Opinion
37969.
DECIDED JUNE 30, 1960.
Condemnation. Douglas Superior Court. Before Judge Foster. June 19, 1959.
Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, Eugene B. Brown, Walter B. Fincher, for plaintiff in error.
George T. Bagby, William Hall, contra.
1. In a condemnation case "tender of the amount of the award of the assessors to the apparent or ostensible owner of the land involved is not a condition precedent to the condemnor's right to enter an appeal to a jury, when the amount of the award has been paid into the registry of the court within the time provided by law for the filing of an appeal."
2. Refusal by the clerk of the superior court to pay over the amount awarded to the condemnee which had been paid to such clerk by the condemnor in connection with its appeal for a jury trial is not a proper ground for dismissal of such appeal because "where the condemnor pays the amount of the award of the assessors into the registry of the court as provided by Chapter 36-11 of the Code, the condemnor is not thereafter concerned with its distribution," and, further, such condemnor is not responsible for the clerk's actions.
DECIDED JUNE 30, 1960.
The State Highway Department commenced a proceeding in rem to condemn certain land allegedly owned by T. B. Taylor. The award of the assessors was filed in the Superior Court of Douglas County on December 1, 1958, finding total compensation payable in the sum of $22, 515. A check in this amount dated December 2, 1958, prepared in the office of the Board of Commissioners of Roads and Revenues of Douglas County was deposited in the office of the clerk of the superior court of that county prior to or contemporaneously with the appeal of the State Highway Department to the court on December 3, 1958. The clerk presented the check to the bank for payment and it was paid on December 11, 1958. On March 16, 1959, the condemnee first demanded payment of the fund from the registry of the court. The clerk refused to make payment except by order of the court, which order was issued and payment made on March 18. Meantime, on March 17, the condemnee moved to dismiss the appeal on the following grounds: "2. Condemnor did not before or contemporaneously with filing such appeal or at any other time, tender or pay to condemnee the assessed value of the property involved in this proceeding as fixed by said judgment. 3. Condemnor did not before or contemporaneously with filing such appeal pay into the registry of this court the adjudicated value of said property after a refusal by condemnee to accept tender thereof. 4. Such tender or such payment of the adjudicated value of said property was a condition precedent to the right of condemnor to appeal to a jury in this court. 5. Condemnee on March 16, 1959, made a request on the clerk of this court for payment of the adjudicated value of said property, which request was refused. 6. Condemnor cannot legally refuse to pay unto condemnee the amount awarded to condemnee for said property and at the same time insist upon the right to take it from him."
The judge of the superior court sustained the motion and dismissed the appeal, on which judgment error is here assigned.
1. This court certified to the Supreme Court certain questions in connection with the decision in this case which appear in State Highway Dept. v. Taylor, 216 Ga. 90 ( 115 S.E.2d 188). That court stated, in answer to the first question that, "tender of the amount of the award of the assessors to the apparent or ostensible owner of the land involved is not a condition precedent to the condemnor's right to enter an appeal to a jury, when the amount of the award has been paid into the registry of the court within the time provided by law for the filing of an appeal." Accordingly, grounds 2, 3 and 4 of the motion to dismiss are without merit.
2. As to grounds 5 and 6, it is of course true that the condemnor cannot insist upon its right to take the property and at the same time refuse to pay the amount awarded to the condemnee. In answer to the third certified question in this case the Supreme Court stated: "Where the condemnor pays the amount of the award of the assessors into the registry of the court as provided by Chapter 36-11 of the Code, the condemnor is not thereafter concerned with its distribution." In this answer and also in State Highway Dept. v. Hendrix, 215 Ga. 821, 825 ( 113 S.E.2d 761) the court cites Code § 36-1113 providing in part as follows: "If any person, after judgment of condemnation, shall desire to come in and be heard on any claim to the fund or to any interest therein, he shall be allowed to do so. After condemnation is had and the fund paid into the registry of the court, the petitioner shall not be concerned with or affected by any subsequent proceedings unless upon appeal from the verdict or award." The judge of the superior court wherein the fund is paid thus has jurisdiction to determine to whom the fund shall be paid, and this is not a matter which concerns the condemnor. The facts of this case show that the condemnor did not refuse to pay the amount awarded, for which reason grounds 5 and 6 of the motion to dismiss the appeal are without merit. No other grounds of dismissal appear from this record to have been urged before the trial court, and accordingly no other will be considered here.
It was error for the judge of the superior court to dismiss the appeal of the condemnor for the reasons stated.
Judgment reversed. Townsend and Carlisle, JJ., concur.