2 N.E.2d 102 | Ill. | 1936
Lead Opinion
A certificate of importance brings here for review a judgment entered by the Appellate Court for the First District reversing the municipal court of Chicago in an action in assumpsit to recover interest on a condemnation judgment. The question presented is "whether suit can be maintained for interest claimed on a condemnation judgment where the face amount of the judgment has been paid in full and accepted by the plaintiffs." As a result of re-hearings allowed and the filing of more adequate briefs on both sides, the court, prompted in part by the public importance of the question involved, has given unusual consideration to the various points raised.
The facts are comparatively simple. On February 23, 1925, in proceedings under the Local Improvement act, appellants were awarded $39,000 as compensation for a strip of land required by the city of Chicago in the widening of Clinton street. At the same time $6000 was assessed against them for benefits, leaving a net amount of $33,000 due them. This $33,000 judgment was paid by the city on July 22, 1926 — practically one year and five months after the judgment. At the time of payment appellants gave a deed conveying the land to the city but also demanded payment of interest, and accepted the amount paid under protest. The amount demanded in and allowed by the municipal court was $2762 and costs, being interest at five per cent per annum on $33,000 from February 23, 1925, until July 22, 1926.
The identical question here present was settled by this court in the case of Turk v. City of Chicago,
The claim here was for a sum certain, depending only upon computation. Demand for interest was made at the time the judgment was paid. The amount of compensation was fixed by the judgment and the rate of interest was fixed by the Interest act. No dispute could arise between the city and the property owner as to the amount to be paid, after the judgment became final and unconditional. The land was then presumed to have been taken for public use. Thenceforth the city could not escape payment of the judgment, regardless of when it took actual possession of the property condemned. (City of Chicago
v. McCluer,
A confusion has doubtless arisen in the application of the different statutes in past decisions. This proceeding is based entirely upon the Local Improvement act of 1897 as amended, which differs materially from article 9 of the Cities and Villages act and also from the Eminent Domain statute. The case of City of Chicago v. Barbian,
Other cases cited by appellee are likewise beside the point. The case of South Park Comrs. v. Dunlevy,
It is contended that a final condemnation judgment was not known to the law at the time the interest statute was passed, and that therefore the interest statute did not apply to condemnation judgments. This argument is unsound, because as early as 1871 this court specifically held that under the act of 1852 a condemnation judgment became final upon its rendition even though payment was sometimes delayed, and that interest accrued from the date of the judgment and not from the date of possession. (Cook v. South Park Comrs.
The allowance of interest on condemnation judgments is thus seen to be no novelty in this State but is well sustained by authority of our own and other State courts for many years. Our own decisions have not been entirely harmonious, due, partially, no doubt, to some confusion arising from various legislative enactments upon the related subject matter in acts pertaining to cities and villages, eminent domain and local improvements. But the basis for the rule is sound, in that it originates from the constitutional right to just compensation for private property taken for public use. Where there is delay in the payment of a condemnation judgment it cannot reasonably be said that its payment at some later date will amount to just compensation, because the owner in such cases is deprived of the full and beneficial use and enjoyment of his property without legal process or compensation. (Forster v. Scott,
The decision of the Appellate Court that the city was not liable for interest in this case was based largely upon an ingenious argument of counsel, repeated here, that when the owners accepted payment of the principal of the judgment they abandoned whatever claim they might have had to interest. This argument, however, finds no support either in the admitted facts before us, in the provisions of the statutes or in the decisions of this court. It ignores the essential fact that here the interest is purely statutory, and arises neither from an agreement, express or implied, nor by way of damages or penalty for delay in payment of the principal. None of the necessary elements of accord and satisfaction exist here, as the claim was for a sum certain, the amount was not in dispute, and there was no offer to pay or accept less than the judgment in full settlement. On the contrary, it is conceded that when the city paid the judgment the owners then demanded interest and accepted *255 under protest the payment of the judgment without interest. Under these circumstances there was no waiver of the interest.
The judgment of the Appellate Court is reversed and the judgment of the municipal court of Chicago is affirmed.
Judgment of Appellate Court reversed. Judgment of municipal court affirmed.
Dissenting Opinion
I am unable to concur in the majority opinion. It has been an unbroken rule of law in this State that interest will not run against a city in a proceeding under the Local Improvement act until after possession taken, and in no event after compensation has been paid. Since no vested right can be acquired in the property without the owner's consent until compensation is paid, there can be no vested right in the compensation until it is paid. An early case in this court which undertook to define the nature and character of the judgment in a condemnation proceeding brought under the Local Improvement act is that of City of Chicago v. Barbian,
The case of Caldwell v. Highway Comrs.
There have been tort actions where damages have been awarded because of the negligence of the city to take possession under its judgment or to take steps indicating a refusal to be bound by the judgment. Illustrative of this principle is the case ofMecartney v. City of Chicago,
In my opinion the Interest act is not applicable to a judgment in a condemnation proceeding brought under the Local Improvement act. In the first place, at the common law there was no right of interest unless especially provided for by contract. Interest is a creature of the statute, alone. (City of Pekin v. Reynolds,
The Local Improvement act provides a code of condemnation of private property in the making of public improvements. It regulates the entire proceeding without resort to any other act, and there is no provision in it expressly providing for interest on the final judgment. (Rieker v. City of Danville,
Mr. JUSTICE HERRICK concurs in this dissent.