Cook County v. Malysa

• Decision Date: 28 March 1968
• Docket Number: No. 40692,40692
• Parties: , 40 A.L.R.3d 197 The COUNTY OF COOK, Appellant, v. Philip G. MALYSA, Appellee.
• Court: Illinois Supreme Court

Page 598

235 N.E.2d 598

39 Ill.2d 376, 40 A.L.R.3d 197

The COUNTY OF COOK, Appellant, v. Philip G. MALYSA, Appellee.

No. 40692.

Supreme Court of Illinois.

March 28, 1968.

John J. Stamos, State's Atty. of Cook County, Chicago (Edward J. Hladis, Chief of the Civil Division, and Ronald Butler, Asst. State's Atty., of counsel), for appellant.

Foran & Wiss, Chicago (Thomas A. Foran and Robert E. Wiss, Chicago, of counsel), for appellee.

SOLFISBURG, Chief Justice.

This appeal involves the propriety of a condemnor's appeal from an ordinary condemnation judgment after it has paid the award and taken possession of the property. The County of Cook instituted eminent domain proceedings on March 4, 1966, to acquire land required for the construction of the Dan Ryan Expressway in Chicago. A jury awarded the respondents $167,000 for the parcel of land taken and $31,000 for damages to the remainder. Judgment was entered on the verdict and the County's subsequent motion for a new trial was denied. After the payment of the award the County appealed to the appellate court, and the appeal was dismissed on motion of respondents. We granted leave to appeal because of the important procedural questions involved.

The judgment order which vested fee simple title in the County upon payment of the award was entered on September 27, 1966. After this order had been entered, the County filed its motion for a new trial. Subsequent to the filing of this motion, but prior to a ruling on it, the award contained in the judgment order was submitted by the County to the Board of County Commissioners for approval. The award was approved by the board and on November 27, 1966, the full amount of the award plus interest from the date of judgment was deposited with the Cook County treasurer. On December 2, 1966, the property owners were notified that the award could be withdrawn from the treasurer's office. On December 14, 1966, prior to making application for withdrawal of the award, the respondents filed a motion to dismiss the petitioner's post-trial motion for a new trial, asserting that the deposit of the award by the petitioner with the treasurer's office terminated the litigation and consequently precluded the County from taking any steps to overturn the award. After hearing arguments by both sides the trial court, on January 10, 1967, denied the respondents' motion to dismiss the post-trial motion but went on to also deny the post-trial motion itself. The respondents thereafter made application for and received the award, together with interest, which was on deposit with the treasurer's office. No objection to this application was made at any time by the County.

On February 7, 1967, some three weeks after the property owners had received the award, and the County had entered into possession of the property pursuant to the judgment order, the petitioner filed its notice of appeal and appealed to the appellate court. The respondents thereafter filed a motion to dismiss the appeal, which was granted on March 30, 1967, and the appeal was dismissed. Ill.App.Ct. No. 52057.

The property owners argue that by the payment of the award and the vesting of title the County has waived the right to appeal. The County, however, insists that it had the right as in other civil cases to pay the award without prejudice to its right to appeal.

It has long been held that 'The condemnation of private property for public use under the eminent domain act is a special, statutory and summary proceeding * * * regulated entirely by the statute.' (Sweeney v. Chicago Telephone Co., 212 Ill. 475, 72 N.E. 677.) Therefore, any rights which the parties may have in a condemnation suit are governed by the provisions of the statute. Village of Baylis v. Orr, 291 Ill. 201, 125 N.E. 712.

Sections 12 and 13 of the Eminent Domain Act (Ill.Rev.Stat.1965, chap. 47, pars. 12, 13) govern appeal from condemnation awards and provide in part as follows:

'12. In all cases, appeals may be taken as in other civil cases * * *.

'13. In cases in which compensation shall be ascertained as aforesaid, if the party in whose favor the same is ascertained shall appeal such proceeding, the petitioner shall, notwithstanding, have the right to enter upon the use of the property upon entering into bond, with sufficient surety, payable to the party interested in such compensation, conditioned for the payment of such compensation as may be finally adjudged in the case, and in case of appeal by petitioner, petitioner shall enter into like bond with approved surety. Said bonds shall be approved by the judge before whom such proceeding shall be had, and executed and filed within such time as shall be fixed by said judge; Provided, however, that when the petitioner is the State of Illinois no bond shall be required.'

The County insists that since 'appeals may be taken as in other civil cases,' the payment of the award does not waive the right to appeal, relying on Pinkstaff v. Pennsylvania Railroad Co., 31 Ill.2d 518, 202 N.E.2d 512, and Richeson v. Ryan, 14 Ill. 74. These cases establish the right of an ordinary judgment debtor to pay a judgment without waiving his right to appeal. However, their rationale is that if the judgment had been collected by execution the payment would be compulsory and would not preclude the right to appeal, and the payment after judgment and before execution 'must equally be considered as made under legal compulsion.' Pinkstaff v. Pennsylvania Railroad Co., 31 Ill.2d 518, 523, 202 N.E.2d 512, 515.

An entirely different situation is presented by a...