Tender of the amount of the assessor's (special master's) award to the condemnee by the condemnor in a condemnation proceeding is not a condition precedent to the payment of such amount into the registry of the court so that an appeal by the condemnor to a jury will lie.

(a) The delivery of a check, in the amount of such award, to the clerk of the superior court is not payment of such amount into the registry of the court where sufficient funds to cover such check are not on deposit at the bank on which such check is drawn during the 10-day period when an appeal may be filed.

In response to a certified question, propounded by this court, the Supreme Court on May 5, 1960, instructed this court that tender to the condemnee of the amount of the assessor's award is not a condition precedent to the condemnor's right to pay the amount of the award into the registry of the court and enter an appeal to the jury. See State Highway Dept. v. Farmers Gin Co., 216 Ga. 70 (114 S. E. 2d 537). If such certified question had been answered in the affirmative instead of the negative it would have disposed of the case. However, since it was not so answered another question is presented to this court, to wit: Does the delivery of a check to the clerk of the superior court constitute payment into the registry of the court so as to authorize an appeal from the award of the assessors (or special master), in a condemnation case where there are insufficient funds on deposit to cover such check during the entire 10-day period when an appeal could be entered by the condemnor?

Code 20-1004 provides in part: "Bank checks and promissory notes are not payment until themselves paid." Of course where there is an agreement that the check will be received as payment an exception to the above rule exists. See Holland v. Mutual Fertilizer Co., 8 Ga. App. 714 (2) (70 S. E. 151). No such agreement appears in the present case. While generally where a check is given for a debt and the check is paid on presentment to the bank on which it is drawn, payment may be deemed to have been made at the time the check was delivered to the creditor (see 70 C. J. S. 234, 235, Payment, 24), yet where the check is not paid on presentment there is no payment, and the creditor may sue on the debt or on the check. 70 C. J. S. 235, supra.

The check delivered to the court in the present case was indorsed and delivered to the condemnee and by the condemnee to the bank on which it was drawn where it was dishonored until after the time for appeal had expired. The clerk of the superior court could not agree to accept the check as payment (Collins v. Burkhalter, 144 Ga. 695 (3), 87 S. E. 888), and since the condemnee was entitled to payment regardless of whether the condemnor appealed, dismissed the appeal, or attempted to dismiss the condemnation proceeding after the award of the special master was filed (Towler v. State Highway Dept., 100 Ga. App. 374, 111 S. E. 2d 154), it did not adversely affect its motion to dismiss tlie appeal by retaining the check and having it paid when sufficient funds were on deposit after the time for the condemnor's appeal had expired. Here, as in the case of Woodside v. City of Atlanta, 214 Ga. 75, supra, the condemnor failed to pay the amount of the award into the registry of the court within the time permitted by law and the judgment of the superior court dismissing such appeal was not error.

FELTON, Chief Judge, concurring specially.

In the case of State Highway Dept. v. Taylor, and State Highway Dept. v. Yeager, 216 Ga. 90, the Supreme Court held without discussion as follows: "Where the amount of the assessors' award is paid into the registry of the court, and thereafter paid to the condemnee, the condemnee is not precluded, by receiving the money, from attacking the validity of the appeal or moving that it be dismissed." In this case I feel that I am bound by this ruling as I think it covers the situation in this case, as well as those of the cases in which the Supreme Court answered questions certified by this court. If it were not for the foregoing decisions by the Supreme Court I would dissent in this case on the same ground on which I dissented in the case of Hendrix v. State Highway Dept., 100 Ga. App. 417 (111 S. E. 2d 635) in division 3 of said dissent beginning on page 421.