City of Atlanta v. Lunsford, 39321

• Decision Date: 29 January 1962
• Docket Number: No. 39321,No. 3,39321,3
• Citation: 105 Ga.App. 247,124 S.E.2d 493
• Parties: CITY OF ATLANTA v. Joel LUNSFORD
• Court: Georgia Court of Appeals

Page 493

124 S.E.2d 493

105 Ga.App. 247

CITY OF ATLANTA v. Joel LUNSFORD.

No. 39321.

Court of Appeals of Georgia, Division No. 3.

Jan. 29, 1962.

Syllabus by the Court

Where, in a condemnation proceeding under the 'three assessor' law as contained in Chapter 36 of the Code, the amount of the final judgment is less than the award made by the assessors, the condemnee is not liable for the payment of interest on the difference in the amount of the award and the judgment except from the date of the judgment.

Under its power of eminent domain the City of Atlanta filed a condemnation proceeding to acquire certain land owned by Joel Lunsford as a part of the right of way for an expressway. The proceeding was brought under the 'three assessor' method as provided in Chapter 36 of the Code. In due course the assessors made their award on September 11, 1957. On October 3, 1957 the city paid the amount thereof into the registry of the court and both parties, within the time provided by Code § 36-601, entered their appeal to a jury in Fulton Superior Court. On February 5, 1958 the condemnee withdrew the amount of the award from the registry of the court.

When the case came on for trial before a jury a verdict was rendered in favor of the condemnee for a sum less than the amount of the assessors' award, and judgment was entered in favor of the City of Atlanta against the condemnee for the difference in said amounts. The city insisted that the judgment include interest on the amount, i. e., the difference between the award and the jury verdict either (a) from the time payment of the amount of the award had been made into the registry of the court, or (b) from the time when the condemnee had withdrawn the amount of the award from the registry. The court declined to include interest in its judgment on either basis, and the city assigns error.

J. C. Savage, Martin McFarland, Atlanta, for plaintiff in error.

Poole, Pearce & Hall, William F. Lozier, Atlanta, for defendant in error.

EBERHARDT, Judge.

1. No mention of interest is made in Code § 36-603, which is the section applicable here. It simply provides that, in the event the final judgment fixing the amount to be paid for the land taken is less than the amount of the award of the assessors, the condemnee shall be bound to refund any excess paid to or received by him.

'The law allows interest only because of a contract, express or implied, for its payment, or as damages for the detention of money, or for breach of some contract, or the violation of some duty. It is very generally stated that interest, being of purely statutory origin and not the creature of the common law, should not be awarded except in such cases as fall within the terms of the statute, unless it has been contracted for either expressly or impliedly. In other words, there is no absolute right, independent of contract, express or implied, or of statute, to interest.' Best v. Maddox, 185 Ga. 78, 82, 194 S.E. 578. Accord, Irons v. Harrison, 185 Ga. 244(8), 194 S.E. 749; Gormley v. Eison, 189 Ga. 259, 5 S.E.2d 643. This principle has been applied specifically to a condemnation proceeding such as we here deal with. St. Louis, K. & N. W. R. Co. v. Knapp, Stout & Co., 160 Mo. 396, 61 S.W. 300.

Certainly there is no express contract on the part of the condemnee to pay interest on any amount, nor do we find any basis for holding that there is any implied contract on his part to do so. The amount of the assessors' award is required to be paid by the condemnor, and it is made available to the condemnee from the time of such payment under the provisions of Art. I, Sec. III, Par. I of the Constitution of 1945 (Code Ann. § 2-301), which provides that just compensation must be 'first paid.' State Highway Dept. v. Hendrix, 215 Ga. 821, 113 S.E.2d 761. The condemnation proceeding is, as to the condemnee, involuntary. If the amount of the award were not made available to the condemnee before the taking of his land, it would result in his being deprived of the use of his land and of the money which the assessors have determined to represent just compensation therefor until a final judgment could be obtained. Often there is considerable delay between the time of the assessors' award and the trial before a jury. At the time the condemnee takes his money down, it is only natural that he has hope that the amount of the jury verdict will be equal to or in excess of the amount of the assessors' award. Neither the condemnor, the condemnee, nor the court can know what the...