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Adkinsv.Cobb County

CourtSupreme Court of Georgia
Docket No.S12A0848
DecidedSeptember 10, 2012
Reporter291 Ga. 521; 731 S.E.2d 665; 2012 Fulton County D. Rep. 2744; 2012 WL 3888431; 2012 Ga. LEXIS 686
JudgesSupreme Court of Georgia
Tags
CivilProperty LawGovernment LawCondemnationStatutory InterpretationConstitutional LawDue ProcessCivil ProcedureInterlocutory AppealReversalRemand
Case Summary

Cobb County filed a declaration of taking to acquire Russell Adkins and James Whitfield’s property for a road project. The owners acknowledged service, timely filed a motion to vacate the taking, and obtained a rule nisi, but the trial court did not hold the hearing until more than 60 days after the declaration. The court dismissed the motion as barred by OCGA § 32-3-11 (c), reasoning that the owners had failed to obtain a timely hearing. The Georgia Supreme Court reversed. It held that the statute’s 60-day hearing language is directory, not mandatory, because the statute contains no words withdrawing the trial court’s authority after the deadline or penalizing noncompliance. The court also held that the trial court—not the condemnee—must issue the rule nisi and schedule the hearing. Treating the deadline as directory preserved the owners’ opportunity to challenge the taking without prejudicing the County, which still received timely notice through the motion filed within 30 days of service. The case was remanded for a hearing on the merits.

Opinion

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