State Highway Dept. v. McCurdy

• Citation: 124 S.E.2d 630,217 Ga. 731
• Decision Date: 08 March 1962
• Docket Number: No. 21544,21544
• Parties: STATE HIGHWAY DEPARTMENT of Georgia v. Mary McCURDY et al.
• Court: Georgia Supreme Court

Page 630

124 S.E.2d 630

217 Ga. 731

STATE HIGHWAY DEPARTMENT of Georgia v. Mary McCURDY et al.

No. 21544.

Supreme Court of Georgia.

March 8, 1962.

Rehearing Denied March 23, 1962.

Syllabus by the Court

1. General and special demurrers and other defensive pleadings may be filed by the condemnee in a condemnation proceeding in rem brought under Ga.L.1961, p. 517.

2. (a) A declaration of taking filed in connection with a proceeding in rem brought under Ga.L.1961, p. 517 must be signed by the authority empowered by law to condemn in order to be valid.

(b) A declaration of taking filed in connection with a condemnation proceeding in rem brought by the Highway Department of Georgia under Ga.L.1961, p. 517 which is not signed by the members of the State Highway Board, the governing authority of the State Highway Department of Georgia, does not meet the requirement of the act that the declaration of taking must be 'signed by the authority empowered by law to acquire the lands described in the petition * * *.'

The State Highway Department, acting in behalf of the State of Georgia, brought its petition in rem to condemn certain described property for state-aid public road purposes. The action was brought under authority of the Act of the General Assembly approved April 5, 1961 (Ga.L.1961, p. 517). Attached to the petition was Exhibit 'A', a declaration of taking signed by the Attorney General, two Assistant Attorneys General, and by three persons whose names appear above a line under which is written County Attorney DeKalb County. Annexed to Exhibit 'A' is a report of appraisers selected by the Highway Department giving their opinion of the value of the property, and a resolution of the State Highway Board of Georgia reciting that the Board has determined to construct a highway known as Project No. F 061-1(11) DeKalb County, known as the Stone Mountain By-Pass and that it is necessary to condemn certain property for right of way purposes under the Act (Ga.L.1961, p. 517), and describing the property as follows: Parcel 88 Mary McCurdy & Dr. J. Rufus Evans 7.532 Acres. The amount estimated by the Highway Department to be the value of the land sought to be condemned was deposted in the court as required by the act. Upon the filing of the petition, the Judge of the Superior Court of DeKalb County signed an order providing that the property described in the petition and declaration of taking was condemned in fee simple to the use of the State Highway Department as provided by the 1961 Act and that the owners were to show cause on a fixed date why possession of the property should not be surrendered to the Highway Department. The order provided for service and advertisement as required by the Act.

To the petition of condemnation the defendant property owners filed general demurrers alleging that the petition and the declaration of taking did not show a cause of action against them, or any right to the property, and further attacking the petition on the ground that the act under which the proceedings were brought (Ga.L.1961, p. 517), deprived the owners of their property without due process of law as guaranteed by the United States and Georgia Constitutions and denied them equal protection of the law under the United States Constitution.

The trial court sustained the demurrers and dismissed the petition. To this ruling the State Highway Department excepted.

Eugene Cook, Atty. Gen., Carter Goode, E. J. Summerour, Asst. Attys. Gen., Atlanta, George P. Dillard, Robert E. Mozley, Decatur, for plaintiff in error.

Thomas O. Davis, Weekes & Candler, Decatur, for defendants in error.

MOBLEY, Justice.

1. It is now well settled by full bench decisions of this court that general and special demurrers and other defensive pleadings may be filed by the condemnee in a condemnation proceeding in rem. Martin v. Fulton County, 213 Ga. 761, 101 S.E.2d 716; Russell v. Venable, 216 Ga. 137, 143(4), 115 S.E.2d 103. In fact, the court has gone further and held that not only may he do so but he may not bring a separate proceeding to protect his rights where all of his rights can be asserted in the condemnation proceeding. See Fulton County v. Aronson, 216 Ga. 497, 117 S.E.2d 166 and Johnson v. Fulton County, 216 Ga. 498, 117 S.E.2d 155 and cases cited. Plaintiff in error contends that Code Ann., Ch. 36-11 specifically provides that this may be done while the Act of 1961 does not. In our opinion the section of the Act of 1961 which provides that 'all questions of law arising upon the pleadings or in any other way arising from the cause * * * may be passed on by the presiding judge,' contemplates the filing of defensive pleadings and authorizes the trial judge to pass thereon. Furthermore, the reasoning applied in the Martin case, supra, is applicable here because in that case a petition for condemnation in rem was brought against the land and this case is a like action, dissimilar only in that under the 1961 Act a provision is made for a declaration of taking where none existed before. Separate equitable proceedings were necessary to contest condemnation proceedings brought under Code Ann., Ch. 36-3 because under those proceedings no petition of condemnation was filed, nor was there any petition to which demurrers and other defensive pleadings could be filed. The only question at issue in proceedings brought under that chapter was the value of the land. There is no merit in the contention of the Highway Department that 'the proper remedy was not by general demurrer but by a bill in equity brought in the same proceeding.'

2. While the demurrers attack the constitutionality of the Act of 1961 (Ga.L.1961, p. 517), under the opinion we entertain of this case, the constitutional questions are not reached. We are of the opinion that the court properly sustained the...