dissenting:
I respectfully dissent. Defendant owned a 40.5 acre parcel of land in Woodridge, Illinois. Plaintiff filed an eminent domain action to acquire 11.4 acres of that parcel. Defendant filed a cross-petition for damage to the remainder of the parcel.
On February 3, 1989, the jury returned a verdict awarding $805,000 to the defendant in just compensation for the land taken. The jury also returned a verdict awarding nothing on defendant’s cross-petition for damage to the remainder.
On February 10, 1989, a final judgment was entered on the jury verdicts. On the same date an order was entered requiring defendant to refund the excess preliminary compensation by April 14, 1989. Prior to April 14, 1989, defendant commenced to perfect its appeal.
On June 29, 1989, while the appeal was before the appellate court, plaintiff asked the trial court to enter judgment against the defendant for the $359,000 excess which the court previously ordered the defendant to pay on or before April 14, 1989. The trial court denied plaintiff’s request for judgment as premature due to the pendency of the appeal.
The plaintiff did not appeal from this adverse ruling. It could have consolidated this issue with the judgment on plaintiff’s petition and defendant’s cross-petition. This conscious and deliberate act of the plaintiff regarding its June 29, 1989, motion for judgment on the excess constituted a waiver of the issue.
On March 16, 1990, the appellate court affirmed the judgment of the trial court awarding $805,000 as just compensation for the part taken and no damages on defendant’s cross-petition for damage to the remainder. Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. (1990), 196 Ill. App. 3d 5.
On October 3, 1990, this court denied defendant’s petition for leave to appeal. The mandate of the appellate court was received by the trial court on November 26, 1990. This concluded the eminent domain case.
It is significant to note that this case is a supplemental proceeding to enforce the January 9, 1991, judgment of the circuit court of Du Page County against the defendant in the sum of $359,000 plus interest at 9% from April 14, 1989. The defendant deposited $359,000 with the clerk of the circuit court on February 12, 1991. This satisfied the principal portion of the judgment. This appeal challenges the propriety of the interest portion of the January 9,1991, judgment.
The majority of this court takes the appellate court majority to task for not examining the propriety of the trial court’s order denying plaintiff’s June 29, 1989, motion for judgment as premature due to the pendency of the appeal.
As previously stated the plaintiff did not appeal from that order. The first appeal was disposed without deciding this issue because the plaintiff did not seek to have it reviewed. This is a classic case of waiver. The issue has been properly interred, by plaintiff’s own choice, and this court has no right or obligation to resurrect it.
Once again, on appeal in this supplemental proceeding, the appellate court correctly stated: “The propriety of the trial court’s denial of plaintiff’s motion for refund as premature during the pendency of the defendant’s first appeal has not been raised or argued in this appeal; therefore, this issue is waived ***.” 225 Ill. App. 3d at 567.
The appellate court majority properly construes the unambiguous language of section 7 — 109 to effectuate the clear legislative intent. No judgment was entered in this case until January 9, 1991. The principal amount was paid on February 12, 1991. Accordingly, interest may be awarded on the judgment from January 9, 1991, until February 12,1991.
I would affirm the appellate court.