Summary
In State Hwy. Dept. v. Summer, 216 Ga. 92 (3) (115 S.E.2d 189), it was held that a question certified to the court by the Court of Appeals which is too general to elicit either an affirmative or negative response will not require an answer.
Summary of this case from Studdard v. StateOpinion
20872.
ARGUED APRIL 12, 1960.
DECIDED MAY 18, 1960.
Questions certified from the Court of Appeals of Georgia.
Eugene Cook, Assistant Attorney-General, Paul Miller, E. J. Summerour, Carter Goode, Assistant Attorneys-General, S. B. McCall, for plaintiff in error.
Hugh D. Wright, Maxwell A. Hines, Edward A. Parrish, contra.
1. Question No. 1, and a part of Question No. 2, in the present case, were answered by this court in response to the questions certified in State Highway Dept. v. Taylor and State Highway Dept. v. Yeager, ante.
2. The portion of Question No. 2 in regard to acts of an attorney for the condemnor is a mixed question of law and fact, and it would be necessary to examine the record in order to answer properly the question. This court must therefore respectfully decline to answer this portion of the question. Fisher v. American Casualty Co., 194 Ga. 157 ( 21 S.E.2d 68); City of Trenton v. Dade County, 202 Ga. 190 ( 42 S.E.2d 438).
3. In State Highway Dept. v. Taylor and State Highway Dept. v. Yeager, supra, it was held: "Where the amount of the assessors' award is paid into the registry of the court, and thereafter paid to the condemnee, the condemnee is not precluded, by receiving the money, from attacking the validity of the appeal or moving that it be dismissed." Whether the condemnee might be "legally entitled to a dismissal of the appeal for any reason" would depend upon the reason advanced for the dismissal. The third question certified by the Court of Appeals is too general in character to elicit either an affirmative or a negative response by this court.
Question No. 1 is answered in the negative. All the Justices concur.
ARGUED APRIL 12, 1960 — DECIDED MAY 18, 1960.
The Court of Appeals certified the following questions to this court:
"1. In a condemnation proceeding, where the condemnor [State Highway Department] has deposited the amount of the assessors' award in the registry of the court is it a prerequisite to the validity of the condemnor's appeal that the condemnor must have first tendered the amount of the assessors' award to the condemnee before depositing the amount of the assessors' award in the registry of the court?
"2. Where a condemnor [State Highway Department] filed an appeal from the assessors' award within the time provided by law and therewith pays the amount of the assessors' award into the registry of the court and where the condemnee `takes down' the amount so deposited, is the condemnee thereafter legally entitled to a dismissal of the appeal either on the ground that the amount of the assessors' award was not first tendered to the condemnee or on the ground that the appeal was signed in behalf of the condemnor by the county attorney of the county in which the action was pending without authority when the act of the county attorney was ratified by the condemnor before the dismissal of the appeal?
"3. Where a purported appeal is timely filed on behalf of the condemnor and the condemnee `takes down' the amount of the assessors' award which was placed in the registry of the court by the condemnor at the time of the filing of the appeal is the condemnee thereafter legally entitled to a dismissal of the appeal for any reason?"