State Highway Department v. Yeager , 102 Ga. App. 17 ( 1960 )

Gardner, Presiding Judge.

1. A motion to dismiss the appeal of the condemnor from the award of the assessors was made by the condemnee Yeager, and sustained by the Judge of the Superior Court of Douglas County, and that judgment is here assigned as error. Insofar as the motion to dismiss is based on the contention that it is a condition precedent to the appeal that the condemnation money be first tendered by the condemnor to the .condemnee and refused before it may legally be paid into the registry of the court, this has been decided contrary to the contentions of the appellee in State Highway Dept. v. Hendrix, 215 Ga. 821 (113 S. E. 2d 761) and State Highway Dept. v. Taylor, ante.

Decided June 30, 1960. Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, Eugene B. Brown, Walter B. Fincher, for plaintiff in error. George T. Bagby, William Hall, D. S. Strickland, contra.

2. The motion to dismiss contains another ground to the effect that at or before the time when the appeal was filed on December 12, 1958, following the assessors’ award of December 8, the condemnor presented to the clerk of the superior court as a tender of the amount awarded a county voucher dated December 2, 1958, with the request that the clerk hold the voucher because there were no county funds at the time with which to pay it, and that for this reason the appeal should be dismissed. Evidence was introduced at the hearing on the motion to dismiss, at which hearing the undisputed testimony was to the effect that there had been no request to the clerk to hold the check because of insufficient funds to cover it; that as a matter of fact, as shown by a bank statement introduced in evidence, the county at all times between December 12, when the appeal was filed, and December 18, the tenth day following the award of the assessors, there were in the bank sufficient funds to meet the check, and that the check was actually presented to the bank by the clerk of court and paid on December 18, 1958. It accordingly follows that these grounds of the motion to dismiss were not sustained by proof.

The judge of the superior court erred in granting the motion to dismiss the appeal of the condemnor.

Judgment reversed.

Townsend and Carlisle, JJ., concur.