Whigham v. City of Atlanta

The city complied with the specific service of process requirements set forth in O.C.G.A. § 32-3-1 et seq. by personally serving the condemnee with the applicable petition, declaration, court order and citation.

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This is an appeal in an in rem forfeiture action wherein the City of Atlanta “City” condemned 3.4 acres belonging to Nellie B. Whigham in order to facilitate the building of a fifth runway at Hartsfield International Airport. Ms. Whigham’s sole claim of error is that the trial court erred in denying her motion to dismiss the City’s action based on insufficient service of process, which claim is premised on the fact Ms. Whigham was never served with a “summons” as required by the Civil Practice Act, OCGA § 9-11-4 a. We find no error in the trial court’s ruling and affirm. 1. The condemnation of property in order to build a road or, as here, an airport runway is a special statutory proceeding governed by OCGA § 32-3-1 et seq, “Acquisition Of Property For Transportation Purposes” “Statute”. Generally, the Civil Practice Act “Act” will apply to in rem forfeiture actions under the Statute only to the extent the Act does not conflict with the specific practice and procedures expressly prescribed by the Statute.1

As applied to Ms. Whigham’s claim of error, the Statute provides the specific procedure for “service of process” in a condemnation for transportation action: Upon the filing of the petition and declaration, where the owner or owners of the property sought to be condemned or any person having a claim against or interest in the same are residents of this state, the petition and declaration shall be served upon such persons personally.2 It is undisputed that, on June 3, 2002, Ms. Whigham was personally served with the petition, declaration, court order, and citation from the Clerk of the Clayton County Superior Court. The clerk’s citation informed Ms. Whigham of her right of appeal “not later than thirty 30 days following the date of service as provided for in OCGA § 32-3-9 through 32-3-20.” This personal service satisfied the specific procedure authorized under the Statute and was sufficient.

Whigham v. City of Atlanta

The city complied with the specific service of process requirements set forth in O.C.G.A. § 32-3-1 et seq. by personally serving the condemnee with the applicable petition, declaration, court order and citation.

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