State Highway Dept. v. Stewart, 38920

• Decision Date: 22 June 1961
• Docket Number: No. 38920,No. 2,38920,2
• Parties: STATE HIGHWAY DEPARTMENT v. STEWART et al
• Court: Georgia Court of Appeals

Page 278

121 S.E.2d 278

104 Ga.App. 178

STATE HIGHWAY DEPARTMENT v. STEWART et al.

No. 38920.

Court of Appeals of Georgia, Division No. 2.

June 22, 1961.

Rehearing Denied July 14, 1961.

Syllabus by the Court

1. The only issue before the jury on appeal from an award of the special master in a condemnation proceedings and the judgment of the court thereon is the issue as to the value of the property taken or damaged. On appeal by writ of error from the overruling of a motion for a new trial made pursuant to such verdict and judgment, persons named as defendants in the original petition but who were not adjudged by the special master to have any interest in the property sought to be condemned were not necessary parties to the jury trial on the issue of the value of the property taken, nor are they necessary parties in this court. The motion to dismiss on the ground that such parties were not properly served is accordingly denied.

2. An instruction by the trial court to the jury whose only function is to determine the value of the property taken in a condemnation action that 'in this case the valuation is not determined by the market value of the property' is error calculated to prejudice and mislead them. In this case no such special circumstances exist as to render the error harmless.

The State Highway Department filed an action in rem seeking to condemn 8.75 acres of property in the City of Carrollton under the provisions of the Special Master Act, Code Ann. 36-6A, and naming as defendants all the named defendants in error in this bill of exceptions. The award was duly made the judgment of the Superior Court of Carroll County where the action was pending and, on appeal, the issue as to the value of the property was tried de novo before a jury, which returned a verdict finding that the condemnor 'shall pay to Mrs. W. J. Stewart et al., as owner of said property so condemned, the sum of $46,250.' The judgment of the court was that the First National Bank of Atlanta, as executor of the last will and testament of W. J. Stewart, recover said sum. Counsel for both sides stipulated in open court that the case be submitted to the jury on the sole question of compensation for the property taken without regard for consequential damages or benefits. The condemnor filed its motion for a new trial on various general and special grounds, on the denial of which it assigns error.

Eugene Cook, Atty. Gen., Carter Goode, Paul Miller, Asst. Attys. Gen., Robert D. Tisinger, William J. Wiggins, Carrollton, for plaintiff in error.

Shirley C. Boykin, Carrollton, for defendant in error.

TOWNSEND, Presiding Judge.

1. The defendant in error First National Bank of Atlanta has filed a motion to dismiss the writ of error on the ground that service of the bill of exceptions upon all necessary parties has not been obtained as required by law. It appears from the affidavit of a bailiff of a Carroll County militia district that Mrs. W. J. Stewart was served personally with the bill of exceptions and it further appears that the First National Bank acknowledged service. The bailiff served three of the remaining defendants in error personally, and served three others by leaving a copy at their residence in Atlanta, Georgia. This was obviously insufficient service as to these latter three parties under the provisions of Code, § 6-911 providing the mode of service of the bill of exceptions where the defendant in error resides outside the county.

Under Code, § 6-1202 as amended by the Act of 1957 (Ga.L.1957 p. 224) there is a duty upon the appellate court in cases where all necessary parties as shown by the record have not been served to require by proper order that service be effected unless such necessary parties shall have acknowledged or waived service. This act applies only where there is more than one defendant in error, and at least one of them has been properly served. Anderson v. Heyward, 96 Ga.App. 683, 101 S.E.2d 110. It would accordingly be applicable in this case, since Mrs. Stewart and the First National Bank were properly served or acknowledged service. By the following language the statute leaves the decision to the appellate court in certain instances as to whether a party shown by the record to have been involved in the litigation is in fact a necessary party to the appeal: 'No party shall be considered as interested in the litigation in the appellate court who will not be affected by the judgment to be rendered in that particular case, such as sheriffs upon a money rule when the contest is between various claimants of the fund and not between the sheriff and any one of them, or a receiver occupying a similar relation, or a complainant in a bill of interpleader and other parties occupying similar positions. This recital of instances shall not be construed to exclude cases coming under the intention of this section but not mentioned herein.'

We held in Johnson v. Fulton County, Ga.App., 121 S.E.2d 54, that on appeal to the jury from the award of the special master and judgment of the court thereon, the only issue before the jury is the value of the property, and that the jury does not pass upon the respective interests of the various claimants to the fund. In this case the master's award found 'Mrs. W. J. Stewart, life tenant, and the First National Bank of Atlanta, executor and trustee of W. J. Stewart, condemnee' entitled to the proceeds of the property sought to be condemned. The trial in the superior court on the issue of value resulted in a verdict in favor of 'Mrs. W. J. Stewart et al. as owner of said property,' upon which verdict judgment was rendered in favor of 'the First National Bank of Atlanta, as executor of the last will and testament of W. J. Stewart.' Mrs. Stewart and the bank were properly served or acknowledged service. What interest, if any, is claimed by the other persons named in the original petition does not appear, and it is assumed that some or all of them may occupy the status of remaindermen. 'In a bill against an executor, it is not in general necessary that the legatees should be parties.' Beall v. Blake, 16 Ga. 119(3). Since the bank as trustee and executor would represent the interests, if any, of such remainderman, and since this appeal is on the question of value only, and the record shows none of the defendants in error, except the bank and Mrs. Stewart who were...