Feldman v. City of Chicago

• Decision Date: 24 April 1936
• Docket Number: No. 22677.,22677.
• Citation: 363 Ill. 247,2 N.E.2d 102
• Parties: FELDMAN et al. v. CITY OF CHICAGO.
• Court: Illinois Supreme Court

363 Ill. 247

2 N.E.2d 102

FELDMAN et al.

v.CITY OF CHICAGO.

No. 22677.

Supreme Court of Illinois.

April 24, 1936.

Action by Nathan R. Feldman and others against the City of Chicago. The municipal court's judgment for plaintiffs was reversed by the Appellate Court (276 Ill.App. 142), and plaintiffs sought review by the Supreme Court on a certificate of importance.

Judgment of the Appellate Court reversed and judgment of the municipal court affirmed.

WILSON and HERRICK, JJ., dissenting.Appeal from First Branch, Appellate Court, First District, on Error to Municipal Court of Chicago; William E. Helander, Judge.

William Feldman, of Chicago (Howard F. Bishop, William H. Dillon, Eugene H. Dupee, William T. Hapeman, George A. Mason, Augus R. Shannon, Daniel S. Wentworth, and Aaron Soble, all of Chicago, of counsel), for appellants.

Barnet Hodes, Corp. Counsel, William H. Sexton, and Arthur A. Sullivan, all of Chicago (Joseph F. Grossman and Tolman, Chandler & Dickinson, all of Chicago, of counsel), for appellee.

ORR, Justice.

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 rehearings 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 $6,000 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 $2,762 and costs, being interest at 5 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, 352 Ill. 171, 185 N.E. 258, 260. It was there held, after an exhaustive review of prior decisions, that section 3 of the general statute on interest (Smith-Hurd Ann.St. c. 74, § 3) applies to final and unconditional judgments entered against municipalities in condemnation proceedings. Section 3, in part, provides: ‘Judgments recovered before any court or magistrate shall draw interest at the rate of five (5) percentum per annum from the date of the same until satisfile.’ The statute is express and clear. No exception is made therein as to judgments rendered as compensation for lands damaged or taken for public use. Under such circumstances, we held in Epling v. Dickson, 170 Ill. 329,48 N.E. 100§, 1003: ‘No exception is made in the statute where a judgment has been rendered as compensation for lands taken or damaged for public use, and, in the absence of an exception, the statute which controls judgments in other cases must control here. Moreover, it has often been held that a final judgment for the amount found to be due as just compensation will draw interest. City of Chicago v. Palmer, 93 Ill. 125, 126;Cook v. South Park Com'rs, 61 Ill. 115.’

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, 339 Ill. 610, 171 N.E. 737, 741. As was said in Turk v. City of Chicago, supra: ‘The judgment was final and unconditional. It bears no element not found in any quod recuperet judgment entered against a municipality. By that judgment appellant owned the property condemned and all rights pertaining thereto, including the right to take possession. The appellee by that judgment came into an unconditional right to the compensation awarded. What appellant did, after the date of the judgment, concerning possession of the property, was a matter solely within its choosing. There is no authority in law for saying that it could enforce a tenancy on appellee without his agreement thereto, at a rental in the amount of the interest then accruing on the judgment or in any amount.’

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 (Smith-Hurd Ann.St. c. 24, § 698 et seq.), which differs materially from article 9 of the Cities and Villages Act (Smith-Hurd Ann.St. c. 24, § 128 and note, § 129) and also from the Eminent Domain Statute (Smith-Hurd Ann.St. c. 47, § 1 et seq.). The case of City of Chicago v. Barbian, 80 Ill. 482, relied upon by appellees, was brought under article 9 of the Cities and Villages Act of 1872, which has been superseded by the present Local Improvement Act of 1897. No provision existed in article 9 of the Cities and Villages Act similar in any respect to section 32 of the present Local Improvement Act (Smith-Hurd Ann.St. c. 24, § 731 and note 1). In the former act the verdict of the jury was not absolute, but was conditioned upon payment. In the Barbian Case the effect of nonpayment and failure to take possession constituted an abandonment of the proceedings. Obviously this sort of procedure no longer exists, and the Barbian Case is therefore inapplicable as an authority under our present statute. The finality of a judgment in condemnation under our present law was well illustrated in City of Chicago v. McCluer, supra. There a motion was made to dismiss the proceeding because there was no money available for the payment of the property, on the theory that such failure, as in the Barbian Case, constituted an abandonment. In denying this contention, we said: ‘When appellee elected to enter the judgment herein, it thereby became bound and liable to pay the amount of such judgment whether the assessment is collected or not. (Local Improvement Act, § 32). * * * The judgment if final as far as the city is concerned and cannot be set aside after the lapse of ninety days.’ Citing People v. Weaver, 330 Ill. 643, 162 N.E. 205.

Other cases cited by appellee are likewise beside the point. The case of South Park Com'rs v. Dunlevy, 91 Ill. 49, decided in 1878, was a proceeding under the Eminent Domain State-not the Local Improvement Act. There the question arose whether interest should be allowed from the time of the filing of the petition for condemnation. The court there denied the right to interest from the time the petition was filed, saying the defendants had the full use of the property while the case was pending and for that reason should not be allowed interest before the property was actually taken. It is not contended in the present case that appellants were entitled to any interest from the date the petition was filed, but only from the date the judgment became final and unconditional. The case of City of Evanston v. Knox, 241 Ill. 460, 89 N.E. 670, cannot be cited in support of the rule disallowing interest, as that question is not discussed in the Knox Case. However, it was there significantly pointed out that the law had been changed ‘to obviate the evils,’ since the Barbian decision, in that section 53 of article 9 of the Cities and Villages Act had been amended in 1891 (Smith-Hurd Ann.St. c. 24, § 128 note) to provide that unless the condemnor took possession of condemned land within two years from the entry of the judgment the property owner could, on motion, have the proceedings dismissed as to his property. In the same decision section 32 of the Local Improvement Act of 1897 (Smith-Hurd Ann.St. c. 24, § 731 and note) was held to be conditional up to the time the petitioner, after securing final judgment against all the defendants, elects to enter the judgment. In City of Chicago v. Roth, 334 Ill. 132, 165 N.E. 627, 628, and City of Chicago v. Thomasson, 259 Ill. 322, 102 N.E. 748, the owners voluntarily surrendered possession, then filed petitions under the Local Improvement Act to recover the amounts and judgment, plus interest. In both cases this court held that the remedy had been misconceived; that the filing of such petition was not authorized by any provision of the Local Improvement Act, but that the property owner was not limited to that statute and could seek complete relief by instituting separate proceedings in tort. As authority for its conclusion in the Roth Case, the court cited Mecartney v. City of Chicago, 273 Ill. 276, 112 N.E. 675, where possession was voluntarily surrendered by the owner before the compensation was paid, and where it was ‘held that he could maintain an action of trespass on the case against the city for the amount of his judgment and interest.’

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...