Order to Appear; Directions for Notice and Service Thereof; Attachment of Process to Petition; Cause to Proceed as in Rem

1. Law
2. Georgia Code
3. Eminent Domain
4. Condemnation Procedure Generally
5. Proceeding Before Court
6. Order to Appear; Directions for Notice and Service Thereof; Attachment of Process to Petition; Cause to Proceed as in Rem

1. Upon presentation of the petition, the presiding judge shall issue an order requiring the condemnor, the owner of the property or of any interest therein, and the representative of any owner to appear at a time and place named in the order and make known their objections if any, rights, or claims as to the value of the property or of their interest therein, and any other matters material to their respective rights; provided, however, that if the petition includes affidavits from known and located persons with a legal claim, stating that such condemnees do not oppose the condemnation, no hearing pursuant to this Code section shall be required.
2. The day named in the order shall be as early as may be convenient but shall be no less than 20 days from the date of the petition, due regard being given to the necessities of notice.
3. The order shall give appropriate directions for notice and the service thereof.
4. It shall not be necessary to attach any other process to the petition except the order referred to in subsection (a) of this Code section, and the cause shall proceed as in rem.

(Ga. L. 1914, p. 92, § 3; Code 1933, § 36-1106; Ga. L. 2006, p. 39, § 15/HB 1313.)

Editor's notes.

- Ga. L. 2006, p. 39, § 1/HB 1313, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25/HB 1313, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews.

- For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 157 (2006).

JUDICIAL DECISIONS

This section specifically provides nature and character of objections which may be urged before the presiding judge, which include "any other matters material to their respective rights"; matters pertaining to the rights of the condemnee might therefore be raised by general and special demurrers as in other cases, and an adverse ruling on a general demurrer can be reviewed by a direct bill of exceptions prior to any final judgment in the condemnation case. Martin v. Fulton County, 213 Ga. 761, 101 S.E.2d 716 (1958).

Court may enjoin condemnor from taking possession of and entering upon land until the issues made by the petition and defensive pleadings have been determined. Mitchell v. State Hwy. Dep't, 216 Ga. 517, 118 S.E.2d 88 (1961).

Separate suit in equity to enjoin condemnation will not lie.

- Since adequate and complete relief, equitable as well as legal, is afforded any person aggrieved by a condemnation proceeding brought under this article, a separate suit in equity will not lie to enjoin the condemnation proceeding or to contest the constitutionality of the condemnation act of 1914 under which condemnation is proceeding. Mitchell v. State Hwy. Dep't, 216 Ga. 517, 118 S.E.2d 88 (1961).

Cited in State Hwy. Dep't v. H.G. Hastings Co., 187 Ga. 204, 199 S.E. 793 (1938); United States v. A Certain Tract or Parcel of Land, 47 F. Supp. 30 (S.D. Ga. 1942); State Hwy. Dep't v. Hendrix, 215 Ga. 821, 113 S.E.2d 761 (1960).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27 Am. Jur. 2d, Eminent Domain, §§ 409 et seq., 433 et seq.

9A Am. Jur. Pleading and Practice Forms, Eminent Domain, §§ 2 et seq., 6 et seq., 241 et seq.

C.J.S.

- 29A C.J.S., Eminent Domain, § 306 et seq. 72 C.J.S., Process, §§ 1 et seq., 32 et seq.

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