City of Douglas v. Carson

162 S.E.2d 745, 118 Ga. App. 29, 1968 Ga. App. LEXIS 1294

Opinions

Pannell, Judge.

This is an appeal by the condemnor, the City of Douglas, from the overruling of a motion for new trial following a jury verdict in favor of one of the condemnees, Effie Carson, for land taken in connection with an urban renewal project. The motion was overruled on February 9, 1968, and the appeal to this court was filed in the lower court on March 8, 1968, and docketed in this court on March 29, 1968. In response to a motion to dismiss by the condemnee for failure of the condemnor to deposit in the lower court the difference between the award of a special master, which the condemnee had appealed, and the jury award, the condemnor shows without dispute by certificate of the clerk of the lower court that on April 24, 1968, the difference was deposited, and that as of April 30, 1968, no judgment on the jury verdict of $6,500 for the appellee had been entered. Held:

Submitted May 8, 1968 Decided June 18, 1968. Elie L. Holton, for appellant. Dewey Hayes, for appellees.

As we construe the opinion of the Supreme Court in City of Gainesville v. Loggins, 224 Ga. 114 (160 SE2d 374), the payment of the jury verdict, whether or not a judgment has been rendered thereon, is a condition precedent to the filing of an appeal, and the payment of such verdict not having been made until after the appeal was docketed in this court, the appeal should be dismissed on that ground. A condition precedent can not be converted into a condition subsequent. Nor does the payment after the appeal is filed make the issue of dismissal a moot question. Under these circumstances, the motion to dismiss the appeal must be sustained.

Appeal dismissed.

Felton, C. J., Bell, P. J., Quillian and Whitman, JJ., concur. Eberhardt and Deen, JJ., concur specially. Jordan, P. J., and Hall, J., dissent.