Department of Transportation v. Morris

Court of Appeals of Georgia

Department of Transportation v. Morris

368 S.E.2d 155, 186 Ga. App. 673, 1988 Ga. App. LEXIS 438

CourtCourt of Appeals of Georgia

DecidedMarch 16, 1988

Docket75769

StatusPublished

Cited by6 cases

This text of 368 S.E.2d 155 (Department of Transportation v. Morris) 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.

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Department of Transportation v. Morris, 368 S.E.2d 155, 186 Ga. App. 673, 1988 Ga. App. LEXIS 438 (Ga. Ct. App. 1988).

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Deen, Presiding Judge.

On September 4, 1986, appellant Department of Transportation (DOT) instituted condemnation proceedings against certain property owned by appellee Carroll Morris. Morris was personally served with the petition on September 6, 1986; thirty-one days later, on October 7, 1986, he filed his untimely notice of appeal. Pursuant to OCGA § 32-3-8 (f) citation was published on September 11 and September 18, 1986. On October 23, 1986, thirty-five days after the publication of the last citation, a joint notice of appeal was filed by appellees Morris’s, Inc. and C & L Gifts and Jewelry, Inc., both of which claimed [674]*674an interest in the property under an oral tenancy at will. DOT filed motions to dismiss against all appellees, based on their failure to timely file their notices of appeal. Appellees submitted affidavits in opposition to said motions which contained facts tending to show that DOT had notice of the interests of both Morris’s and C & L Gifts in the property. The trial court denied DOT’s motion to dismiss based on insufficiency of service of process and, citing Knight v. Dept. of Transp., 134 Ga. App. 332 (214 SE2d 418) (1975), held that all parties could proceed to trial as joint appellants. The trial court also granted a certificate of immediate review, and this court subsequently granted DOT’s application for interlocutory appeal. Held:

OCGA § 32-3-5 (3) requires the condemnor to include in the condemnation petition “[t]he names and residences of the persons whose property or interests are to be taken or otherwise affected, so far as known.” (Emphasis supplied.) OCGA § 32-3-8 further provides that said petition and declaration must be personally served on the persons so named, provided they are residents of this state. In the present case, appellees’ uncontradicted affidavits established that DOT had knowledge of the leasehold interests of both Morris’s and C & L Gifts in the property to be condemned; hence, DOT was required to both name these appellees in the petition and personally serve them as provided by OCGA §§ 32-3-8 and 32-3-10. Knight v. Dept. of Transp., supra. See generally Franco’s Pizza & Delicatessen v. Dept. of Transp., 178 Ga. App. 331 (1) (343 SE2d 123) (1986). Cf. Robinson v. Dept. of Transp., 185 Ga. App. 597 (364 SE2d 884) (1988).

The time for filing the notice of appeal begins to run from the date of personal service. OCGA § 32-3-14; Dept. of Transp. v. Rudeseal, 156 Ga. App. 712 (1) (276 SE2d 52) (1980); Dept. of Transp. v. Brooks, 143 Ga. App. 872 (1) (240 SE2d 163) (1977). “The condemnees have a perfect right to waive service and come on in, [which they did in the present case when they filed their joint notices of appeal], but until they are properly served, and unless the record shows this fact by a proper return of service, the right remains until it is voluntarily waived. Here the waiver and the appeal are one and the same.” Knight, supra at 336. Accordingly, the trial court did not err in refusing to dismiss the notice of appeal filed jointly by appellees Morris’s and C & L Gifts. See also OCGA § 32-3-10.

The question remains, however, as to whether the trial court erred in also refusing to grant DOT’s motion to dismiss as to appellee Morris, who filed his notice of appeal thirty-one days after personal service of the petition and declaration of taking. Although conceding that the notice of appeal was not timely filed, Morris argues that under the authority provided in Knight, supra, he should be allowed to join appellees Morris’s and C & L Gifts in their appeal against the DOT. We agree. Knight holds that a court does not have jurisdiction [675]*675until there is a return of service or a reason is shown for lack of service. Where, as in the instant case, some of the condemnees are not served, Knight, at 336, holds, “It does not inhere in this legal structure to fragment the case at the moment when the issue of value is being reciprocally considered for the first time.” Fundamental fairness would therefore permit the condemnee to participate in the appeal when the other condemnees who were not served file their appeals. We find that a condemnee who files an untimely appeal in such a situation is also entitled to just and adequate compensation of his interest in the property.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Carley and Benham, JJ., concur. Sognier, Pope, and Beasley, JJ., dissent.

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Deen, Presiding Judge.

On September 4, 1986, appellant Department of Transportation (DOT) instituted condemnation proceedings against certain property owned by appellee Carroll Morris. Morris was personally served with the petition on September 6, 1986; thirty-one days later, on October 7, 1986, he filed his untimely notice of appeal. Pursuant to OCGA § 32-3-8 (f) citation was published on September 11 and September 18, 1986. On October 23, 1986, thirty-five days after the publication of the last citation, a joint notice of appeal was filed by appellees Morris’s, Inc. and C & L Gifts and Jewelry, Inc., both of which claimed [674]*674an interest in the property under an oral tenancy at will. DOT filed motions to dismiss against all appellees, based on their failure to timely file their notices of appeal. Appellees submitted affidavits in opposition to said motions which contained facts tending to show that DOT had notice of the interests of both Morris’s and C & L Gifts in the property. The trial court denied DOT’s motion to dismiss based on insufficiency of service of process and, citing Knight v. Dept. of Transp., 134 Ga. App. 332 (214 SE2d 418) (1975), held that all parties could proceed to trial as joint appellants. The trial court also granted a certificate of immediate review, and this court subsequently granted DOT’s application for interlocutory appeal. Held:

OCGA § 32-3-5 (3) requires the condemnor to include in the condemnation petition “[t]he names and residences of the persons whose property or interests are to be taken or otherwise affected, so far as known.” (Emphasis supplied.) OCGA § 32-3-8 further provides that said petition and declaration must be personally served on the persons so named, provided they are residents of this state. In the present case, appellees’ uncontradicted affidavits established that DOT had knowledge of the leasehold interests of both Morris’s and C & L Gifts in the property to be condemned; hence, DOT was required to both name these appellees in the petition and personally serve them as provided by OCGA §§ 32-3-8 and 32-3-10. Knight v. Dept. of Transp., supra. See generally Franco’s Pizza & Delicatessen v. Dept. of Transp., 178 Ga. App. 331 (1) (343 SE2d 123) (1986). Cf. Robinson v. Dept. of Transp., 185 Ga. App. 597 (364 SE2d 884) (1988).

The time for filing the notice of appeal begins to run from the date of personal service. OCGA § 32-3-14; Dept. of Transp. v. Rudeseal, 156 Ga. App. 712 (1) (276 SE2d 52) (1980); Dept. of Transp. v. Brooks, 143 Ga. App. 872 (1) (240 SE2d 163) (1977). “The condemnees have a perfect right to waive service and come on in, [which they did in the present case when they filed their joint notices of appeal], but until they are properly served, and unless the record shows this fact by a proper return of service, the right remains until it is voluntarily waived. Here the waiver and the appeal are one and the same.” Knight, supra at 336. Accordingly, the trial court did not err in refusing to dismiss the notice of appeal filed jointly by appellees Morris’s and C & L Gifts. See also OCGA § 32-3-10.

The question remains, however, as to whether the trial court erred in also refusing to grant DOT’s motion to dismiss as to appellee Morris, who filed his notice of appeal thirty-one days after personal service of the petition and declaration of taking. Although conceding that the notice of appeal was not timely filed, Morris argues that under the authority provided in Knight, supra, he should be allowed to join appellees Morris’s and C & L Gifts in their appeal against the DOT. We agree. Knight holds that a court does not have jurisdiction [675]*675until there is a return of service or a reason is shown for lack of service. Where, as in the instant case, some of the condemnees are not served, Knight, at 336, holds, “It does not inhere in this legal structure to fragment the case at the moment when the issue of value is being reciprocally considered for the first time.” Fundamental fairness would therefore permit the condemnee to participate in the appeal when the other condemnees who were not served file their appeals. We find that a condemnee who files an untimely appeal in such a situation is also entitled to just and adequate compensation of his interest in the property.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Carley and Benham, JJ., concur. Sognier, Pope, and Beasley, JJ., dissent.

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368 S.E.2d 155, 186 Ga. App. 673, 1988 Ga. App. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transportation-v-morris-gactapp-1988.

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