|
| 
|
|
| HB 155 - Condemnation cases; assessors; certain notice |
First Reader Summary
A BILL to amend Chapter 2 of Title 22 of the Official Code of
Georgia Annotated, relating to condemnation procedures generally,
so as to establish qualifications and payment for assessors; to
provide for award of reasonable expenses in condemnation cases;
to repeal the provisions relating to special masters in
condemnation cases; to amend Article 1 of Chapter 3 of Title 32
of the Official Code of Georgia Annotated; and for other
purposes.
Page Numbers -
1/
2/
3/
4/
5/
6/
7/
8/
9/
10/
11/
12/
13/
14/
15
| House
| Action
| Senate
|
| 1/15/97
| Read 1st Time
| 3/5/98
|
| 1/16/97
| Read 2nd Time
| 3/12/98
|
| 2/11/98
| Favorably Reported
| 3/12/98
|
| Sub
| Committee Amend/Sub
|
|
| 3/3/98
| Read 3rd Time
| 3/18/98
|
| 3/3/98
| Passed/Adopted
| 3/18/98
|
| CSFA
| Comm/Floor Amend/Sub
| FA
|
| 3/19/98
| Amend/Sub Agreed To
|
|
| 4/7/98
| Sent to Governor
|
|
| 4/23/98
| Signed by Governor
|
|
| 979
| Act/Veto Number
|
|
| 7/1/98
| Effective Date
|
|
HB 155 HB 155/AP
H. B. No. 155 (AS PASSED HOUSE AND SENATE)
By: Representative Dobbs of the 92nd
A BILL TO BE ENTITLED
AN ACT
1- 1 To amend Chapter 2 of Title 22 of the Official Code of
1- 2 Georgia Annotated, relating to condemnation procedures
1- 3 generally, so as to establish qualifications and payment for
1- 4 assessors; to provide for award of reasonable expenses in
1- 5 condemnation cases; to provide for the substantial revision
1- 6 of provisions relating to special masters in condemnation
1- 7 cases; to provide for special master panels; to provide for
1- 8 powers, duties, and procedures; to amend Article 1 of
1- 9 Chapter 3 of Title 32 of the Official Code of Georgia
1-10 Annotated, relating to general provisions regarding the
1-11 acquisition of property for transportation purposes, so as
1-12 to change the provisions relating to notices and
1-13 advertisements; to change the provisions relating to
1-14 interlocutory hearings regarding adequate compensation; to
1-15 provide an effective date; to repeal conflicting laws; and
1-16 for other purposes.
1-17 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
1-18 SECTION 1.
1-19 Chapter 2 of Title 22 of the Official Code of Georgia
1-20 Annotated, relating to condemnation procedures generally, is
1-21 amended by striking Code Section 22-2-40, relating to
1-22 selection of assessors generally, and inserting in its place
1-23 the following:
1-24 "22-2-40.
1-25 (a) The condemnor and the condemnee shall each select an
1-26 assessor, and the two assessors so selected shall select a
1-27 third assessor. No person shall be selected as an
1-28 assessor unless such person is a real estate appraiser who
1-29 has an appraiser classification of certified general
1-30 appraiser granted under Chapter 39A of Title 43, the 'Real
1-31 Estate Appraiser and Classification Act.' The condemnor
1-32 shall be liable for the costs of the assessor selected by
1-33 or for the condemnor, the condemnee shall be liable for
1-34 the costs of the assessor selected by or for the
-1-
2- 1 condemnee, and the costs of the assessor selected by the
2- 2 other assessors or by the judge shall be split equally
2- 3 between the condemnor and condemnee. The combined total
2- 4 costs of all three assessors shall not exceed $500.00 per
2- 5 day.
2- 6 (b) The assessors selected as provided in subsection (a)
2- 7 of this Code section shall have no authority to decide
2- 8 questions of law including, but not limited to, issues of
2- 9 compensability.
2-10 (c) The assessors selected as provided in subsection (a)
2-11 of this Code section shall have the authority to refer
2-12 questions of law to the appropriate superior court prior
2-13 to entering an award. Neither party shall be prohibited
2-14 from appealing a question of law to the superior court
2-15 after the entry of the assessor's award."
2-16 SECTION 2.
2-17 Said chapter is further amended by striking Code Section
2-18 22-2-84, relating to payments to assessors, and inserting in
2-19 its place the following:
2-20 "22-2-84.
2-21 (a) In all cases, the clerk shall enter the notice and
2-22 award thereon upon the minutes of the court, and the
2-23 condemnor shall pay:
2-24 (1) To each assessor, $10.00 for each day or any
2-25 fraction thereof, provided that upon showing of
2-26 extraordinary services or expenses the judge of the
2-27 superior court may award costs in excess of the above
2-28 amount for each day or fraction thereof devoted by each
2-29 assessor to any case; and The assessors' costs as
2-30 provided in Code Section 22-2-40; and
2-31 (2) Other costs as provided by law in civil cases in the
2-32 superior court.
2-33 The condemnee shall pay the assessors' costs as provided
2-34 in Code Section 22-2-40. (b) In any case in which any county of this state having a
2-36 population of 500,000 or more according to the United
2-37 States decennial census of 1990 or any future such census
2-38 condemns any property or any interest therein lying within
2-39 the limits of such county, said county so condemning shall
2-40 pay to each assessor such costs as shall be fixed in the
2-41 case by the judge of the superior court, not to exceed
-2-
3- 1 $25.00 for each day or fraction thereof devoted by such
3- 2 assessor to the case. (c) The State of Georgia and its political subdivisions
3- 4 shall be exempt from this Code section, except as
3- 5 otherwise provided in this Code section.
3- 6 22-2-84.1.
3- 7 (a) If the condemnor appeals to the superior court from
3- 8 the assessors' award, the condemnor shall be liable for
3- 9 reasonable expenses incurred by the condemnee in
3-10 determining just and adequate compensation in the superior
3-11 court unless the judgment in such court is for an amount
3-12 of compensation which is less than the assessors' award by
3-13 at least 20 percent. If the condemnee appeals to the
3-14 superior court from the assessors' award, the condemnee
3-15 shall be liable for reasonable expenses incurred by the
3-16 condemnor in determining just and adequate compensation in
3-17 the superior court unless the judgment in such court is
3-18 for an amount of compensation which is greater than the
3-19 assessors' award by at least 20 percent. If both the
3-20 condemnor and condemnee appeal to the superior court from
3-21 the assessors' award, neither shall be liable for the
3-22 other's appeal expenses.
3-23 (b) As used in this Code section, reasonable expenses
3-24 include, without being limited to, attorneys' fees. The
3-25 amount of such expenses shall be decided by the judge in
3-26 the condemnation proceeding and shall be a separate entry
3-27 upon the award or final judgment.
3-28 (c) The provisions of this Code section apply to
3-29 condemnations pursuant to this title and to those pursuant
3-30 to Chapter 3 of Title 32. For purposes of this Code
3-31 section, a condemnee in a proceeding under Chapter 3 of
3-32 Title 32 will be deemed to have appealed the assessors'
3-33 award only if the condemnee does not notify the court to
3-34 dismiss the condemnee's appeal within the time specified
3-35 for such notice in subsection (g) of Code Section 32-3-15.
3-36 For purposes of this Code section, a condemnor in a
3-37 proceeding under Chapter 3 of Title 32 will be deemed to
3-38 have appealed the assessors' award only if the condemnor
3-39 files with the court a notice objecting to the condemnee's
3-40 dismissal of the appeal within the time specified in
3-41 subsection (g) of Code Section 32-3-15.
3-42 (d) Notwithstanding any other provision of this Code
3-43 section, neither the condemnor nor the condemnee shall be
-3-
4- 1 required to pay the other party's costs and attorney's
4- 2 fees related to the litigation and appeal of issues of law
4- 3 including, but not limited to, issues of compensability."
4- 4 SECTION 3.
4- 5 Said chapter is further amended by striking Code Section
4- 6 22-2-108, relating to powers and duties of the special
4- 7 master generally, and inserting in its place new Code
4- 8 Sections 22-2-108 and 22-2-108.1 to read as follows:
4- 9 "22-2-108.
4-10 The special master appointed pursuant to Code Section
4-11 22-2-103 shall serve in lieu of a board of assessors; and
4-12 his provided, however, that if two assessors are selected
4-13 pursuant to Code Section 22-2-108.1, the special master
4-14 shall serve as the chairperson of the special master panel
4-15 and shall decide all issues other than value issues which
4-16 arise at the hearing provided for in Code Section
4-17 22-2-102. The special master's duties and authority,
4-18 except as otherwise provided for in this article, shall be
4-19 the same as provided by Code Sections 22-2-61 through
4-20 22-2-63. The special master shall hold the hearing
4-21 provided for in Code Section 22-2-102 at the time and
4-22 place provided by the order of the judge of the superior
4-23 court and in compliance with the duties and authority
4-24 conferred by this article. The special master shall not
4-25 be authorized to continue or delay the hearing, except as
4-26 otherwise provided by Code Section 22-2-108.1, relating to
4-27 granting of a recess for selection of assessors, or by
4-28 Code Section 9-10-150, relating to granting continuances
4-29 by reason of membership in the General Assembly during
4-30 sessions thereof, or except upon the written order of the
4-31 judge of the superior court; and such a continuance shall
4-32 be granted only for good cause shown to that judge. When
4-33 it shall be necessary for the judge to grant a
4-34 continuance, the continuance shall be for not more than
4-35 five days from the date of the order granting the
4-36 continuance.
4-37 22-2-108.1.
4-38 (a) At any time at least five calendar days before
4-39 commencement of the hearing specified in the order of the
4-40 judge of the superior court, the condemnee or any other
4-41 person having a right or interest in the property may, by
4-42 written notice served on the condemnor and all other
4-43 parties to the proceeding, select an assessor to hear and
-4-
5- 1 decide value issues at the hearing. Within five days
5- 2 after receipt of such notice, the condemnor shall, by
5- 3 written notice served on the condemnee and all other
5- 4 parties to the proceeding, select an assessor to hear and
5- 5 decide value issues at the hearing. The provisions of
5- 6 Code Sections 22-2-40 and 22-2-41 shall apply to the
5- 7 selection of such assessors; provided, however, that the
5- 8 special master appointed pursuant to Code Section 22-2-103
5- 9 shall serve as the third assessor, shall be compensated as
5-10 provided for in Code Section 22-2-106, and shall continue
5-11 to perform the duties set forth in Code Section 22-2-108.
5-12 Notwithstanding the number of condemnees or any other
5-13 persons having a right or interest in the property, only
5-14 one assessor shall be selected on behalf of all such
5-15 condemnees or interested parties.
5-16 (b) In the event that the notice selecting an assessor by
5-17 the condemnee or other person having a right or interest
5-18 in the property is not served on the condemnor more than
5-19 five days before the time on which the hearing is to
5-20 commence as specified in the order of the judge of the
5-21 superior court, the special master shall convene the
5-22 hearing at the time and place specified in the order; and
5-23 if requested by the condemnor, the special master shall
5-24 then recess the hearing to a date certain, but not more
5-25 than five calendar days after such time, to allow the
5-26 condemnor additional time to select an assessor.
5-27 (c) After the condemnee or other person having a right or
5-28 interest in the property has selected an assessor and the
5-29 condemnor has selected an assessor, the special master and
5-30 the two assessors selected by the parties shall constitute
5-31 the special master panel and, except as otherwise provided
5-32 in this article, shall perform the duties provided by Code
5-33 Sections 22-2-61 through 22-2-63. A majority of the
5-34 special master panel shall decide all value issues which
5-35 arise at the hearing provided for in Code Section 22-2-102
5-36 and shall prepare and submit the award as provided in Code
5-37 Section 22-2-110."
5-38 SECTION 4.
5-39 Said chapter is further amended by striking Code Section
5-40 22-2-109, relating to factors to be considered with respect
5-41 to condemnation, and inserting in its place a new Code
5-42 Section 22-2-109, to read as follows:
-5-
6- 1 "22-2-109.
6- 2 (a) In determining or estimating just and adequate
6- 3 compensation to be paid to the owner of any property or
6- 4 interest condemned for public road and street purposes,
6- 5 neither the special master nor the special master panel,
6- 6 in the event such a panel exists, nor the jury, in the
6- 7 event of an appeal to a jury, shall be restricted to the
6- 8 agricultural or productive qualities of the land; but
6- 9 inquiry shall be made as to all other legitimate purposes
6-10 to which the land could be appropriated. The date of
6-11 taking as contemplated in this Code section shall be the
6-12 date of the filing of the condemnation proceedings for the
6-13 acquisition of the property or interest.
6-14 (b) The condemning authority shall cause the petition for
6-15 condemnation to set forth the date of the approval of the
6-16 original location of the highway. It shall be the further
6-17 duty of the condemning authority, within 30 days from the
6-18 date of the original approval and designation of said
6-19 location as a highway, to cause the location of said
6-20 highway in said county to be advertised once each week for
6-21 four consecutive weeks in the newspaper of the county in
6-22 which the sheriff's advertisements are carried; and said
6-23 advertisement shall designate the land lots or land
6-24 districts of said county through which such highway will
6-25 be located. Said advertisement shall further show the date
6-26 of the said original location of such highway as
6-27 hereinbefore provided for in this subsection. Said
6-28 advertisement shall further state that a plat or map of
6-29 the project showing the exact date of original location is
6-30 on file at the office of the Department of Transportation,
6-31 and that any interested party may obtain a copy of same by
6-32 writing to the Department of Transportation (2 Capitol
6-33 Square, Atlanta, Georgia 30334) and paying a nominal cost
6-34 therefor.
6-35 (c) In determining just and adequate compensation for
6-36 property or interests taken or condemned for public road
6-37 and street purposes, the award of the special master or
6-38 the special master panel, in the event such a panel
6-39 exists, or the verdict of the jury, in the event of an
6-40 appeal, shall, in addition to fixing the value of the land
6-41 actually taken and used for such purposes, take into
6-42 consideration the prospective and consequential damages to
6-43 the remaining property or interest from which the property
6-44 or interest actually taken was cut off, which
-6-
7- 1 consequential damages result to such remaining property or
7- 2 interest because of the location of such public road or
7- 3 street upon the portion actually taken. In addition, the
7- 4 increase of the value of such remaining property or
7- 5 interest from the location of such public road or street
7- 6 shall be considered. Such consequential benefits, if any,
7- 7 may be offset against such consequential damages, if any;
7- 8 but in no event shall consequential benefits be offset
7- 9 against the value of the property or interest taken for
7-10 such public improvement."
7-11 SECTION 5.
7-12 Said chapter is further amended by striking Code Section
7-13 22-2-110, relating to special master awards, and inserting
7-14 in its place a new Code Section 22-2-110 to read as follows:
7-15 "22-2-110.
7-16 (a) The award of the special master or the special master
7-17 panel, in the event such a panel exists, shall be filed
7-18 with the clerk of the superior court of the county where
7-19 the property or interest is situated within three days
7-20 after the date of on which such hearing is completed.
7-21 (b) The award shall become a part of the record of the
7-22 proceedings in said matter and shall condemn and vest
7-23 title to the property or other interest in the condemning
7-24 body upon the deposit by that body of the amount of the
7-25 award into the registry of the court, subject to the
7-26 demand of such condemnee or condemnees, according to their
7-27 respective interests.
7-28 (c) The award shall be in the following form:
7-29 AWARD OF SPECIAL MASTER
7-30 I, _____________________, the The special master
7-31 appointed and chosen by the court to hear evidence, give
7-32 full consideration to all matters touching upon the
7-33 value of the property or interest sought to be
7-34 condemned, as shown by the description of the property
7-35 or interest in the case of ________________________
7-36 (condemning body) versus
7-37 _________________________________ (acres of land or
7-38 other described interest in said land) and
7-39 ____________________ (condemnee), Civil action file
7-40 no._____ in superior court, and having first taken the
7-41 oath as required by law of the special master, the same
7-42 having been filed with the clerk of the Superior Court
-7-
8- 1 of ________ County and the special master panel, in the
8- 2 event such a panel exists, having heard evidence under
8- 3 oath and given consideration to the value of such
8- 4 property or interest on the ______ day of
8- 5 ______________, at ___:___ _.M., as provided for in the
8- 6 order of the court, do decide and recommend to the court
8- 7 as follows:
8- 8 (1) I I/We find and award to ______________,
8- 9 condemnee, the sum of $______, as the actual market
8-10 value of the property or interest sought to be
8-11 condemned;
8-12 (2) I I/We find consequential damages to the remaining
8-13 property or interest in the amount of $______;
8-14 (3) I I/We find consequential benefits to the
8-15 remaining property or interest in the amount of
8-16 $______ (never to exceed the amount of the
8-17 consequential damages);
8-18 (4) Balancing the consequential benefits against the
8-19 consequential damages, I I/we find and award to the
8-20 condemnee in this case in the total sum of $_______,
8-21 and I I/we respectfully recommend to the court that
8-22 the said property or interest be condemned by a
8-23 judgment in rem to the use of the condemnor upon the
8-24 payment of the last stated sum into the registry of
8-25 the court, subject to the demands of the condemnee.
8-26 This ______ day of ______________, ____.
8-27 (d) In any case where there is an appeal from the award of
8-28 the special master or the special master panel, in the
8-29 event such a panel exists, to a jury in the superior
8-30 court, the such award of the special master shall not be
8-31 competent evidence. Any such appeal shall be a de novo
8-32 investigation, and the such award of the special master
8-33 shall be detached from the papers in the case before the
8-34 same are delivered to the jury."
-8-
9- 1 SECTION 6.
9- 2 Said chapter is further amended by striking Code Section
9- 3 22-2-111, relating to special master awards and court
9- 4 judgments, and inserting in its place a new Code Section
9- 5 22-2-111 to read as follows:
9- 6 "22-2-111.
9- 7 Upon the entry of the award of the special master or the
9- 8 special master panel, if such a panel exists, and the
9- 9 presentation of the award to the judge of the superior
9-10 court, the judge shall enter a proper order and judgment
9-11 of the court condemning the described property or other
9-12 interest in rem to the use of the condemnor upon the
9-13 condemnor's paying into the registry of the court the
9-14 amount provided in the award of the special master."
9-15 SECTION 7.
9-16 Said chapter is further amended by striking Code Section
9-17 22-2-112, relating to appeal of special master awards, and
9-18 inserting in its place a new Code Section 22-2-112 to read
9-19 as follows:
9-20 "22-2-112.
9-21 In case any party is dissatisfied with the amount of the
9-22 award, he or she may, within ten days after the award is
9-23 filed, enter in writing an appeal from the award to the
9-24 superior court of the county where the award is filed.
9-25 The provisions of Code Section 22-2-84.1, relating to
9-26 reasonable expenses incurred on appeal, shall apply to any
9-27 appeal under this Code section. At the term succeeding
9-28 the filing of the appeal, it shall be the duty of the
9-29 judge to cause an issue to be made and tried by a jury as
9-30 to the value of the property or interest taken or the
9-31 amount of damage done, with the same right to move for a
9-32 new trial and file an appeal as in other cases at law. The
9-33 entering of an appeal and the proceedings thereon shall
9-34 not hinder or delay in any way the condemnor's work or the
9-35 progress thereof."
9-36 SECTION 8.
9-37 Said chapter is further amended by striking Code Section
9-38 22-2-113, relating to payment of special master awards, and
9-39 inserting in its place a new Code Section 22-2-113 to read
9-40 as follows:
-9-
10- 1 "22-2-113.
10- 2 (a) The tender, payment, or acceptance of the amount of
10- 3 the award shall not prevent any party from prosecuting the
10- 4 appeal.
10- 5 (b) Where separate and distinct parcels of property are
10- 6 condemned in the same proceeding, the owner of any
10- 7 separate and distinct property may file a separate appeal
10- 8 to a jury in the superior court.
10- 9 (c) If the amount awarded by the special master or the
10-10 special master panel, if such a panel exists, is less than
10-11 that found by the verdict of the jury, the condemnor shall
10-12 be bound to pay the sum so finally adjudged less the
10-13 amount previously deposited as provided in Code Section
10-14 22-2-110 plus lawful interest on the difference from the
10-15 date of the order of the special master such deposit, in
10-16 order to retain the property.
10-17 (d) If the condemnor fails to pay the amount of the award
10-18 or judgment within ten days after the same is filed or
10-19 entered, then the clerk shall issue execution upon such
10-20 award or judgment which may be levied upon any property of
10-21 the condemnor."
10-22 SECTION 9.
10-23 Said chapter is further amended by striking Code Section
10-24 22-2-114, relating to deposit of special master awards, and
10-25 inserting in its place a new Code Section 22-2-114 to read
10-26 as follows:
10-27 "22-2-114.
10-28 When the condemnor has paid into the registry of the court
10-29 the amount provided for in the award of the special master
10-30 or the special master panel, if such a panel exists, for
10-31 the use and benefit of and subject to the demands of the
10-32 condemnees, the effect of such payment into the registry
10-33 of the court shall be the same as if paid to the
10-34 condemnees directly, provided that the clerk shall pay out
10-35 the money to the condemnees or their personal
10-36 representatives upon proper proof submitted to him or her
10-37 as to the quantity of their interests. Where there are
10-38 conflicting claims, the clerk may require the conflicting
10-39 parties to establish their claims before the court as is
10-40 provided by law in other similar matters."
-10-
11- 1 SECTION 10.
11- 2 Article 1 of Chapter 3 of Title 32 of the Official Code of
11- 3 Georgia Annotated, relating to general provisions regarding
11- 4 the acquisition of property for transportation purposes, is
11- 5 amended by striking in its entirety Code Section 32-3-5,
11- 6 relating to the contents of condemnation petitions, and
11- 7 inserting in lieu thereof the following:
11- 8 "32-3-5.
11- 9 (a) The petition referred to in Code Section 32-3-4 shall
11-10 set forth:
11-11 (1) The facts showing the right to condemn;
11-12 (2) The property or interests to be taken or damaged;
11-13 (3) The names and residences of the persons whose
11-14 property or interests are to be taken or otherwise
11-15 affected, so far as known;
11-16 (4) Descriptions of the persons or classes of unknown
11-17 persons whose rights therein are to be excluded or
11-18 otherwise affected;
11-19 (5) Such other facts as are necessary for a full
11-20 understanding of the cause; and
11-21 (6) A prayer for the judgment of the court in accordance
11-22 with Code Section 32-3-13 or 32-3-19; and
11-23 (7) The date of the approval of the original location of
11-24 the highway.
11-25 (b) If any of the persons referred to in the petition are,
11-26 so far as may be known, minors or under disability, that
11-27 fact shall be stated.
11-28 (c) It shall be the duty of the condemning authority,
11-29 within 30 days from the date of the original approval and
11-30 designation of said location as a highway, to cause the
11-31 location of said highway in said county to be advertised
11-32 once each week for four consecutive weeks in the newspaper
11-33 of the county in which the sheriff's advertisements are
11-34 carried; and said advertisement shall designate the land
11-35 lots or land districts of said county through which such
11-36 highway will be located. Said advertisement shall further
11-37 show the date of the original location of such highway as
11-38 provided for in this subsection. Said advertisement shall
11-39 further state that a plat or map of the project showing
11-40 the exact date of the original location is on file at the
-11-
12- 1 office of the Department of Transportation and that any
12- 2 interested party may obtain a copy of same by writing to
12- 3 the Department of Transportation and paying a nominal cost
12- 4 therefor."
12- 5 SECTION 11.
12- 6 Said article is further amended by striking subsection (b)
12- 7 of Code Section 32-3-9, relating to service upon
12- 8 nonresidents, and inserting in its place the following:
12- 9 "(b) Where the address of the nonresident is unknown,
12-10 whether he such nonresident is the owner of the property,
12-11 a minor, or the trustee or guardian of such minor or has
12-12 any other lawful interest in the property, the method of
12-13 advertising the condemnation of the particular property,
12-14 as provided for in Code Sections 22-2-109 and 22-2-137,
12-15 relating to eminent domain procedures before a special
12-16 master, subsection (c) of Code Section 32-3-5, shall be
12-17 sufficient service upon such nonresidents and shall be
12-18 final and conclusive; provided, however, that, in that
12-19 event, it shall be the duty of the condemnor, in filing
12-20 the petition for condemnation, to certify that the address
12-21 of such person or persons is unknown to the condemnor;
12-22 provided, further, that it shall be the duty of the
12-23 sheriff of the county wherein the condemnation is pending
12-24 to inquire into the truth of such allegation and to enter
12-25 a certificate upon the condemnation proceeding, within
12-26 three days from the filing of the same, verifying the
12-27 truth of the allegation. This certificate, together with
12-28 the method of advertising of such condemnation proceedings
12-29 provided for in the laws and statutes described above,
12-30 shall be final and conclusive as to lawful service of the
12-31 petition for condemnation upon the nonresident. For each
12-32 such certificate, the sheriff shall receive the fee he the
12-33 sheriff receives for like service for each such
12-34 certificate, the same to be taxed as other costs in the
12-35 case."
12-36 SECTION 12.
12-37 Said article is further amended by striking Code Section
12-38 32-3-15, relating to interlocutory hearings upon
12-39 compensation, and inserting in its place the following:
12-40 "32-3-15.
12-41 (a) An appeal having been filed as provided in Code
12-42 Section 32-3-14, the appellant or appellants, at any time
-12-
13- 1 before the beginning of the trial of the issue formed on
13- 2 such appeal, but not later than 90 days after the date of
13- 3 service as provided in Code Sections 32-3-8 and 32-3-9,
13- 4 may file in the case a petition for an interlocutory
13- 5 hearing on the issue of whether the amount deposited in
13- 6 court as just and adequate compensation is sufficient.
13- 7 Such petition shall be served as may be directed by the
13- 8 court. The petition shall be verified and shall state the
13- 9 amount which is claimed by the petitioner to represent
13-10 just and adequate compensation, together with a sworn,
13-11 written statement of the facts upon which the claim is
13-12 based.
13-13 (b) Upon the presentation of the interlocutory petition to
13-14 the judge of the court in which the case is pending, the
13-15 case shall be referred to a special master appointed under
13-16 Article 2 of Chapter 2 of Title 22. The special master
13-17 shall determine from: court shall make such order as to
13-18 the appointment of assessors as shall conform most nearly
13-19 to Article 1 of Chapter 2 of Title 22 and shall give all
13-20 interested persons equal rights in the selection thereof.
13-21 If by reason of conflicting interests or otherwise such
13-22 equality of right cannot be preserved, the judge shall
13-23 make such order on the subject as shall secure a fair and
13-24 impartial assessment. The board of assessors so appointed
13-25 shall determine from all evidence offered by the parties,
13-26 from personal inspection of the premises, and from its own
13-27 professional judgment (1) The declaration of taking; (2) The sworn exhibit of the appraiser's statement
13-30 justifying the sum of money estimated to be just
13-31 compensation which is attached to the declaration of
13-32 taking; but such exhibit shall be considered only if the
13-33 appraiser appears at the hearing before the special
13-34 master, is sworn, presents testimony on such valuation,
13-35 and is available for cross-examination; (3) The verified interlocutory petition; (4) Personal inspection of the premises; and (5) Other evidence presented at the hearing required by
13-39 Code Section 22-2-102, ten 30 days of the date of reference to him such
-13-
14- 1 board, make an interlocutory award based upon such
14- 2 determination.
14- 3 (c) Upon approval of the interlocutory award by the court
14- 4 and service of a copy upon the condemnor, as may be
14- 5 directed by the court, the condemnor shall within 15 days
14- 6 pay into court any additional amount required to be paid
14- 7 pursuant to the interlocutory award.
14- 8 (d) Upon the application of the party or parties in
14- 9 interest at any time before a jury verdict on the appeal,
14-10 the court shall order that the additional money deposited
14-11 in court be paid forthwith to the parties found to be
14-12 entitled thereto; provided, however, that any party or
14-13 parties receiving any payment of any amount paid into
14-14 court pursuant to an interlocutory award shall, before
14-15 receiving such payment, file in the case a bond in the
14-16 amount of such payment conditioned for the repayment of
14-17 any amount so received by such party which may be in
14-18 excess of the amount awarded by the jury upon the trial of
14-19 the appeal. Such bond shall be executed by a surety
14-20 company authorized to do business in this state; and, in
14-21 the event the amount awarded by the jury on final trial of
14-22 the appeal is less than the total amount paid into court
14-23 by the condemnor, judgment may be entered against the
14-24 principal and surety on the bond for the amount by which
14-25 the total amount paid into court exceeds the amount
14-26 awarded by the jury; and, if the amount awarded by the
14-27 jury is less than the original deposit, judgment may be
14-28 entered against the condemnee for that part of the
14-29 judgment not covered by the bond.
14-30 (e) The special master assessors shall be compensated as
14-31 provided in Article 2 of Chapter 2 of Title 22 or any
14-32 other provision of law Code Section 22-2-84.
14-33 (f) The interlocutory award provided for in this Code
14-34 section shall not be subject to exceptions to any higher
14-35 court and shall not be vacated or modified after 15 days.
14-36 (g) If the condemnee notifies the court in writing to
14-37 dismiss the appeal filed by the condemnee pursuant to Code
14-38 Section 32-3-14 within 15 days following the date the
14-39 interlocutory award is approved by the court, that
14-40 interlocutory award shall become the final judgment in the
14-41 proceeding and shall not be vacated or modified, and that
14-42 appeal shall be dismissed unless the condemnor files with
14-43 the court a notice objecting to such dismissal within 15
-14-
15- 1 days following the date the condemnee notified the
15- 2 condemnor of the notice to dismiss such appeal."
15- 3 SECTION 13.
15- 4 This Act shall become effective July 1, 1998.
15- 5 SECTION 14.
15- 6 All laws and parts of laws in conflict with this Act are
15- 7 repealed.
-15-
Clerk of the House
Robert E. Rivers, Jr., Clerk
Last Updated on 05/04/98