Opinion
20870, 20871.
ARGUED APRIL 11, 1960.
DECIDED MAY 18, 1960.
Questions certified from the Court of Appeals of Georgia.
Eugene B. Brown, Walter B. Fincher, Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, for plaintiff in error.
George T. Bagby, D. S. Strickland, William Hall, contra.
1. These cases arose under the provisions of Chapter 36-11 of the Code. In State Highway Dept. v. Hendrix, 215 Ga. 821 ( 113 S.E.2d 761), it was held 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.
2. 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.
3. 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. Question No. 3 requires no further specific answer.
Questions Nos. 1 and 2 are answered in the negative. All the Justices concur.
ARGUED APRIL 11, 1960 — DECIDED MAY 18, 1960.
The Court of Appeals certified the following questions to this court:
"1. In a condemnation case where the condemnor pays the amount of the assessors' award into the registry of the court is it a prerequisite to the validity of the condemnor's appeal that the condemnor must first have tendered the amount of the assessors' award to the condemnee before paying the amount of the award into the registry of the court?
"2. Where the condemnor pays the amount of the assessors' award into the registry of the court, and the condemnee obtains an order of court requiring the clerk to pay said amount over to him, and the amount of the award is paid over to him and accepted by him, would the condemnee be estopped to contend that the appeal was invalid?
"3. If question one is decided so as to authorize the condemnor to pay the amount of the award into the registry of the court without first tendering the same to the condemnee, is it error for the trial court to direct that the whole of such amount be paid over by the clerk of the superior court of the condemnee on his demand without first requiring the condemnee to prove the fact and extent of his title, it being contended by the condemnor that the owner of the lands sought to be condemned is unknown?"