Opinion
38362.
DECIDED JULY 1, 1960. REHEARING DENIED JULY 15, 1960.
Condemnation. DeKalb Superior Court. Before Judge Vaughn. April 18, 1960.
Eugene Cook, Attorney-General, Carter Goode, Paul Miller, Assistant Attorneys-General, William M. Mallet, Deputy Assistant Attorney-General, George P. Dillard, for plaintiff in error.
Davis Stringer, contra.
An appeal by a condemnor from the assessors' award to a jury in the superior court is valid when the amount of the assessors' award is properly paid, or tendered into the registry of the court within the statutory period in which such appeals are allowed.
DECIDED JULY 1, 1960 — REHEARING DENIED JULY 15, 1960.
The State Highway Department of Georgia filed in the Superior Court of DeKalb County, Georgia, a proceeding in rem to condemn certain described lands, designating Jesse Draper, Clarence Knowles, Thomas F. Byrd and Mary Lou Cowan as persons probably having an interest in said lands so condemned, and prayed that these named defendants be required to come in and asserts their title or their rights in and to said lands, and otherwise to take appropriate action as to their rights or interest in said matter. Assessors were duly appointed, met and determined on an award which was filed in the office of the Clerk of the Superior Court of DeKalb County, Georgia, on March 10th, 1958; on the same date an order was taken making the award of the assessors the judgment of the court. On March 14, 1958, the condemnor filed its appeal from the assessors' award to a jury in said county and in said court; on March 20, 1958, the amount of the assessors' award was deposited in the registry of the court by the condemnor. On February 8, 1960, and after the award money had been claimed and paid over to them, the condemnees filed their motion to dismiss the appeal on two grounds, the first ground being subsequently abandoned, and the matter proceeded to a hearing upon the second contention, i.e., that the deposit of the award in the registry of the court was not made prior to the filing of the appeal although both were accomplished within the statutory period allowed for appeal in such cases. The trial judge sustained this contention and dismissed the condemnor's appeal. To this ruling the condemnor excepted and assigned error in the Supreme Court, which transferred the case here.
1. Under the decisions in Woodside v. City of Atlanta, 214 Ga. 75 ( 103 S.E.2d 108), and State Highway Dept. v. Wilson, 98 Ga. App. 619 ( 106 S.E.2d 544), as construed by the Supreme Court in State Highway Dept. v. Hendrix, 215 Ga. 821 ( 113 S.E.2d 761), an appeal by a condemnor from the assessors' award to a jury in the superior court is valid only when the amount of the assessors' award is properly paid or tendered into the registry of the court within the statutory period in which appeals are allowed. The question here to be decided is whether or not an appeal is valid when the appeal is filed before the amount of the assessors' award is paid into the registry of the court (both having been accomplished within the statutory period allowed in such cases for appeal).
While the appeal as originally filed in this case, under the above decisions was invalid and subject to motion to dismiss, such defect could have been waived by the condemnees by failing to properly object before a verdict by a jury. The jury's verdict, as with other amendable defects in pleadings, would forever cure such defect. The defect in the appeal as originally filed, being one that would be cured by verdict, was amendable, and the payment of the assessors' award into the registry of the court within the statutory period allowed for same was tantamount to an amendment, and when the appeal was thus amended, it was not subject to the condemnees' motion to dismiss.
Accordingly the trial court's judgment sustaining the condemnees' motion to dismiss must be
Reversed. Felton, C. J., and Bell, J., concur.