
    37833.
    TILLMAN v. STATE HIGHWAY DEPARTMENT.
   Felton, Chief Judge.

“Where a proceeding in rem is brought to condemn property for a public use under the provisions of Chapter 36-11 of the Code as amended by the act of 1938, tender of the amount awarded by the assessors to the apparent or ostensible owner of such property is not a condition precedent to the condemnor’s right to pay the award into the .registry of the court and enter an appeal to a jury.” State Highway Dept. v. Hendrix, 215 Ga. 821 (113 S. E. 2d 761); Tillman v. State Highway Dept., 216 Ga. 70 (114 S. E. 2d 537.)

Decided June 6, 1960

Rehearing denied June 21, 1960.

Tillman & Brice, B. Lamar Tillman, for plaintiff in error.

Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Assistant Attomeys-General, W. J. Gibbons, contra.

In this case the motion by the condemnee to dismiss the State Highway Department’s appeal on the sole ground that the amount of the assessor’s award was not first paid or tendered to the condemnee was correctly overruled. The motion to dismiss the appeal did not include the ground that the amount of the award was not properly paid into the registry of the court. The second case cited above is the answer of the Supreme Court to a certified question by this court in this case.

Judgment affirmed.

Nichols and Bell, JJ., concur.  