State Highway Department v. Farmers Gin Co.

Court of Appeals of Georgia

State Highway Department v. Farmers Gin Co.

115 S.E.2d 760, 102 Ga. App. 35, 1960 Ga. App. LEXIS 548

CourtCourt of Appeals of Georgia

DecidedJune 9, 1960

Docket37816

StatusPublished

Cited by2 cases

This text of 115 S.E.2d 760 (State Highway Department v. Farmers Gin Co.) 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

State Highway Department v. Farmers Gin Co., 115 S.E.2d 760, 102 Ga. App. 35, 1960 Ga. App. LEXIS 548 (Ga. Ct. App. 1960).

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Opinions

Nichols, Judge.

In response to a certified question, propounded by this court, the Supreme Court on May 5, 1960, instructed this court that tender to the condemnee of the amount of the assessor’s award is not a condition precedent to the condemnor’s right to pay the amount of the award into the registry of the court and enter an appeal to the jury. See State Highway Dept. v. Farmers Gin Co., 216 Ga. 70 (114 S. E. 2d 537). If such certified quiestion had been answered in the affirmative instead of the negative it would have disposed of the case. However, since it was not so answered another question is presented to this court, to wit: Does the delivery of a check to the clerk of the superior court constitute payment into the registry of the court so as to authorize an appeal from the award of the assessors (or special master), in a condemnation case where there are insufficient funds on deposit to cover such check during the entire 10-day period when an appeal could be entered by the condemnor?

Under the decision of the Supreme Court in Woodside v. City of Atlanta, 214 Ga. 75 (103 S. E. 2d 108), the amount of the assessor’s award must be paid into the registry of the court, if such amount is not paid to the condemnee, within 10 days in order for the condemnor to appeal to a jury in'the superior court. The condemnor in the present case delivered a check, within the statutory time, to the clerk of the superior court who in turn delivered such check to the condemnee. The condemnee presented such check to the bank on which it was drawn, for payment and, because insufficient funds were on deposit, payment was refused. The condemnee continued to present such check for payment and after the period allowed for appeal the check was paid by the bank. The uncontradicted evidence disclosed that at no time during the 10-day period when an appeal could be entered were sufficient funds on deposit at the bank on which the check was drawn tQ pay such check, and that it was 12 days after the appeal was filed before sufficient funds were on deposit to cover such check.

[37]*37Code § 20-1004 provides in part: “Bank checks and promissory notes are not payment until themselves paid.” Of course where there is an agreement that the check will be received as payment an exception to the above rule exists. See Holland v. Mutual Fertilizer Co., 8 Ga. App. 714 (2) (70 S. E. 151). No such agreement appears in the present case. While generally where a check is given for a debt and the check is paid on presentment to the bank on which it is drawn, payment may be deemed to have been made at' the time the check was delivered to the creditor (see 70 C. J. S. 234, 235, Payment, § 24), yet where the check is-not paid on presentment there is no payment, and the creditor may sue on the debt or on the check. 70 C. J. S. 235, supra.

The check delivered to the, court in the present case was indorsed and delivered to the condemnee and by the condemnee to the bank on which it was drawn where it was dishonored until after the time for appeal had expired. The clerk of the superior court could not agree to accept the check as payment (Collins v. Burkhalter, 144 Ga. 695 (3), 87 S. E. 888), and since the condemnee was entitled to payment regardless of whether the condemnor appealed, dismissed the appeal, or attempted to dismiss the condemnation proceeding after the award of the special master was filed (Towler v. State Highway Dept., 100 Ga. App. 374, 111 S. E. 2d 154), it did not adversely affect its motion to dismiss the appeal by retaining the check and having it paid when sufficient funds were on deposit after the time for the condemnor’s appeal had expired. Here, as in the case of Woodside v. City of Atlanta, 214 Ga. 75, supra, the condemnor failed to pay the amount of the award into the registry of the court within the time permitted by law and the judgment of the superior court dismissing such appeal was not error.

Judgment affirmed.

Bell, J., concurs. Felton, C. J., concurs specially.

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Nichols, Judge.

In response to a certified question, propounded by this court, the Supreme Court on May 5, 1960, instructed this court that tender to the condemnee of the amount of the assessor’s award is not a condition precedent to the condemnor’s right to pay the amount of the award into the registry of the court and enter an appeal to the jury. See State Highway Dept. v. Farmers Gin Co., 216 Ga. 70 (114 S. E. 2d 537). If such certified quiestion had been answered in the affirmative instead of the negative it would have disposed of the case. However, since it was not so answered another question is presented to this court, to wit: Does the delivery of a check to the clerk of the superior court constitute payment into the registry of the court so as to authorize an appeal from the award of the assessors (or special master), in a condemnation case where there are insufficient funds on deposit to cover such check during the entire 10-day period when an appeal could be entered by the condemnor?

Under the decision of the Supreme Court in Woodside v. City of Atlanta, 214 Ga. 75 (103 S. E. 2d 108), the amount of the assessor’s award must be paid into the registry of the court, if such amount is not paid to the condemnee, within 10 days in order for the condemnor to appeal to a jury in'the superior court. The condemnor in the present case delivered a check, within the statutory time, to the clerk of the superior court who in turn delivered such check to the condemnee. The condemnee presented such check to the bank on which it was drawn, for payment and, because insufficient funds were on deposit, payment was refused. The condemnee continued to present such check for payment and after the period allowed for appeal the check was paid by the bank. The uncontradicted evidence disclosed that at no time during the 10-day period when an appeal could be entered were sufficient funds on deposit at the bank on which the check was drawn tQ pay such check, and that it was 12 days after the appeal was filed before sufficient funds were on deposit to cover such check.

[37]*37Code § 20-1004 provides in part: “Bank checks and promissory notes are not payment until themselves paid.” Of course where there is an agreement that the check will be received as payment an exception to the above rule exists. See Holland v. Mutual Fertilizer Co., 8 Ga. App. 714 (2) (70 S. E. 151). No such agreement appears in the present case. While generally where a check is given for a debt and the check is paid on presentment to the bank on which it is drawn, payment may be deemed to have been made at' the time the check was delivered to the creditor (see 70 C. J. S. 234, 235, Payment, § 24), yet where the check is-not paid on presentment there is no payment, and the creditor may sue on the debt or on the check. 70 C. J. S. 235, supra.

The check delivered to the, court in the present case was indorsed and delivered to the condemnee and by the condemnee to the bank on which it was drawn where it was dishonored until after the time for appeal had expired. The clerk of the superior court could not agree to accept the check as payment (Collins v. Burkhalter, 144 Ga. 695 (3), 87 S. E. 888), and since the condemnee was entitled to payment regardless of whether the condemnor appealed, dismissed the appeal, or attempted to dismiss the condemnation proceeding after the award of the special master was filed (Towler v. State Highway Dept., 100 Ga. App. 374, 111 S. E. 2d 154), it did not adversely affect its motion to dismiss the appeal by retaining the check and having it paid when sufficient funds were on deposit after the time for the condemnor’s appeal had expired. Here, as in the case of Woodside v. City of Atlanta, 214 Ga. 75, supra, the condemnor failed to pay the amount of the award into the registry of the court within the time permitted by law and the judgment of the superior court dismissing such appeal was not error.

Judgment affirmed.

Bell, J., concurs. Felton, C. J., concurs specially.

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115 S.E.2d 760, 102 Ga. App. 35, 1960 Ga. App. LEXIS 548, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-highway-department-v-farmers-gin-co-gactapp-1960.

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