APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, JR., Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Plaintiff, Lake County Forest Preserve District (hereinafter District), instituted a condemnation proceeding concerning property belonging to the defendant, Vernon Hills Development Corporation (hereinafter Corporation). On December 1, 1978, the jury returned a verdict finding that just compensation should be paid to the defendant for the taking of the subject property in the amount of $450,000. On December 6, 1978, the trial court entered judgment on the verdict, and further provided that the District was to pay the above-mentioned sum to the Corporation within 90 days, plus the Corporation's "costs of $13, and interest pursuant to statute until the date of deposit with the Lake County Treasurer * * *." The District was to be vested with the fee simple title to the subject property upon filing a receipt for the deposit with the clerk of the court. The Corporation filed a motion for a new trial. That motion was apparently denied on January 26, 1979. *fn1 On February 13, 1979, the Corporation filed its notice of appeal.
In its opinion filed June 17, 1980, this court affirmed the judgment entered by the trial court on the jury verdict in the amount of $450,000. (Lake County Forest Preserve District v. Vernon Hills Development Corp. (1980), 85 Ill. App.3d 241.) The mandate was issued on August 29, 1980.
On July 30, 1980, the District deposited with the Lake County Treasurer the sum of $455,560.75. This sum represented the amount of the original judgment plus interest from the date of the verdict (December 1, 1978) to the date of the filing of the notice of appeal (February 13, 1979), plus the Corporation's costs of $13. On September 3, 1980, the Corporation filed an "Application for Withdrawal of Condemnation Award and Motion for an Order Directing Plaintiff to Pay Additional Interest." The Corporation stated in its motion that there was a deficiency in interest on the judgment, from the date of the judgment (December 1, 1978) to the date the deposit was made with the Lake County Treasurer (July 30, 1980), in the amount of $38,822.81. In its motion, the Corporation further sought the entry of an order requiring the District to pay an additional $73.97 for each day after July 30, 1980, that the judgment with correct interest was not deposited with the Lake County treasurer.
On September 10, 1980, the trial court entered an order allowing the Corporation's application to withdraw the sum then on deposit with the Lake County treasurer ($455,560.75). The order further provided that receipt of the funds by the Corporation would not constitute satisfaction of the judgment and could be accepted without prejudice to any claims for interest. Further, the Corporation's request for additional interest accruing during the pendency of the former appeal in this case was allowed. Therefore, on September 12, 1980, the District deposited with the Lake County Treasurer the sum of $39,426.01 as interest due during the pendency of the former appeal in the case during the period February 13, 1979, to July 30, 1980. On October 1, 1980, the Corporation filed a motion for additional interest for the period from July 30, 1980, to September 10, 1980, when the additional deposit representing interest during the initial appeal was ordered to be made by the District. The Corporation's motion was denied on October 1, 1980. The trial court also ordered that the Corporation could withdraw the $39,426.01 deposited with the Lake County treasurer without any prejudice to any claim by it for interest or income subsequent to July 30, 1980. On October 9, 1980, the District filed its notice of appeal from the September 10, 1980, order of the trial court requiring it to pay interest on the award during the pendency of the appeal. The Corporation filed its notice of cross-appeal on October 30, 1980.
We initially consider the contention of the Corporation that the District has waived the interest issue because it did not appeal from the original judgment order. The District asserts that no waiver has occurred because the original judgment order of the trial court which was the subject of the first appeal in this case made no provision for interest throughout the pendency of the appeal by the Corporation.
It is generally the rule that no question which was raised or could have been raised in a prior appeal on the merits can be urged on subsequent appeal, and that those issues not raised can be considered waived. (Kazubowski v. Kazubowski (1970), 45 Ill.2d 405, 413, cert. denied (1970), 400 U.S. 926, 27 L.Ed.2d 186, 91 S.Ct. 188.) The judgment entered on the verdict provided in pertinent part:
"Upon payment by plaintiff within ninety (90) days to the Treasurer of Lake County of the sum of FOUR HUNDRED FIFTY THOUSAND AND NO/100 ($450,000.00) DOLLARS, plus defendants' costs of $13.00, and interest pursuant to statute until the date of deposit with the Lake County Treasurer, and upon the filing by plaintiff with the Clerk of this Court of the receipt of the County Treasurer for the deposit of such sum, without further order of this Court, the plaintiff shall thereupon be vested with the fee simple title to the following described real estate * * *."
It appears that this provision of the judgment contemplated payment or deposit within 90 days of the date of judgment, and that the reference to interest was made with respect to this period only. This conclusion is supported by the fact that it was not until September 10, 1980, following a motion by the Corporation, that the District was ordered to pay additional interest to the Corporation representing the interest which accrued during the pendency of the first appeal, and the District filed a timely appeal from that order. Therefore, we do not agree that the District waived the issue by failing to raise it in the former appeal.
The District contends on appeal that the Corporation is not entitled to interest for the period of the pendency of its unsuccessful appeal. The Corporation asserts that in the absence of an abandonment by the condemning body, a landowner is entitled to interest on the amount of a condemnation award from the date of the verdict until satisfied or until the date of full tender of the judgment plus costs and interest to the date of tender. The Corporation further asserts that this right to interest is not suspended during the pendency of an appeal from the award by the landowner.
Section 3 of the Interest Act (Ill. Rev. Stat., 1978 Supp., ch. 74, par. 3) provided:
"Judgments recovered before any court shall draw interest at the rate of 8% per annum from the date of the judgment until satisfied or 6% per annum when the judgment debtor is a unit of local government, as defined in Section 1 of Article VII of the Constitution, a school district, a community college district, or any other governmental entity. When judgment is entered upon any award, report or verdict, interest shall be computed at the above rate, from the time when made or rendered to the time of rendering judgment upon the same, and made a part of the judgment. The judgment debtor may by tender of payment of judgment, costs and interest accrued to date of tender, stop the further accrual of interest on such judgment notwithstanding the prosecution of appeal, or other steps to reverse, vacate or modify the judgment."
In Department of Conservation v. Jones (1979), 75 Ill.2d 557, the Illinois Supreme Court held the Interest Act (Ill. Rev. Stat. 1977, ch. 74, par. 1 et seq.) is applicable to eminent domain proceedings and has been so applicable since the 1897 case of Epling v. Dickson (1897), 170 Ill. 329, was decided. The Jones court further found that by virtue of section 3 of the Interest Act, interest is to accrue on a condemnation award from the date of the verdict, nor from the date that the condemnor actually takes possession of the property. Contra, Department of Transportation v. Keller (1978), 63 Ill. App.3d 237.
In support of its contention that interest did not accrue during the pendency of the appeal by the Corporation, the District relies heavily on two cases, City of Chicago v. Schorsch Realty Co. (1972), 6 Ill. App.3d 1074, and County of Cook v. Malysa (1968), 39 Ill.2d 376. In Schorsch, the court held that the time allowed in the judgment order for payment of a condemnation award is stayed by an appeal and does not commence to run until the issuance of the mandate. The Schorsch court found that eminent domain proceedings are sui generis because a judgment in eminent domain proceedings does not impose a liability on the condemnor; rather, it merely establishes a value that the condemnor must pay in order to acquire title. (Schorsch, at 1078.) The holding in Schorsch that the judgment is stayed pending appeal, however, was based on the authority of City of Winchester v. Ring (1925), 315 Ill. 358, which decision predated by 30 years the 1955 amendment to the Interest Act which prescribes what a judgment debtor must do in order to stop the accrual of interest. In Malysa, the Illinois Supreme Court held that where a condemnation judgment is paid to the property owners, the payment acts as a waiver of any error in the proceedings and the right to appeal by the condemnor. The county there relied on Pinkstaff v. Pennsylvania R.R. Co. (1964), 31 Ill.2d 518, and Richeson v. Ryan (1852), 14 Ill. 74, in support of its argument that, as in other civil cases, the payment of a condemnation award does not waive the right to appeal. ...