Smith v. Georgia Power Co.
Smith v. Georgia Power Co.
Opinion of the Court
Appellee instituted condemnation proceedings to acquire an easement in two tracts of land. Tract 1 on the west side of the road was owned by appellant, and tract 2 on the east side of the road was owned jointly by appellant and his sister, Mrs. Mary Michaels. Following
1. Appellant enumerates that the court erred in entering the judgment in favor of appellee when appellee had not timely appealed the award of the special master. Appellant contends that since condemnor appellee had not entered an appeal to a jury on the question of value or damages for the taking, the jury could only increase the award but could not reduce it, citing Commonwealth Dept. of Highways v. Berryman (Ky.) 363 S. W. 2d 525, sustaining such a contention under the Kentucky statutes relating to condemnation. The Georgia statute has been construed to the contrary to the effect that "[a]n appeal by either party entitled both parties to a de novo
2. Appellant complains that a joint money judgment against appellant and Mrs. Michaels was not authorized because she did not enter an appeal from the award of the special master to a jury in the superior court. Assuming, without deciding that Mrs. Michaels was not a party to such appeal and that the verdict could not legally affect her rights to keep the amount she took down on the order of the court, that is a matter about which she makes no complaint in this court as she entered no appeal to this court from the overruling of her motion to modify the judgment (ground 2) and her motion for new trial, both of which raised this very question pertaining to the error of rendering a judgment against her under these circumstances. Therefore, any error as to Mrs. Michaels is not a matter presented to this court for review and is not a matter about which appellants may complain but about which she alone can make complaint. See Lamar v. Lamar, 118 Ga. 684 (1) (45 SE 498).
Should we assume that because Mrs. Michaels did not appeal to the jury in the first instance she became no longer a party to the condemnation case and would, therefore, be precluded from objecting to the judgment against her and from entering an appeal from the denial of her motions objecting thereto (entered and filed in the condemnation case of which she had been a party) then, and in that event, this court would likewise be powerless to reverse the trial judge on her behalf and grant relief to her, even though the judgment as to her be erroneous. Under these circumstances her remedy would be an affidavit of illegality in the event the judgment is sought to be enforced upon her by execution; or by motion to vacate and set aside the judgment as against her.
3. The appellant Smith has not pointed out or presented to this court any reason as to why, or how, or in what manner, Mrs. Michaels being a party to the judgment is injurious or harmful to him, or even an error
Appellant, of course, contends that the rendering of a verdict in a single sum for both pieces of property rather than a separate sum as to each, and the entering of the judgment necessarily following the verdict in this regard, makes it impossible to apportion the amount which is to be reimbursed the condemnor as between the respective pieces of property. We might add it even makes it impossible to determine whether the damage allowed as to tract 1 owned solely by appellant Smith, or tract 2 owned in common by appellant and Mrs: Michaels was reduced or raised, or both reduced, or only one reduced, and if so, which one. This is what creates" the appellant Smith’s dilemma. That his sister is a party to the judgment has nothing to do with this problem. Eliminating her from the judgment would not solve this problem as it would still remain and is the basic problem about which appellant Smith complains. The existence of this problem is a situation about which this court would readily grant a remedy by ordering a new trial; except that to do so would violate a long-established rule of this court and the Supreme Court of this state, which should be applied equally to all appellants. This is the rule that the appellate courts will grant no relief to a party because of an error invited or induced by conduct or contention of the party, or his counsel, as this gives such party no cause for complaint. See Steed v. State, 123 Ga. 569 (2) (51 SE 627); Caesar v. State, 127 Ga. 710 (57 SE 66); Howard v. State, 115 Ga. 244 (41 SE 654); Realty Co. v. Ellis, 4 Ga. App. 402 (1) (61 SE 832). The maxim "consensus tollit errorem” applies in civil as well as criminal cases. Threlkeld v. State, 128 Ga. 660 (58 SE 49).
In Caesar v. State, 127 Ga. 710, supra, it was held: "In the trial of one charged with the offense of murder, the failure of the judge to charge upon the law of voluntary manslaughter will be no reason for reversing the judgment, when the counsel for the accused, in response to a statement by the judge addressed to him, that he did not think it necessary to charge the law of voluntary manslaughter, replied to the judge in such a manner as to indicate that he concurred in this view. A party can not complain of an error which his own conduct
It is obvious that the acquiescence of appellant’s counsel in the charge of the court as to the form and contents of the jury verdict, together with other actions during the trial of the case, but particularly the former, is what has created the dilemma of the appellant. We must refuse, therefore, to grant any relief to him because of the error of which he himself or his counsel is the author. It is also obvious from what we have said above that the appellant cannot complain of the charge as given. The judgment of the trial judge is affirmed.
Judgment affirmed.
Concurring Opinion
concurring specially.
Every error in the charge and in the verdict and judgment were all induced by all counsel and acquiesced in by them. Errors of that type do not authorize an appellate court to grant a new trial.
As to the sister-joint owner of one of the tracts taken, she is, as Judge Stolz suggests, totally unaffected by any judgment for she was not a party to the trial. Therefore, the judgment as to her is unenforceable and void. But since all the errors appealed from were self-induced and acquiesced in by counsel, the parties have no standing to complain and are bound by the judgment.
I am authorized to state that Chief Judge Bell and Judge Deen concur with that which is written herein.
Dissenting Opinion
dissenting.
I must respectfully dissent from Divisions 2 and 3 of the majority opinion. Mrs. Michaels could not have appealed from the judgment below because she was not a party at the trial of the case.
This result is not strange or unusual. It simply recognizes that parties with different interests in a condemnation case may have different opinions as to the advisability of an appeal. The statutes clearly recognize this.
"Where separate and distinct parcels of property are condemned in the same proceeding, the owner or owners of any separate and distinct property may file a separate appeal to a jury in the superior court, as herein provided for.” Code Ann. § 36-615a (Ga. L. 1957, pp. 387, 396).
A review of the record in this case reveals a procedural nightmare. It does not take great imagination to determine the position the condemnees would be taking had the jury increased the special master’s award. Be that as it may, the transcript reveals with unerring certainty that the case was tried and submitted to the jury on an erroneous theory—that Mrs. Michaels was a party. The judgment of the court against her when she was not a party, is patently erroneous and should not stand. I would reverse and remand the case to the trial court for a new trial. The jury would then determine the
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