Lackey v. DeKalb County, 60482

• Citation: 156 Ga.App. 309,274 S.E.2d 705
• Decision Date: 03 November 1980
• Docket Number: No. 60482,60482
• Parties: LACKEY et al. v. DeKALB COUNTY.
• Court: United States Court of Appeals (Georgia)

Page 705

274 S.E.2d 705

156 Ga.App. 309

LACKEY et al. v. DeKALB COUNTY.

No. 60482.

Court of Appeals of Georgia.

Argued Sept. 16, 1980.

Decided Nov. 3, 1980.

Mary Jo Workman, Warren O. Wheeler, Atlanta, for appellants.

Gail C. Flake, Decatur, for appellee.

QUILLIAN, Presiding Judge.

In this condemnation action, the condemnee appeals the grant of condemnor's motion to dismiss an appeal from an award. In the order dismissing the appeal the trial judge found:

"It appearing to the Court that the present case i(s) an appeal by the Defendants from an award of assessors, made pursuant to the provisions of Georgia Code § 36-601, the petition to condemn property having been filed on January 27, 1975, and the award of assessors and in rem judgment of court having been filed on January 10, 1975; and,

"It further appearing to the Court that the Defendants filed their appeal from the award of assessors to the Superior Court on June 19, 1975, and that counsel for the Defendants withdrew the award of $19,500.00 from the registry of the Court on July 8, 1975, and that no further action occurred in this case until over four years later, when Defendants filed a request to have the case stipulated to the jury calendar; and,

"It further appearing to the Court that Defendants have shown no good cause for their failure to have the action tried at the first term following the filing of their action as required by law." Held:

1. We are presented with this question: Does the language of Code Ann. § 36-601 (Code § 36-601: as amended Ga.L.1967, p. 143) which provides, concerning an appeal from a condemnation award, that "at the term succeeding the filing of the appeal, it shall be the duty of the judge to cause an issue to be made and tried by a jury" place a burden upon the appellant to have the action tried at the first term or to suffer dismissal of the appeal?

In cases involving somewhat similar statutory provision this court has dismissed appeals on the ground that there was a failure by appellant to obtain a trial at the first term. See Harvey v. Lissner, 124 Ga.App. 448, 184 S.E.2d 184 and Tax Assessors v. Stone Mtn. Industrial Park, 147 Ga.App. 503, 249 S.E.2d 318 both of which construed Code Ann. § 92-6912 (Code 92-6912; as amended through Ga.L.1977, pp. 1009, 1010) (now Code Ann. § 91A-1449, Ga.L.1978; as amended through Ga.L.1980, pp. 1722, 1723) and Huber v. State, 140 Ga.App. 148, 230 S.E.2d 105 which construed Code § 6-601. These cases were predicated on the factor that, as stated in Harvey v. Lissner, 124 Ga.App. 448(2), 184 S.E.2d 184, supra: "The provision of Ga.L.1969, p. 942, requiring the appeal from the arbitrator's decision to be heard before a jury at the first term following the filing of the appeal, concerns and affects both the public interest and the interest of the taxpayer. The public has an interest in the proper administration of the revenue laws and the solvency of its fisc, while the taxpayer is entitled to know promptly and precisely the extent of his tax liability."

In Etheridge v. Etheridge, 242 Ga. 101, 249 S.E.2d 569 the Supreme Court in its consideration of Code § 6-601 found "that no greater duty is placed upon counsel for appellant to bring the case to trial than is placed upon counsel for the appellee." The court further pointed out: "When the appeal of a probate proceeding is docketed with the clerk of the superior court there is no problem with the clerk determining that it is an appeal case, and the type of action involved. It being the express command of the statute that appeal cases be tried by a jury at the first term after the appeal has been entered, it would appear the duty of the clerk to place the same upon the trial calendar for the first term after docketing. If it cannot be reached at that term, or should the court otherwise defer the matter, neither party should be penalized because it has not been reached. Counsel for neither party can control the calendars and trial of cases. Such procedures are in the hands of the court, not counsel." The cited Court of Appeals cases were not approved although it was recognized that they were bottomed on the theory that public interest was involved while the case before the Supreme Court concerned only private parties and private property rights.

It should be observed that the statutes considered in those cases provided for the appeal to be heard before or tried by a jury at the first term following the filing of the appeal. In the case sub judice the statute clearly provides that it shall be the duty of the judge to cause an issue to be made. Although this is a...