State Highway Department v. Sumner , 216 Ga. 92 ( 1960 )

216 Ga. 92 (1960) 115 S.E.2d 189

STATE HIGHWAY DEPARTMENT et al.
v.
SUMNER et al.

20872.

Supreme Court of Georgia.

Argued April 12, 1960. Decided May 18, 1960.

Eugene Cook, Assistant Attorney-General, Paul Miller, E. J. Summerour, Carter Goode, Assistant Attorneys-General, S. B. McCall, for plaintiff in error.

Hugh D. Wright, Maxwell A. Hines, Edward A. Parrish, contra.

QUILLIAN, Justice.

1. Question No. 1, and a part of Question No. 2, in the present case, were answered by this court in response to the questions certified in State Highway Dept. v. Taylor and State Highway Dept. v. Yeager, ante.

2. The portion of Question No. 2 in regard to acts of an attorney for the condemnor is a mixed question of law and fact, and it would be necessary to examine the record in order to answer properly the question. This court must therefore respectfully decline to answer this portion of the question. Fisher v. American Casualty Co., 194 Ga. 157 (21 S.E.2d 68); City of Trenton v. Dade County, 202 Ga. 190 (42 S.E.2d 438).

3. In State Highway Dept. v. Taylor and State Highway Dept. v. Yeager, supra, it was held: "Where the amount of the assessors' award is paid into the registry of the court, and thereafter paid to the condemnee, the condemnee is not precluded, by receiving the money, from attacking the validity of the appeal or moving that it be dismissed." Whether the condemnee might be "legally entitled to a dismissal of the appeal for any reason" would depend upon the reason advanced for the dismissal. The third question certified by the Court of Appeals is too general in character to elicit either an affirmative or a negative response by this court.

Question No. 1 is answered in the negative. All the Justices concur.