City of Gainesville v. Loggins

Court of Appeals of Georgia

City of Gainesville v. Loggins

158 S.E.2d 287, 116 Ga. App. 548, 1967 Ga. App. LEXIS 887

CourtCourt of Appeals of Georgia

DecidedOctober 3, 1967

Docket43039

StatusPublished

Cited by2 cases

This text of 158 S.E.2d 287 (City of Gainesville v. Loggins) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of Gainesville v. Loggins, 158 S.E.2d 287, 116 Ga. App. 548, 1967 Ga. App. LEXIS 887 (Ga. Ct. App. 1967).

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Opinions

Bell, Presiding Judge.

Condemnor brought this appeal from a judgment of the superior court based on a jury verdict. It [549]*549appears that condemnor did not pay the amount of the judgment into the registry of the court but voluntarily paid it directly to the condemnee.. The condemnee has filed a motion to dismiss the appeal on the ground that satisfaction of the judgment in full renders moot questions raised as to the validity of the judgment. This condemnation was brought under the special master statute, Ga. L. 1957, p. 387 et seq. (Code Ann. Ch. 36-6A). Held:

The statute creating the special master proceeding does not repeal other statutory provisions for the condemnation of property but is supplementary to and cumulative of them. Code Ann. § 36-602a. The trial of an appeal from the award of the special master in the superior court, which is a de novo investigation (Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 6 (3) (76 SE 387, AC 1914A 880); Code Ann. § 36-612 (a)), is a judicial proceeding governed by the rules applicable to ordinary suits in the jurisdiction. Western Union Tel. Co. v. Western & A. R. Co., 142 Ga. 532, 535 (83 SE 135); Ga. Power Co. v. Lightfoot, 97 Ga. App. 330 (103 SE2d 99). See State Hwy. Dept. v. Sumner, 216 Ga. 92 (3) (115 SE2d 189) and State Hwy. Dept. v. Hester, 112 Ga. App. 51 (143 SE2d 658).

The provision in Code Ann. § 36-615a that, “The tender, payment, or acceptance of the amount shall not prevent either party from prosecuting the appeal” applies only to the appeal from the award of the special master to the superior court. It does not apply to appeals from the judgment of the superior court after jury trial. An appeal from the judgment of the superior court to the Court of Appeals in a condemnation case is governed by the rules applicable to ordinary appeals. Western Union Tel. Co. v. Western & A. R. Co., 142 Ga. 532, 535, supra. It was the legislative intent that either party dissatisfied after a jury trial in a special master condemnation proceeding perfect an appeal from the judgment of the superior court “as in other cases at law.” See Code Ann. § 36-614a. The rule in this jurisdiction is that a voluntary payment of a judgment renders moot any question as to the validity of the judgment and cuts off the right of appeal. Keener v. King Hardware Co., 215 Ga. 577 (111 SE2d 215); Edwards v. Edwards, 212 Ga. 291 (92 SE2d 17); Drury v. Cameron & Barclay Co., 25 Ga. App. 15 (102 SE 373); Leverette v. Kilpatrick, 29 Ga. App. 333 (115 SE 34). See Kitchens v. State, 4 Ga. App. 440 (61 SE 736) and Ann. 39 [550]*550ALR2d 146, 163. The rule is different^ and appeal is not precluded,- in those cases where there is full payment of a fi.fa. -founded on a judgment where no supersedeas is secured. Hudson v. Alford, 118 Ga. 669 (45 SE 454); Ford Motor Co. v. Abercrombie, 207 Ga. 464, 476 (62 SE2d 209); Richmond & Danville R. Co. v. Buice, 88 Ga. 180 (14 SE 205); Toole v. Davis, 13 Ga. App. 122 (78 SE 865).

Argued September 8,1967 Decided October 3, 1967 Rehearing denied October 26, 1967—Cert, applied for. Kenyon & Gunter, Edgar H. Sims, Jr., Julius M. Hulsey, for appellant. Robert E. Andrews, for appellee.

The judgment of the superior court following the jury trial having been voluntarily paid by the condemnor directly to the condemnee the question of the validity of the judgment has been rendered moot.

The appellee’s motion to dismiss is granted and the appeal is

Dismissed.

Whitman, J., concurs. Pannell, J., concurs specially.

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Bell, Presiding Judge.

Condemnor brought this appeal from a judgment of the superior court based on a jury verdict. It [549]*549appears that condemnor did not pay the amount of the judgment into the registry of the court but voluntarily paid it directly to the condemnee.. The condemnee has filed a motion to dismiss the appeal on the ground that satisfaction of the judgment in full renders moot questions raised as to the validity of the judgment. This condemnation was brought under the special master statute, Ga. L. 1957, p. 387 et seq. (Code Ann. Ch. 36-6A). Held:

The statute creating the special master proceeding does not repeal other statutory provisions for the condemnation of property but is supplementary to and cumulative of them. Code Ann. § 36-602a. The trial of an appeal from the award of the special master in the superior court, which is a de novo investigation (Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 6 (3) (76 SE 387, AC 1914A 880); Code Ann. § 36-612 (a)), is a judicial proceeding governed by the rules applicable to ordinary suits in the jurisdiction. Western Union Tel. Co. v. Western & A. R. Co., 142 Ga. 532, 535 (83 SE 135); Ga. Power Co. v. Lightfoot, 97 Ga. App. 330 (103 SE2d 99). See State Hwy. Dept. v. Sumner, 216 Ga. 92 (3) (115 SE2d 189) and State Hwy. Dept. v. Hester, 112 Ga. App. 51 (143 SE2d 658).

The provision in Code Ann. § 36-615a that, “The tender, payment, or acceptance of the amount shall not prevent either party from prosecuting the appeal” applies only to the appeal from the award of the special master to the superior court. It does not apply to appeals from the judgment of the superior court after jury trial. An appeal from the judgment of the superior court to the Court of Appeals in a condemnation case is governed by the rules applicable to ordinary appeals. Western Union Tel. Co. v. Western & A. R. Co., 142 Ga. 532, 535, supra. It was the legislative intent that either party dissatisfied after a jury trial in a special master condemnation proceeding perfect an appeal from the judgment of the superior court “as in other cases at law.” See Code Ann. § 36-614a. The rule in this jurisdiction is that a voluntary payment of a judgment renders moot any question as to the validity of the judgment and cuts off the right of appeal. Keener v. King Hardware Co., 215 Ga. 577 (111 SE2d 215); Edwards v. Edwards, 212 Ga. 291 (92 SE2d 17); Drury v. Cameron & Barclay Co., 25 Ga. App. 15 (102 SE 373); Leverette v. Kilpatrick, 29 Ga. App. 333 (115 SE 34). See Kitchens v. State, 4 Ga. App. 440 (61 SE 736) and Ann. 39 [550]*550ALR2d 146, 163. The rule is different^ and appeal is not precluded,- in those cases where there is full payment of a fi.fa. -founded on a judgment where no supersedeas is secured. Hudson v. Alford, 118 Ga. 669 (45 SE 454); Ford Motor Co. v. Abercrombie, 207 Ga. 464, 476 (62 SE2d 209); Richmond & Danville R. Co. v. Buice, 88 Ga. 180 (14 SE 205); Toole v. Davis, 13 Ga. App. 122 (78 SE 865).

Argued September 8,1967 Decided October 3, 1967 Rehearing denied October 26, 1967—Cert, applied for. Kenyon & Gunter, Edgar H. Sims, Jr., Julius M. Hulsey, for appellant. Robert E. Andrews, for appellee.

The judgment of the superior court following the jury trial having been voluntarily paid by the condemnor directly to the condemnee the question of the validity of the judgment has been rendered moot.

The appellee’s motion to dismiss is granted and the appeal is

Dismissed.

Whitman, J., concurs. Pannell, J., concurs specially.

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158 S.E.2d 287, 116 Ga. App. 548, 1967 Ga. App. LEXIS 887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-gainesville-v-loggins-gactapp-1967.

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