Opinion
45443.
SUBMITTED JULY 6, 1970.
DECIDED OCTOBER 2, 1970.
Condemnation of land. DeKalb Superior Court. Before Judge Dean.
Zachary, Hunter, Zachary Bowden, John Calvin Hunter, A. Mims Wilkinson, Jr., for appellant.
Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Richard L. Chambers, Assistant Attorney General, William B. Brown, E. J. Summerour, for appellee.
Appeal in this case was taken from a judgment from the DeKalb Superior Court which sustained the condemnor's motion to dismiss the condemnee's notice of appeal to a jury, sustained the condemnor's motion for a judgment on the pleadings and entered a final judgment against the condemnor in the amount of $2,600. The case was originally brought to the Supreme Court which held that the appellant failed to raise a constitutional issue with regard to Sections 7 and 10 of the 1961 Act as amended, Ga. L. 1961, pp. 517, 525; 1962 Ex. Sess. Sept., pp. 37, 46 ( Code Ann. § 36-1307), and Ga. L. 1961, pp. 517, 528 ( Code Ann. § 36-1310). There being no constitutional question, the case was transferred to this court. Held:
The condemnation proceeding was brought on behalf of the State Highway Department under the provision of Code Ann. Ch. 3613 to acquire fee simple title to a right of way for a certain state-aid road. Pursuant to the provisions of the law, condemnor deposited a sum of money ($2,600) estimated to be just compensation for the land taken. See Code Ann. § 36-1303 (Ga. L. 1961, pp. 517, 520; 1962 Ex. Sess., Sept., pp. 37-44; 1963, p. 124). Further pursuant to the Act, advertisements were published in the official newspaper of the county on April 17 and 24, 1969. See Code Ann. § 36-1305 (7) (Ga. L. 1961, pp. 517, 522; 1962, Ex. Sess., Sept., pp. 37, 45). The condemnee filed his answer and appealed for a jury trial on May 16, 1969.
Code Ann. § 36-1310 requires that the notice of appeal by the condemnee for a jury trial on the issue of compensation must be filed "not later than 15 days following the date of the last advertisement of the cause in the official newspaper of the county." See State Hwy. Dept. v. Kirchmyer, 118 Ga. App. 652 ( 165 S.E.2d 170). Code Ann. § 36-1307 further sets out that, where no appeal is filed as provided for in the Act, upon the condemnor paying all accrued court costs (which was done in this case) "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."
Since the appellant's constitutional attack failed, the trial court properly applied the pertinent provisions of Code Ann. Ch. 3613 and entered judgment as therein provided.
Judgment affirmed. Bell, C. J., and Whitman, J., concur.