Summary
In State Hwy. Dept. v. Kirchmeyer, 114 Ga. App. 433, supra, it was held that at that time there had been no verdict and final judgment to support an appeal and, therefore, this court did not consider whether or not the trial court erred in denying the Highway Department's motion to dismiss the appeal of Kirchmeyer from the declaration of taking and the estimated value of taking and the estimated value of the property taken.
Summary of this case from State Highway Dept. v. KirchmeyerOpinion
42107.
SUBMITTED JUNE 7, 1966.
DECIDED SEPTEMBER 28, 1966. REHEARING DENIED OCTOBER 10, 1966.
Condemnation of land. Dade Superior Court. Before Judge Coker.
Arthur K. Bolton, Attorney General, Richard L. Chambers, Assistant Attorney General, F. H. Boney, Deputy Assistant Attorney General, for appellant.
Cook Palmour, A. Cecil Palmour, for appellee.
The refusal of the judge of the superior court to dismiss an appeal by the condemnee to a jury in a condemnation suit brought under the Act approved April 15, 1961 (Ga. L. 1961, pp. 517, 529) as amended by the Act approved October 8, 1962 (Ga. L. 1962, Sept. Sess., pp. 37, 47; Code Ann. Ch. 36-13) is not such a judgment, ruling, or order as would have been a final disposition of the cause if it had been rendered as claimed by the appellant and will not support an appeal under Section 1 (a) (2) of the Appellate Practice Act of 1965 (Ga. L. 1965, p. 18); nor does it fall within the category of those judgments, rulings, and orders appealable under Section 1 (a) (3) of said Act.
SUBMITTED JUNE 7, 1966 — DECIDED SEPTEMBER 28, 1966 — REHEARING DENIED OCTOBER 10, 1966 — CERT. APPLIED FOR.
The State Highway Department of Georgia filed proceedings in rem for the condemnation of certain described lands of the appellee-condemnee under the provisions of the Act of 1961 as amended by the Act approved October 8, 1962 (Ga. L. 1961, pp. 517, 529; Ga. L. 1962, Sept. Sess., pp. 37, 47; Code Ann. Ch. 36-13). The trial court entered its rule nisi on March 19, 1964, providing for notice by publication in the official newspaper of the county for two consecutive weeks, beginning with the March 26, 1964 issue. On March 26, 1964, appellee was personally served with a copy of the petition, including the declaration of taking, the order of the court and a copy of the citation. After a hearing, the court entered a final order of condemnation on April 20, 1964. A certificate of the owner of the county's official newspaper certified the publications of the citation on March 27 and April 3, 1964. On April 30, 1964, appellee filed a notice of appeal from the condemnation order, to which appeal condemnor filed a general demurrer and a motion to dismiss, on the ground that it was filed later than the statutory 15 days maximum following the date of the last advertisement ( Code Ann. § 36-1310; Ga. L. 1961, pp. 517, 528). On September 23, 1965, appellee filed a demurrer to the motion to dismiss his appeal and also a plea to abate on the following grounds: (1) that "there is neither process, nisi, rule, nor citation bearing teste in the name or title of the judge of said court, issued pursuant to said petition or any relief prayed in connection therewith, requiring condemnee to answer, respond, show cause, or take any action in connection with said action; nor was there any precept, direction or order whatsoever, directed to the sheriff of said county or to his lawful deputies, or to any officer, for service of any petition, order, rule, or nisi; nor does there appear any waiver thereof. (2) The document signed by the clerk of the court under date of March 19, 1964 (entitled `Citation') does not bear teste in the name or title of the judge of said court; nor was same directed to the sheriff of said county or his lawful deputies, or to any-officer, for service." On September 27, 1965, appellee filed a plea to abate the proceedings and to quash the certificate of publication on the ground that Code Ann. § 36-1310 (Ga. L. 1961, pp. 517, 528), which establishes the time for appeal, violates the provisions of Art. I, Sec. I, Par. III of the Constitution of Georgia and Art. XIV of the Constitution of the United States in that it deprives appellee of property without due process of law. Appellee prayed that the portion of the order of April 20, 1964, reciting that service had been perfected, be vacated. Condemnor filed general demurrers to appellee's pleas to abate.
On October 22, 1965, the court entered an order to the following effect: That none of the dates of publication were the ones ordered by the court; that no copy of the newspaper, or the notice, was included; that the record does not show whether any notice was ever posted at the courthouse ( Code Ann. § 36-1305 (7)); that notice by publication should adhere strictly to the order or statute, its justification being difficult at best; that service by publication had not been perfected. However, this will not necessitate republication, since its only purpose was to alert the condemnee to appeal and, having filed his appeal, he waived the absence of notice and admitted the jurisdiction "as of that time." On October 25, 1965, the judge entered an order in which he overruled, as being moot, the condemnor's general demurrer to and motion to dismiss condemnee's appeal and its general demurrers to both of condemnee's motions to abate the action and sustained the condemnee's demurrer to the condemnor's motion to dismiss the appeal and both of condemnee's motions to abate the action.
On November 1, 1965, condemnee filed the following waiver of service: "Comes now R. C. Kirchmeyer, condemnee in the above-stated case, and without acknowledging the fact, existence or validity of any prior service, notice or process which might be claimed or contended for in this case, and expressly contending that no service, process or notice has been heretofore made or given in this case; hereby, on and as of this day specifically relieves the condemnor and the officers of the court from the necessity of service of the petition, process, declaration of taking, publication, and notice thereof; and requests that the above stated case be placed upon the calendar for trial at the December term, 1965."
The condemnor appeals from the rulings of the court in the above said orders of October 22 and 25, 1965. A motion to this court was made by the appellee to dismiss the appeal.
Since the order sustaining the pleas in abatement filed by the condemnee is not a final judgment (see Elliott v. Service Trust c., 107 Ga. App. 48 (2) ( 129 S.E.2d 203)), the question to be decided on the motion to dismiss the appeal in this court is whether the overruling of a general demurrer to, and a motion to dismiss, the appeal of the condemnee, as to the amount of the damages occasioned by the taking, to a trial by jury on the issue thus made by the appeal, is a decision which "if it had been rendered as claimed by the appellant" condemnor "would have been a final disposition of the cause or final as to some material party thereto." Section 1 of the Appellate Practice Act of 1965, Ga. L. 1965, p. 18 ( Code Ann. § 6-701).
The present condemnation suit was brought under the Act approved April 15, 1961 (Ga. L. 1961, pp. 517, 529) as amended by the Act approved October 8, 1962 (Ga. L. 1962, Sept. Sess., pp. 37, 47; Code Ann. Ch. 36-13) pursuant to which Acts a self-executing declaration of taking is filed with the petition of condemnation, which declaration contains a statement of the estimated value of the interest taken, the amount of which is deposited in court. See. 3 of the Act of 1961, as amended ( Code Ann. § 36-1303). If the condemnee desires to contest the estimated amount, he may file an appeal "at any time subsequent to the deposit of the fund into court, but not later than fifteen days following the date of the last advertisement of the cause in the official newspaper of the county as provided for in subparagraph 7 of Section 5 of this Act," and it is the duty of the court "to cause an issue to be made and tried by a jury as to the value of the property taken and the consequential damage as to the property not taken," and "when such an appeal has been filed, all subsequent proceedings thereon shall have the nature of a de novo investigation . . ." (Section 10 of the Act of 1961 ( Code Ann. § 36-1310)), and the "sole issue" on the appeal "shall be as to the amount of just and adequate compensation." Subparagraph 8 of Section 5 of the Act of 1961, supra. The "appeal," therefore, is the sole method of making an issue as to the amount of the damages occasioned by the taking so as to have the amount thereof determined on the merits before a jury rather than by the declaration of estimate. The filing of the appeal is somewhat analogous to the filing of an answer in an ordinary action. The dismissal of an answer is not a final judgment in the ordinary type of action. Chandler v. Southern Union Conference, 95 Ga. App. 66 ( 96 S.E.2d 621). The final judgment in such instance is the one entered upon the verdict or the judgment entered upon the default. While there is no provision for the rendering of a judgment in favor of the condemnor and against the condemnee on the dismissal of the appeal, here there is a provision for the entering of a judgment, which for all practical purposes takes the place of the ordinary judgment in the ordinary action. Section 7 of the Act of 1961, supra, provides: "No judgment of any court, nor order or ruling of the judge thereof, shall be necessary to give effect to the declaration of taking provided for in section 3 of the Act but the same shall be self-executing. If no appeal is filed, as hereinbefore provided for, the condemnor shall, at the next term of the superior court convening not earlier than fifteen days subsequent to the date of the last advertisement in the official newspaper of the county, as provided for in subparagraph 7 of section 5 of this Act, or at any time thereafter, pay all accrued court costs in said case to the clerk of the superior court in which the same is pending; at which time, the judge of the superior court shall enter up judgment in favor of the condemnee and against the condemnor for the sum of money deposited by the condemnor with the declaration of taking. If such sum has been withdrawn from the court by such condemnee, as provided for in section 3 of this Act, the clerk of the superior court shall mark such judgment satisfied; and if the condemnee has not withdrawn such sum, the said clerk shall immediately apply the same to the payment of such judgment and either transmit the same to such condemnee or cause him to be notified that he holds the same subject to his demand." The judgment provided for in this section, so far as the record discloses, has not been entered, and could not properly have been entered upon the present status of the record with the appeal still pending. In our opinion, the dismissal of an appeal under the Act of 1961 would not constitute a final judgment. It follows, therefore, that the appeal in the present case being based upon rulings and decisions of the trial judge which would not have been final if rendered as contended by the appellant, the appeal must be dismissed.
Appeal dismissed. Frankum, J., concurs. Felton, C. J., concurs in judgment only.