dissenting: The learned trial judge found at the time of the payment by defendant to plaintiff of the amount of the judgment plaintiff made no protest. The last expression of our Supreme Court on the nature of interest on a condemnation judgment, etc., is found in Blakeslee’s Storage Warehouses, Inc. v. City of Chicago, 369 Ill. 480. In that case suit was brought to recover interest on the amount of the judgment awarded in a condemnation proceeding. The suit was not brought until more than five years after the judgment was paid and the Supreme Court held the five-year Statute of Limitations barred the action. In that case the Supreme Court considered the nature of a judgment entered in a condemnation suit and section 3 of our Interest Act [Ill. Rev. Stat. 1937, ch. 74, par. 3; Jones Ill. Stats. Ann. 67.03], which provides that all judgments shall draw interest at the rate of 5 per cent from the date of entry until satisfied, and held that such judgments draw interest under that statute; and continuing said (p. 483): “On the other hand, the right to interest apart from contract, such an interest on a judgment, does not emanate from the controversy, or from the judgment, or from anything of a judicial nature. At common law, interest could be recovered in no case except where there was an express agreement therefor. Because of losses occasioned by delay in the payment of final judgments the legislature provided a remedy for such logses by way of interest thereon as fair compensation for such delays. The remedy is found in section 3 of the Interest act. The recovery of interest in this State, not contracted for, finds its only authority in the statute. It is purely statutory. Blaine v. City of Chicago, supra; Feldman v. City of Chicago, 363 Ill. 247; Turk v. City of Chicago, 352 id. 171.” The court then discusses section 3 of our Interest Act and refers to opinions of the Supreme Court; and continuing said (p. 484): “It is obvious that at the time the judgment was entered there was no interest due. Hence, the subsequently accruing interest, recoverable by virtue of the statute, could not be a part of the judgment when it was entered. . . . The conclusion is inescapable that interest on a judgment is not a part of it. ’ ’
The holding in the Blakeslee case followed what was said by our Supreme Court in People ex rel. Wieboldt Stores, Inc. v. City of Chicago, 368 Ill. 421, where the court approved the case of Whitman v. City of Providence, 44 R. I. 33, saying (p. 423): “It was there held that title to the land passed to the City when the final judgment was entered, and that interest was given, not as a part of the damages for the taking, but to indemnify the property owner for the detention of money rightfully due him.”
In the Wieboldt case the court held that the interest statute applied to condemnation judgments and that interest was to be paid the property owner so that he would receive fair compensation for delay in payment of the judgment.
In the instant case, the interest being no part of the judgment (following the rule announced by the Supreme Court in the Blakeslee case, that its allowance is authorized by section 3 of the Interest Act to compensate the property owner for the delay in payment of the condemnation judgment) and plaintiff having accepted without protest the amount of the judgment, his right to interest was gone. Stewart v. Barnes, 153 U. S. 456, 38 L. Ed. 781, 14 Sup. Ct. 849; Davis v. Harrington, 160 Mass. 278; Bassick Gold Mine Co. v. Beardsley, 49 Col. 275; Pacific R. R. Co. v. United States, 158 U. S. 118, 39 L. Ed. 918, 15 Sup. Ct. 766; Cutter v. Mayor of New York, 92 N. Y. 166; King v. Phillips, 95 N. C. 245.
The rule announced in the above cases is well stated by the highest court of Massachusetts in the Davis case (160 Mass. 278) where it is said: “But interest which is allowed by way of damages and for the neglect to pay promptly is a mere incident of the debt, which falls when the debt itself is extinguished. It is well settled that in such a case, if the debt is paid, there can be no recovery afterward for the interest which might have been collected. ’ ’