State Highway Dept. v. Lewallen

• Decision Date: 01 February 1966
• Docket Number: No. 41501,No. 3,41501,3
• Citation: 147 S.E.2d 457,113 Ga.App. 61
• Parties: STATE HIGHWAY DEPARTMENT v. A. J. LEWALLEN
• Court: Georgia Court of Appeals

Page 457

147 S.E.2d 457

113 Ga.App. 61

STATE HIGHWAY DEPARTMENT v. A. J. LEWALLEN.

No. 41501.

Court of Appeals of Georgia, Division No. 3.

Feb. 1, 1966.

Arthur K. Bolton, Atty. Gen., R. L. Chambers, Asst. Atty. Gen., Horace E. Campbell, Jr., Deputy Asst. Atty. Gen., Atlanta, W. A. Ingram, Deputy Asst. Atty. Gen., Cartersville, for appellant.

Mitchell & Mitchell, Erwin Mitchell, Warren N. Coppedge, Jr., Dalton, for appellee.

Syllabus Opinion by the Court

BELL, Presiding Judge.

This is a condemnation case in which the State Highway Department brought proceedings to acquire certain land owned by A. J. Lewallen. After the award of assessors was filed in the office of the clerk of superior court, condemnor appealed, and the case was tried before a jury. Condemnor excepts to the judgment of the trial court denying its amended motion for new trial.

1. Special grounds 1 and 2 of the motion for new trial are controlled adversely to the condemnor by the decision of this court in State Hwy. Dept. v. Thompson, 112 Ga.App. 488, 145 S.E.2d 784, certiorari denied December 6, 1965, and by Elliott v. Fulton County, 220 Ga. 377, 381, 139 S.E.2d 312.

2. Special ground 3 complains of the admission of evidence over objection that the highway project for which condemnee's land was taken was a Federal Aid Project in which the Federal Government would pay 90% and the State Government 10%. While the trial judge erred in admitting this evidence which was immaterial and irrelevant to any issue being tried under the facts of this case, it was harmless to condemnor. State Hwy. Dept. v. J. A. Worley & Co., 103 Ga.App. 25, 27(3), 118 S.E.2d 298.

The two holdings in Division 3 of Worley are so simple that neither should be misunderstood or misapplied by trial courts or counsel.

The first of the holdings is that a trial judge errs in admitting testimony, over proper objection, that the Federal Government is participating with the State in paying the final cost for land taken in a governmental condemnation proceeding. The reason, elemental of course, is that testimony of that type is irrelevant and immaterial to any issue in the case. This holding constitutes the only binding precedent of the two. Thus it is the absolute duty of the trial courts, on proper objection made, to exclude that type testimony.

The second holding in Division 3 in Worley amounts to nothing more than the law of that case. The holding is that the admission of similar testimony over objection, under the facts of that case, was harmless. This holding did not mean,...