(concurring).
The 1966 Court of Appeal judgment contains no award in favor of the Department of Highways against the landowners for the $32,439.00 excess payment.1 The parties concede this. The judgment merely *555decrees that the award to the landowners be reduced “from the sum of $52,232.50 to the sum of $24,000.00.” 188 So.2d 495, 498. The landowners applied for writs, but this Court denied review. See 249 La. 736, 190 So.2d 241. Hence, the Court of Appeal judgment became final.
Based upon the Court of Appeal judgment, an exception of res judicata was filed by the landowners in this proceeding. They contend the issue of excess payment was before the court in the expropriation proceeding. The Court of Appeal rejected such relief, by failing to award judgment in favor of the Department of Highways against the landowners for the excess payment and interest. Since that judgment is now final, they assert res judicata bars the present suit seeking judgment for the overpayment plus interest. The exception of res judicata raises a serious question.
Article 2286, LSA-C.C, provides:
“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”
For res judicata to apply under the article, three identities must appear in the suits: (1) parties, in the same quality; (2) thing demanded; (3) and cause of action. Quinette v. Delhommer, 247 La. 1121, 176 So.2d 399.
Res Judicata is stricti juris and any doubt as to the existence of the three identities must be resolved in favor of plaintiff. Quinette v. Delhommer, supra; Bullis v. Town of Jackson, 203 La. 289, 14 So.2d 1.
The parties are the same in the two suits. I am of the opinion, however, the cause of action and the thing demanded are not the same.
The former suit was an action for expropriation under the quick-taking statute, LSA-R.S. 48:441 et seq. This is a unique proceeding, designed to give the Louisiana Highway Department title to the property sought upon the pre-trial deposit of the estimated value of the property:
LSA-R.S. 48:445 provides:
“Upon the deposit of the amount of the estimate in the registry of the court, for the use and benefit of the persons entitled thereto, the clerk shall issue a receipt showing the amount deposited, the date it was deposited, the style and number of the cause, and the description of the property and property rights as contained in the petition. Upon such deposit, title to the property and property *557rights specified in the petition shall vest in the department and the right just and adequate compensation therefor shall vest in the persons entitled thereto.”
As to the court’s judgment, LSA-R.S. 48:456 provides:
“If the compensation finally awarded exceeds the amount so deposited, the court shall enter judgment against the department and in favor of the persons entitled thereto for the amount of the deficiency.
"If the compensation finally awarded is less than the amount so deposited, the court shall enter judgment in favor of the plaintiff and against the proper parties for the amount of the excess.” (Italics mine).
If the compensation finally awarded is less than the amount “so deposited,” it is mandatory for the court to enter a judgment in favor of the plaintiff expropriator for the excess. The statute recites, “the court shall enter judgment * * *”
If LSA-R.S. 48:456 applies to the excess payment in the present case, the Court of Appeal judgment would bar a second suit to recover the amount. The excess payment would have been a mandatory issue in the first suit. When a judgment is silent as to “any demand which was an issue in the case under the pleadings,” such silence constitutes a rejection of the demand. Succession of Foser, 240 La. 269, 122 So.2d 96.
It seems fairly clear, however, that Section 456 is inapplicable to the payment of the trial court judgment in the present case. By its terms, the section applies only to a final award “less than the amount so deposited.” This language obviously refers to the pre-trial deposit of the estimated value under LSA-R.S. 48:445.
In the present case the trial court rendered judgment in excess of the pre-trial deposit. The Department of Highways was entitled only to a devolutive appeal. See State, Department of Highways v. Holmes, 251 La. 607, 205 So.2d 416. Pending the devolutive appeal, the department paid the judgment by depositing the sum in the registry of the court for the landowners’ withdrawal. Compare State, Department of Highways v. Holmes, supra. The Court of Appeal amended the judgment and reduced the award to the amount of the estimated pre-trial deposit.
LSA-R.S. 48:456 is inapplicable to the payment of such a judgment. Hence, the Court of Appeal had no legal authority in the expropriation suit to render judgment in favor of the Department of Highways for the excessive amount it had paid to satisfy the judgment. This conclusion, of course, strips the exception of res judicata of all merit.
Applicable here are the usual principles governing the recovery of money paid to *559satisfy a judgment later reversed on devolutive appeal. Having paid the executory judgment during the pendency of the appeal, the successful litigant is entitled to recover the sum paid in a separate suit. Bomarito v. Max Barnett Furniture Co., 177 La. 1010, 150 So. 2; Smith v. Phillips, 175 La. 198, 143 So. 47; McWaters v. Smith, 25 La.Ann. 515.
As the majority correctly holds, legal interest runs from the date the opposing litigants received the money. LSA-C.C. Art. 1938; Smith v. Phillips, supra.
In Smith v. Phillips, supra, this Court held, under similar circumstances, that interest runs from date the money is received :
“The lower court, in rendering judgment for plaintiff, allowed him 5 per cent, per annum interest from May 20, 1929, the date this proceeding was filed, instead of from February 23, 1924, the date appellant received the money, and the one from which plaintiff prayed in his petition for interest. Plaintiff, in his answer to the appeal, has prayed that the judgment be amended by awarding him 5 per cent, yearly interest from February 23, 1924, until paid. Interest began to run from the date the money was received, for then, as appellant was not entitled to it, as afterwards developed, it became due.”
For the reasons assigned, I concur in the decree.
. The majority apparently holds to the contrary in the following language: “Defendants’ argument that the Court of Appeal decree in the expropriation proceeding was not an award or judgment against them for the amount of the excess is not seriously considered by us, because the decree obviously intended to award to the *555plaintiff the $32,439.00 excess deposit.” This holding conflicts with the award of another judgment for the same amount in this suit.