State Highway Department v. Haynie

Gardner, Presiding Judge. This case involves practically the same facts and the same principles of law as are shown in Woodside v. City of Atlanta, 214 Ga. 75 (103 S. E. 2d 108) and State Highway Dept. v. Blalock, 98 Ga. App. 630 (106 S. E. 2d 552). It follows that the decisions rendered in those cases are controlling in -the instant case. However, it will be noted that in the instant case, as in the Blalock case, the condemnee also dismissed the case. Under the authority of the Blalock case, this court is required, under the principles of stare decisis, to hold that in this proceeding the condemnee could not dismiss her appeal without the consent of the condemnor and that the trial court erred in entering the order permitting the condemnee to do so. We are asked to* pass on a motion to dismiss the writ of error filed by the defendants in error. The bill of exceptions recites: “Be it further remembered, that on July 18, 1958, the court passed an order dismissing the appeal of the State Highway Department of Georgia, and on July 25, 1958, allowed the condemnees to dismiss their appeal without the approval of [173] the condemnor. The said orders and judgments of July 18, 1958, sustained the motion to dismiss the appeal, and the orders and judgments allowing the condemnees to dismiss their appeal, the State Highway Department of Georgia, then excepted and now accepts and assigns the same error and as being contrary to law, and says further that said orders and judgments illegally and prematurely terminated said case erroneously deprived the State Highway Department of Georgia of its right to a trial in Richmond Superior Court before a jury of its appeal from the award of assessors.” It is our opinion that the bill of exceptions is specific and does not come within that class of cases where the writ of error was dismissed because the bill of exceptions recited only that the assignment was “contrary to law”. In Patterson v. Beck, 133 Ga. 701, et seq. (66 S. E. 911) Judge Lumpkin went thoroughly into the matter of dismissal of a bill of exceptions based on a motion to dismiss, and under the ruling there and in other cases which we could cite, it is clear that the instant case is not subject to dismissal for the reasons set forth in the motion to dismiss. Decided February 2, 1959 Rehearing denied February 25, 1959. Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, John L. Jemigan, Deputy Assistant Attorney-General, Franklin H. Pierce, for plaintiff in error. Fulcher, Fulcher, Hagler ■& Harper, J. Walker Harper, contra. Judgment affirmed in part and reversed in part. Townsend, J., concurs. Carlisle, J., concurs specially.