HOWELL ENTERPRISES, INC. v. City of Atlanta

123 Ga. App. 767 (1971)

182 S.E.2d 331

HOWELL ENTERPRISES, INC. v. CITY OF ATLANTA.

46047.

Court of Appeals of Georgia.

Submitted March 1, 1971.

Decided May 11, 1971.

Nick G. Lambros, for appellant.

Henry L. Bowden, John Dougherty, Howard P. Wallace, for appellee.

PANNELL, Judge.

The City of Atlanta, appellee, filed a condemnation action against Howell Enterprises, Inc., appellant, and others, under the Act of 1957 (Ga. L. 1957, p. 387 et seq.) and the award of the special master, dated April 16, 1969, was filed on April 15, 1969. The City of Atlanta on April 28, 1969, filed its appeal from said award. The trial judge overruled a motion to dismiss the appeal on the ground that it was filed too late. Upon the trial of the case, the jury found a verdict less than the special master's award and Howell Enterprises, Inc., filed a motion for new trial on the general grounds which was overruled. On appeal to this court, error is enumerated on the overruling of the motion to dismiss the appeal to the superior court and on the overruling of the motion for new trial. Held:

1. Section 14 of the Act of 1957 (Ga. L. 1957, pp. 387, 396; Code Ann. § 36-614a) provides that the dissatisfied party may "within 10 days from the time the award is filed, enter in writing an appeal from the award to the superior court of the county where the award is filed ..." It follows, therefore, that the appeal to the jury in the superior court in the present case was filed more than 10 days after April 15, 1969. The trial court erred in not dismissing the appeal.

2. The case having been reversed for failure to dismiss the appeal *768 from the award of the special master to a jury in the superior court, the further proceedings in the case were nugatory, and it is not necessary to pass upon the overruling of the motion for new trial.

Judgment reversed. Bell, C. J., and Deen, J., concur.