Coffey Enterprises Realty & Development Co. v. Moreland

283 S.E.2d 345, 159 Ga. App. 368, 1981 Ga. App. LEXIS 2610

Opinion

Sognier, Judge.

Appellant condemnee brought this separate action against the Department of Transportation seeking to enjoin condemnation proceedings. Meanwhile, appellant appealed the condemnation suit to a jury.

Decided July 10, 1981 Rehearing denied July 22, 1981. C. E. Thompson, for appellant. Arthur K. Bolton, Attorney General, William C. Joy, Assistant Attorney General, William C. Harris, Staff Assistant Attorney General, for appellee.

The Department of Transportation filed a motion to dismiss and a verified answer pleading, inter alia, that appellant had an existing remedy within the condemnation proceedings.

All of the issues raised in appellant’s petition could and should have been raised in the condemnation proceeding. A . . property owner is required to set up all available defenses in the condemnation proceeding instead of raising them by a separate suit.” Pye v. State Hwy. Dept., 226 Ga. 389, 398 (175 SE2d 510) (1970); see also, Spell v. Haire, 233 Ga. 218, 219 (210 SE2d 729) (1974).

The trial court was correct in dismissing appellant’s petition.

Judgment affirmed.

Shulman, P. J., and Birdsong, J., concur.