is a condition precedent to such an appeal. Woodside v. City of Atlanta, 214 Ga. 75 ( 103 S.E.2d 108). The only exception is for road and street purposes. Code Ann. §§ 2-301 and 36-1303. See also Kreutz v. Housing Authority of Dublin, 107 Ga. App. 315 ( 130 S.E.2d 134); State Hwy. Dept. v. Hendrix, 215 Ga. 821 ( 113 S.E.2d 761); City of Atlanta v. Lunsford, 105 Ga. App. 247 ( 124 S.E.2d 493).
As the payment here was conditional and unavailable to the condemnee, it therefore did not operate as compensation for the taking under the rationale of the cases cited above. Therefore, the condemnor did not perform the necessary condition precedent to prosecute an appeal.
Judgment affirmed. Eberhardt and Whitman, JJ., concur.