GA Code § 22-2-113 (2021)
2021 Georgia Code|Title 22 - Eminent Domain|Chapter 2 - Condemnation Procedure Generally|Article 2 - Proceeding Before Special Master|§ 22-2-113. Prosecution of Appeals; Effect of Discrepancy Between Award of Special Master and Verdict of Jury; Issuance of Execution Upon Award or Judgment

  The tender, payment, or acceptance of the amount of the award shall not prevent any party from prosecuting the appeal.   Where separate and distinct parcels of property are condemned in the same proceeding, the owner of any separate and distinct property may file a separate appeal to a jury in the superior court.   If the amount awarded by the special master or the special master panel, if such a panel exists, is less than that found by the verdict of the jury, the condemnor shall be bound to pay the sum so finally adjudged less the amount previously deposited as provided in Code Section 22-2-110 plus lawful interest on the difference from the date of such deposit, in order to retain the property.   If the condemnor fails to pay the amount of the award or judgment within ten days after the same is filed or entered, then the clerk shall issue execution upon such award or judgment which may be levied upon any property of the condemnor.    (Ga. L. 1957, p. 387, § 15; Ga. L. 1998, p. 1539, § 8.)   Law reviews.   - For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981).   JUDICIAL DECISIONS    Judgment authorized by this section is clearly in personam judgment. Atlanta Whses., Inc. v. Housing Auth., 143 Ga. App. 588, 239 S.E.2d 387 (1977).    Condemnor cannot insist upon its right to take property and refuse to pay the amount awarded to the condemnee at the same time. State Hwy. Dep't v. Taylor, 102 Ga. App. 15, 115 S.E.2d 703 (1960).    One cannot voluntarily accept money awarded for one's property and still contest right to condemn, but such acceptance in no way precludes one from protesting the value amount of the award. Tingle v. Georgia Power Co., 150 Ga. App. 867, 258 S.E.2d 668 (1979).    Despite the fact that subsection (a) of O.C.G.A. § 22-2-113 states that the acceptance of the award "shall not prevent any party from prosecuting the appeal," this language is not applicable to appeals in which the condemnee challenges the right to condemn, as opposed to the amount of the award. Wrege v. Cobb County, 203 Ga. App. 241, 416 S.E.2d 562 (1992).   Award becomes final if appeal not filed within ten days.    - If an appeal to a jury is desired it must be filed within ten days after the filing of the award or it becomes final. Hardy v. Georgia Power Co., 151 Ga. App. 805, 261 S.E.2d 748 (1979).   "Owner" intended to be distinguished from other condemnees.    - It is obvious that the General Assembly in using the word "owner" not only intended it to have its ordinary signification, but in doing so, also distinguished the owner from other condemnees. Citizens & S. Nat'l Bank v. Fulton County, 123 Ga. App. 323, 180 S.E.2d 905 (1971).    Leaseholder is "owner" within the meaning of this section. Allen v. Hall County, 156 Ga. App. 629, 275 S.E.2d 713 (1980).    Bank as lienholder is not "owner" within the meaning of the statute as to the money received by it under the order of the court and the agreement of the parties. Citizens & S. Nat'l Bank v. Fulton County, 123 Ga. App. 323, 180 S.E.2d 905 (1971).   Applicability of section.    - The provisions of subsection (a) of O.C.G.A. § 22-2-113 were not applicable when the condemnees withdrew their original appeal with prejudice; further, the statutory language is not applicable to appeals in which the condemnee challenges the right to condemn as opposed to challenging the amount of the award. Fulton County v. Threatt, 210 Ga. App. 269, 435 S.E.2d 672 (1993).    Judgment in condemnation action may be pled in bar of subsequent damage suit. R.E. Adams Properties, Inc. v. City of Gainesville, 125 Ga. App. 800, 189 S.E.2d 114 (1972).   Computation of interest.    - When interest is computed on an amount which the condemnee must refund to the condemnor, interest is computed only from the date of the adjudication of principal amount. State Hwy. Dep't v. Rogers, 118 Ga. App. 626, 165 S.E.2d 172 (1968).    In a condemnation proceeding, the trial court erred in failing to follow the mandates of O.C.G.A. § 22-2-113(c) which required the payment of interest from the date of the taking on the difference between the special master's award and the arbitrator's award. Threatt v. Forsyth County, 250 Ga. App. 838, 552 S.E.2d 123 (2001).   Interest accrues at rate of seven percent.    - The 12 percent rate of O.C.G.A. § 7-4-12 applies only to judgments; any interest accruing under O.C.G.A. § 22-2-113 for that period of time following the award of the special master until the jury verdict and entry of a final judgment is to be at the legal interest rate established by § 7-4-2, such rate being seven percent per annum. City of Atlanta v. Wright, 159 Ga. App. 809, 285 S.E.2d 250 (1981).   Payment of amount of verdict as condition precedent to appeal.    - The payment of the amount of the jury verdict in excess of the prior appraisal by assessors, or special master, is a condition precedent to the condemnor seeking a second de novo jury trial. Georgia Power Co. v. Paulk, 131 Ga. App. 218, 205 S.E.2d 484 (1974).   Tender of award to condemnee not condition precedent to condemnor's appeal.    - When a proceeding in rem is brought to condemn property for a public use, tender of the amount awarded by the special master to the apparent or ostensible owner of such property is not a condition precedent to the condemnor's right to pay the award into the registry of the court and enter an appeal to a jury. Hunt v. State Hwy. Dep't, 101 Ga. App. 797, 115 S.E.2d 384 (1960); Tillman v. State Hwy. Dep't, 101 Ga. App. 865, 115 S.E.2d 459 (1960); Slocumb v. Housing Auth., 101 Ga. App. 765, 115 S.E.2d 459 (1960); State Hwy. Dep't v. Taylor, 102 Ga. App. 15, 115 S.E.2d 703 (1960); State Hwy. Dep't v. Farmers Gin Co., 102 Ga. App. 35, 115 S.E.2d 760 (1960).    Refusal by clerk of superior court to pay over amount awarded to condemnee, which had been paid to such clerk by the condemnor in connection with its appeal for a jury trial is not a proper ground for dismissal of such appeal because when the condemnor pays the amount of the award of the assessors into the registry of the court, the condemnor is not thereafter concerned with its distribution, and, further, such condemnor is not responsible for the clerk's actions. State Hwy. Dep't v. Taylor, 102 Ga. App. 15, 115 S.E.2d 703 (1960).   Payment of award by delivery of check.    - The delivery of a check, in the amount of condemnation award, to the clerk of the superior court is not payment of such amount into the registry of the court when sufficient funds to cover such check are not on deposit at the bank on which such check is drawn during the ten day period when an appeal may be filed. State Hwy. Dep't v. Farmers Gin Co., 102 Ga. App. 35, 115 S.E.2d 760 (1960).    Cited in City of Atlanta v. Lunsford, 105 Ga. App. 247, 124 S.E.2d 493 (1962); Golfland, Inc. v. Thomas, 107 Ga. App. 563, 130 S.E.2d 757 (1963); City of Savannah Beach v. Thompson, 135 Ga. App. 63, 217 S.E.2d 304 (1975); Threatt v. Forsyth County, 262 Ga. App. 186, 585 S.E.2d 159 (2003).   RESEARCH REFERENCES   Am. Jur. 2d.   - 4 Am. Jur. 2d, Appellate Review, § 75 et seq.   C.J.S.   - 29A C.J.S., Eminent Domain, § 389 et seq.   ALR.    - Right under constitutional provision against taking or damaging, to recover in other than an eminent domain proceeding, for consequential damages to property no part of which is taken, 20 A.L.R. 516.    Right to interest in condemnation proceedings during owner's retention of possession, 32 A.L.R. 98.   Condemnor's right, as against condemnee, to interest on excessive money deposited in court or paid to condemnee, 99 A.L.R.2d 886.