City of Gainesville v. Smith, s. 44834-44837
| Decision Date | 05 February 1970 |
| Docket Number | Nos. 44834-44837,No. 2,s. 44834-44837,2 |
| Citation | 121 Ga.App. 117,173 S.E.2d 225 |
| Parties | CITY OF GAINESVILLE v. C. E. SMITH (four cases) |
| Court | Georgia Court of Appeals |
Kenyon, Gunter, Hulsey & Sims, William B. Gunter, Samuel L. Oliver, Gainesville, for appellant.
C. E. Smith, Jr., Gainesville, for appellees.
J. Nathan Deal, Gainesville, amicus curiae.
Syllabus Opinion by the Court
The City of Gainesville, as the condemnor in four cases, appeals from that portion of the final judgment awarding the special master $100 in each case under the provisions of § 9 of Ga.L.1957, pp. 387, 391 (Code Ann. § 36-609a) which provides, as here applicable, for compensation 'not to exceed the sum of $50 per day for the time actually devoted to the hearing and consideration of such matter by such special master.' The hearing discloses that the maximum time devoted to any one case varied from 45 minutes to a maximum time of 4 hours. The court, in awarding $100 in each case, based its award expressly on the conclusion 'that the special master actually devoted time to the hearing and consideration of such matter on two different days.' Held:
1. The motion of the special master to dismiss the appeal in each case because he was not a party in the lower court, is not a proper party appellee in this court, and should not be made a party for the first time in this court on appeal, is without merit. Although the special master was not a party to the condemnations, he was treated as if he were a party in respect to the single hearing conducted by the court to determine his compensation in each case, and the judgment in each case is obviously a final judgment as to which the condemnor, being obligated under the law to pay the compensation, is accorded a right of appeal. Inasmuch as the special master's interests will be affected directly by the outcome of the appeals, he is not only a proper party appellee, but an essential party. Moreover, we note that although the condemnees appear in the caption of the appeals as appellees, these condemnees are obviously nominal appellees only who will in no way be affected by the outcome of the appeals, and the fact that they were not served with the notices, even if a procedural deficiency, does not vitiate the appeals.
2. This court is not aware of any controlling precedent to follow in determining the meaning of the statutory phrase 'not to exceed the sum of $50 per day for the time actually devoted to the hearing and consideration of such matter by such special...
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