Opinion
39726.
DECIDED FEBRUARY 7, 1963.
Condemnation of land. Laurens Superior Court. Before Judge Ward.
H. Dale Thompson, for plaintiffs in error.
Wm. Malcolm Towson, contra.
"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. Code § 36-1113." State Highway Dept. v. Taylor, 216 Ga. 90 (3) ( 115 S.E.2d 188).
DECIDED FEBRUARY 7, 1963.
The Housing Authority of the City of Dublin, Georgia, filed a proceeding in rem under the provisions of Ch. 36-11 of the Code of 1933, as amended by an act approved January 13, 1938 (Ga. L. 1937-38, Ex. Sess., p. 251), to acquire by condemnation fee simple title to a certain described tract of land in the City of Dublin, Laurens County, Georgia, for use in carrying out an urban redevelopment project. The condemnor alleged on information and belief that Henry E. Kreutz, John D. Kreutz and W. H. Keith (hereinafter referred to as the condemnees) owned or had an interest in the property described in its petition. Assessors were duly appointed, took the oath required of them, and thereafter a majority of them awarded $6,150.00 for the land described in the petition. The award was filed in the office of the Clerk of the Superior Court of Laurens County, Georgia. After the award was filed the court, on May 31, 1962, rendered a judgment in the case which provides: "It is ordered, decreed and adjudged that all of the real property and its appurtenances, as described in the original petition, being designated as Parcel 3, block 3, in the Glenwood Avenue Urban Renewal Project, is hereby condemned in fee simple, and possession of said property is given to the condemnor. It is further ordered that the Housing Authority of the City of Dublin, Georgia, the condemnor, pay into the registry of the court the sum of Six Thousand One Hundred Fifty and No/100 ($6,150.00) dollars, the amount awarded by the assessors in this case; and that the clerk hold said money in trust pending further order of this court." On the same day the judgment was rendered the condemnor paid the amount of the award of the assessors into the registry of the court and filed its appeal to a jury in the Superior Court of Laurens County. Thereafter, condemnees filed their application for a distribution of the amount of the award and requested that the amount be distributed as follows: $54.89 to the City of Dublin, $232.98 to the Tax Commissioner of Laurens County, and the balance to the condemnees and their attorney. The court issued the following order on the application: "The above and foregoing petition having been read and considered the court shall proceed to hear same at 10:00 A.M. on June 1, 1962 at the courthouse in Dublin, Georgia, after notice to W. M. Towson, attorney for the condemnor, being given." Upon the hearing the court rendered a judgment which, in part, is as follows: "At said hearing it was determined that the amount due to parties other than the condemnees were as follows: To the City of Dublin $54.89; to Laurens County $232.98 with a balance due to condemnees and H. Dale Thompson, their attorney, in the amount of $5,862.13 which they agreed to be divided in three equal shares. It further appearing to the court that said appraisers' award was greatly in excess to the original amount offered and that the condemnees are not residents of the county and that two of them live outside of the State, It is therefore ordered, that the Clerk of the Superior Court of Laurens County is hereby authorized and directed to pay out the following sums of money, to wit: To Laurens County Tax Commissioner $232.98; to City of Dublin $54.89; to Henry E. Kreutz and H. Dale Thompson, his atty., $1287.37; to John D. Kreutz and H. Dale Thompson, his atty., $1287.38; to W. H. Keith and H. Dale Thompson, his atty., $1287.38. It is further ordered that the clerk of the superior court shall hold the remaining $2000.00 until further order of this court unless Henry E. Kreutz, John D. Kreutz and W. H. Keith and H. Dale Thompson, their attorney, shall give bond to the Housing Authority of the City of Dublin in the amount of $2000.00, said bond to be approved by the clerk of said court." This judgment is assigned as error as being contrary to law.
It is apparent that in rendering the judgment on the condemnees' application for distribution of the fund paid into the registry of the court pursuant to the award of the assessors and the judgment of condemnation, the court acted on the theory that the condemnor was concerned with the distribution of said fund. This was an erroneous theory. "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. Code § 36-1113." State Highway Dept. v. Taylor, 216 Ga. 90 (3), supra. See State Highway Dept. v. Taylor, 102 Ga. App. 15 ( 115 S.E.2d 703). As stated in State Highway Dept. v. Hendrix, 215 Ga. 821, 826 ( 113 S.E.2d 761): ". . . [T]he purpose and the mandatory requirement of the amended act [Chapter 36-11 of the Code of 1933, as amended] is for the condemnor to pay the same [the amount of the award] into the registry of the court so that it may be disbursed after a judgment has been taken against the property described in the petition and to those responding parties whom the judge, after hearing their respective claims thereto, finds to be justly entitled."
There were no claims to the fund in question other than the claims designated in the condemnees' application. Accordingly, the court erred in rendering the judgment requiring the condemnees and their attorney to give a bond payable to the condemnor as a condition precedent to receiving the full amount of the fund aforesaid to which they were entitled.
Judgment reversed. Nichols, P. J., and Jordan, J., concur.