City of Gainesville v. Loggins

Bell, Presiding Judge. Condemnor brought this appeal from a judgment of the superior court based on a jury verdict. It [549] appears that condemnor did not pay the amount of the judgment into the registry of the court but voluntarily paid it directly to the condemnee.. The condemnee has filed a motion to dismiss the appeal on the ground that satisfaction of the judgment in full renders moot questions raised as to the validity of the judgment. This condemnation was brought under the special master statute, Ga. L. 1957, p. 387 et seq. (Code Ann. Ch. 36-6A). Held: The statute creating the special master proceeding does not repeal other statutory provisions for the condemnation of property but is supplementary to and cumulative of them. Code Ann. § 36-602a. The trial of an appeal from the award of the special master in the superior court, which is a de novo investigation (Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 6 (3) (76 SE 387, AC 1914A 880); Code Ann. § 36-612 (a)), is a judicial proceeding governed by the rules applicable to ordinary suits in the jurisdiction. Western Union Tel. Co. v. Western & A. R. Co., 142 Ga. 532, 535 (83 SE 135); Ga. Power Co. v. Lightfoot, 97 Ga. App. 330 (103 SE2d 99). See State Hwy. Dept. v. Sumner, 216 Ga. 92 (3) (115 SE2d 189) and State Hwy. Dept. v. Hester, 112 Ga. App. 51 (143 SE2d 658). The provision in Code Ann. § 36-615a that, “The tender, payment, or acceptance of the amount shall not prevent either party from prosecuting the appeal” applies only to the appeal from the award of the special master to the superior court. It does not apply to appeals from the judgment of the superior court after jury trial. An appeal from the judgment of the superior court to the Court of Appeals in a condemnation case is governed by the rules applicable to ordinary appeals. Western Union Tel. Co. v. Western & A. R. Co., 142 Ga. 532, 535, supra. It was the legislative intent that either party dissatisfied after a jury trial in a special master condemnation proceeding perfect an appeal from the judgment of the superior court “as in other cases at law.” See Code Ann. § 36-614a. The rule in this jurisdiction is that a voluntary payment of a judgment renders moot any question as to the validity of the judgment and cuts off the right of appeal. Keener v. King Hardware Co., 215 Ga. 577 (111 SE2d 215); Edwards v. Edwards, 212 Ga. 291 (92 SE2d 17); Drury v. Cameron & Barclay Co., 25 Ga. App. 15 (102 SE 373); Leverette v. Kilpatrick, 29 Ga. App. 333 (115 SE 34). See Kitchens v. State, 4 Ga. App. 440 (61 SE 736) and Ann. 39 [550] ALR2d 146, 163. The rule is different^ and appeal is not precluded,- in those cases where there is full payment of a fi.fa. -founded on a judgment where no supersedeas is secured. Hudson v. Alford, 118 Ga. 669 (45 SE 454); Ford Motor Co. v. Abercrombie, 207 Ga. 464, 476 (62 SE2d 209); Richmond & Danville R. Co. v. Buice, 88 Ga. 180 (14 SE 205); Toole v. Davis, 13 Ga. App. 122 (78 SE 865). Argued September 8,1967 Decided October 3, 1967 Rehearing denied October 26, 1967—Cert, applied for. Kenyon & Gunter, Edgar H. Sims, Jr., Julius M. Hulsey, for appellant. Robert E. Andrews, for appellee. The judgment of the superior court following the jury trial having been voluntarily paid by the condemnor directly to the condemnee the question of the validity of the judgment has been rendered moot. The appellee’s motion to dismiss is granted and the appeal is Dismissed. Whitman, J., concurs. Pannell, J., concurs specially.