Opinion
33918.
DECIDED APRIL 11, 1952.
Condemnation; from Cobb Superior Court — Judge Brooke. July 18, 1951.
Geo. D. Anderson, H. C. Schroeder, Luther C. Hames, for plaintiffs in error.
Eugene Cook, Attorney-General, W. V. Rice, Assistant Attorney-General, Willingham, Cheney, Hicks Edwards, J. G. Roberts, contra.
The appeal by the State Highway Department from the award of the assessors, in a proceeding for condemnation in rem of a certain tract of land was entered within ten days from the filing of the award, and was not subject to dismissal for failure to allege a tender or payment of the amount of the award to the apparent owners in possession of the land; and, where it appeared that a deed to secure debt was outstanding against the property and had been assigned by the original grantee to a bank, and that the condemnor had taken a judgment condemning the land in fee simple upon the payment of the award and had paid the amount of the award into the registry of the court by means of a county warrant, and that the clerk of the superior court had accepted such warrant as cash and stood ready to pay said award in cash to such persons as the court should determine to be entitled thereto, this was a sufficient compliance with the statutory procedure for condemnation in rem, and the court properly denied the motion to dismiss the appeal.
DECIDED APRIL 11, 1952.
The State Highway Department filed a petition in rem for the condemnation of a 2.227-acre tract of land in Cobb County as a right of way for a State highway, a plat thereof being attached to the petition. H. P. Wilson, Mrs. Lucile Wilson, and Mrs. Lucile Hughes were named as the apparent owners, and it was alleged that the petitioner believed that the title of the apparent owners was incomplete, and that there might be persons unknown and non-resident having some claim to the land sought to be condemned. Notice was given as provided by law. The assessors selected by the parties were appointed by the court on July 10, 1948; and on July 20, 1948, they filed an award for $8400 in favor of the owners of the land. On July 28, 1948, the judge of the superior court entered an order condemning the land in fee simple and vesting the State Highway Department with full, unencumbered, fee-simple title to the land described in the petition, upon the payment of $8400. Also on July 28, 1948, the State Highway Department entered an appeal to a jury in the superior court from the award and judgment. The appeal was amended on August 3, 1948, by striking therefrom the reference to the judgment of condemnation entered on July 28, 1948.
The persons named as owners in the petition filed a motion to dismiss the appeal on November 11, 1948, on the grounds that no tender had been made to them as required by law as a prerequisite to the right to enter an appeal; that the State Highway Department had procured a judgment vesting title to the tract condemned in the State Highway department, which judgment was an adjudication of the issue of the appeal; and that the proceedings were not in compliance with the law applicable in such a proceeding. It was alleged in the motion that the condemnor had deposited a county warrant for $8427.50 with the clerk of the superior court at or before the time of filing the appeal.
On November 19, 1948, the Cobb Exchange Bank intervened, alleging that it was the holder of a loan deed executed by Mrs. Lucile Hughes, dated December 11, 1947, and claiming rights or an interest in the $8400 which had been paid into court. There was no objection to the intervention.
On July 16, 1951, the State Highway Department amended its petition by adding the following: H. P. Wilson and Mrs. Lucile Wilson were in possession of the property when the condemnation proceedings were instituted, but the condemnor was advised that Mrs. Lucile Hughes held a deed to secure debt against said property in a substantial sum, and she was made a party to the proceedings. At the hearing of said proceedings on the premises, it appeared that the Cobb Exchange Bank also held a loan against said property in a substantial sum, this fact not being known to the petitioner when it instituted the proceeding. Subsequently to the making of the award and prior to the entering of the appeal, the petitioner did not know to whom the payment of the proceeds of said award should be made, that is, whether to one lien holder, to both lienholders, or to the persons in possession of the property, and for this reason it paid the amount of the award into the office of the Clerk of the Superior Court by delivering a warrant of Cobb County, Georgia, for the full amount thereof, which warrant was accepted by the clerk as a cash item, and from the date of the filing of the same with said clerk and, on the basis of its filing, said clerk has been ready, able, and willing to pay the proceeds thereof in cash to the party or parties entitled to receive the same upon proof of their or its right to said fund.
At the hearing on the motion to dismiss, on July 18, 1951, the Clerk of the Superior Court of Cobb County testified that he had accepted the county warrant referred to in the motion as a cash item and has at all times been ready, willing, and able to pay out the funds and proceeds thereof upon a proper order of the court to any party designated by the court. There was also evidence that the loan deed originally held by Mrs. Hughes had been transferred to the Cobb Exchange Bank. It was stipulated by counsel that there was no actual tender of money or the county warrant to any of the defendants in the condemnation case or to the lienholder, the Cobb Exchange Bank. The motion to dismiss the appeal was overruled, and the defendants excepted.
This was a proceeding for condemnation in rem, under the provisions of Code (Ann.) § 36-1104, which states that, where the condemnor shall find or believe that the title of the apparent or presumptive owner of the property sought to be condemned is incomplete, or that there are or may be persons unknown or non-resident who have or may have some claim or demand thereon, the condemnor may petition the superior court for a judgment in rem, condemning the property to the use of the condemnor upon payment of just and adequate compensation therefor to the person or persons entitled to such payment.
Code § 36-1110 provides that, "In case assessors are appointed, the same right of appeal shall lie from their award to a jury in the superior court, as is given in Chapter 36-6, and upon like terms and conditions in all respects as are therein provided." Code § 36-601 provides that either party may appeal to a jury in the superior court within ten days from the time the award is filed. Code § 36-602 states: "The entering of said appeal and the proceedings thereon shall not hinder or delay in any way the corporation's or person's work or the progress thereof, if the applicant to condemn shall pay or tender to the owner the amount of the award, and, in case of the refusal of the owner to accept the same, deposit the amount awarded with the clerk of the superior court for the benefit of the owner." And it is provided in Code § 36-603 that "The tender, payment, or acceptance of the amount shall not prevent either party from prosecuting the appeal."
The Constitution, article 1, section 3, paragraph 1 (Code, Ann., § 2-301), requires that just and adequate compensation must be first paid before private property is taken or damaged for public purposes. Under both the Constitution and the statutes providing for the appeal from the assessors' award in condemnation proceedings, it is plain that tender or payment of the award is necessary before the property may be taken or the work thereon commenced, but payment or tender is not a condition precedent to the right of either party to enter an appeal within ten days from the filing of the award. The appeal was not subject to dismissal because no tender of the amount of the award had been made to the persons named in the petition as the apparent owners.
It is not contended that there were any irregularities in the proceedings before the filing of the award of the assessors, but it is contended that the judgment entered during the ten-day period after such filing was conclusive on the issue of value, so as to require the dismissal of the appeal from the award of the assessors, and that the judgment operated as a taking of the property without the requisite tender to the owners being made, which irregularity barred the appeal.
Chapter 36-11, of the Code is cumulative and supplemental to the provisions for condemnation contained in Chapters 36-2 to 36-6, and was "intended to make simpler and more effective the method of condemnation in those cases where conflicting interests or doubtful questions render a judicial supervision of the procedure desirable." Code (Ann.), § 36-1115. And in all particulars not otherwise specially provided for in Chapter 36-11, the court is to conform its procedure as nearly as may be to the provisions of Chapters 36-2 to 36-6. Ibid. "It shall be within the power of the court, upon payment of the award or verdict into the registry of the court, to adjudge a condemnation of the title in fee simple, and give such direction as to the disposition of the fund as shall be proper, according to the rights of the several respondents, causing such pleadings to be filed and such issues made up as shall be appropriate for an ascertainment and determination of such rights." Code, § 36-1111. "After condemnation is had and the fund paid into the registry of the court, the petitioner shall not be concerned with or affected by any subsequent proceedings unless upon appeal from the verdict or award as hereinbefore allowed." § 36-1113.
The petition for condemnation in rem in the present case alleged that the petitioner believed that the title was incomplete, and that there might be persons unknown and non-resident having some claim to the land sought to be condemned; and alleged in the amendment thereto that either Mrs. Lucile Hughes or the Cobb Exchange Bank, or both, held deeds to secure debt against the property sought to be condemned. The evidence introduced on the hearing of the motion showed that the loan deed of Mrs. Hughes had been transferred to the Cobb Exchange Bank. These facts bring the case within Chapter 36-11 of the Code, as a case "where conflicting interests or doubtful questions render a judicial supervision of the procedure desirable."
In such a case, the procedure specially provided for in Chapter 36-11 may be followed, and it appears that such procedure (as set out in Code §§ 36-1111 and 36-1113, supra) was substantially followed in the present case. The court adjudged a condemnation of the title in fee simple upon the payment of the award into the registry of the court, and the award was presumably to be disposed of after the determination of the rights of the defendants and the intervenor to such award. After the judgment of condemnation was had, and the fund paid into the registry of the court, the condemnor was concerned only with the appeal from the award, as allowed under Code §§ 36-1110 and 36-601, supra. Thus the judgment of condemnation did not operate as a final adjudication of the issue of value such as would estop the condemnor from appealing on that issue. It does not matter that the payment into the registry of the court was by means of a county warrant rather than by cash. The warrant was accepted in lieu of cash by the clerk, and he stood ready to pay the amount in cash on order of the court. The resulting liability of the clerk to pay the award as directed by the court would be the same whether the clerk had accepted money or a county warrant.
There was sufficient compliance with the statutory procedure for condemnation in rem by the State Highway Department in the present case, and the trial judge did not err in denying the motion to dismiss the appeal.
Judgment affirmed. Felton and Worrill, JJ., concur.