GA Code § 32-3-9 (2021)
2021 Georgia Code|Title 32 - Highways, Bridges, and Ferries|Chapter 3 - Acquisition of Property for Transportation Purposes|Article 1 - General Provisions|§ 32-3-9. Service of Nonresidents in Condemnation Proceedings

  If a nonresident of this state owns the property condemned or any interest therein, whether such interest is as the owner of the fee or some lesser interest, or any easement, or as a guardian for a minor or a person non compos mentis, or as a trustee, or growing out of similar facts, such nonresident, in the event that his or her address is known, shall be served with a true and correct copy of the petition and declaration, together with any orders of the court thereon. It shall be the duty of the clerk of the superior court for the county wherein such condemnation proceeding is pending to enclose a copy of the petition and declaration in an envelope, properly addressed to the nonresident at his or her last known address, and to deposit the same in the United States mail, properly registered or certified and with a return receipt requested, or deliver the same by statutory overnight delivery; and the clerk shall make a return service, showing these facts, upon the original petition and declaration in such matter for which he or she shall be paid the fee he or she receives for like service for each service made, the same to be taxed against the costs in the case. Such certificate of service shall be final and conclusive as to service of the petition upon the nonresident and shall become a part of the record in the matter.   Where the address of the nonresident is unknown, whether such nonresident is the owner of the property, a minor, or the trustee or guardian of such minor or has any other lawful interest in the property, the method of advertising the condemnation of the particular property, as provided for in subsection (c) of Code Section 32-3-5, shall be sufficient service upon such nonresidents and shall be final and conclusive; provided, however, that, in that event, it shall be the duty of the condemnor, in filing the petition for condemnation, to certify that the address of such person or persons is unknown to the condemnor; provided, further, that it shall be the duty of the sheriff of the county wherein the condemnation is pending to inquire into the truth of such allegation and to enter a certificate upon the condemnation proceeding, within three days from the filing of the same, verifying the truth of the allegation. This certificate, together with the method of advertising of such condemnation proceedings provided for in the laws and statutes described above, shall be final and conclusive as to lawful service of the petition for condemnation upon the nonresident. For each such certificate, the sheriff shall receive the fee the sheriff receives for like service for each such certificate, the same to be taxed as other costs in the case.    (Code 1933, § 95A-606, enacted by Ga. L. 1973, p. 947, § 1; Ga. L. 1998, p. 1539, § 11; Ga. L. 2000, p. 1589, § 7.)   Editor's notes.   - Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provided that the 2000 amendment was applicable to notices delivered on or after July 1, 2000.   Law reviews.   - For review of 1998 legislation relating to eminent domain, see 15 Ga. St. U. L. Rev. 115 (1998).   JUDICIAL DECISIONS   Statutory construction.    - Ga. L. 1973, p. 947, § 1 requires that the petition and declaration shall be served personally, but personal service as defined in Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4) is not in conflict with this requirement. DOT v. Ridley, 244 Ga. 49, 257 S.E.2d 511 (1979).   Condemnee's right to proper service remains until waived.    - Condemnees have a perfect right to waive service and come on in, but until the condemnees are properly served, and unless the record shows this fact by a proper return of service, the right remains until the right is voluntarily waived. Knight v. Department of Transp., 134 Ga. App. 332, 214 S.E.2d 418 (1975).   Waiver of improper service.    - Pretermitting whether the property owner could have challenged the final judgment of condemnation via O.C.G.A. § 9-11-60(b) on the ground that the owner was not properly served, the trial court abused the court's discretion by granting the motion to set aside the final judgment because the property owner waived the issue of improper service when the motion was not filed at the time the owner filed the notice of appeal and the owner failed to plead improper service of the petition for condemnation and declaration of taking in the notice of appeal. DOT v. Szenczi, 354 Ga. App. 855, 841 S.E.2d 228 (2020), cert. denied, No. S20C1149, 2020 Ga. LEXIS 791 (Ga. 2020).   Timeliness of appeal.    - When the appeal was filed more than 30 days from the date of personal service, although less than 30 days from the completion of advertising as provided for in O.C.G.A. § 32-3-8, the appeal was not timely. DOT v. Brooks, 143 Ga. App. 872, 240 S.E.2d 163 (1977).    Cited in DOT v. Massengale, 141 Ga. App. 70, 232 S.E.2d 608 (1977); DOT v. Harrison, 154 Ga. App. 118, 267 S.E.2d 651 (1980); Bryde v. City of Atlanta, 350 Ga. App. 129, 828 S.E.2d 122 (2019).