delivered the opinion of the court.
The plaintiffs, Charles Takecare and Cleophus Metcalfe, brought this action against defendants, Julius Loeser and Alfred Loeser, to recover damagеs arising out of an automobile accident in which Takecare was driver of one automobile and Metcalfe was his passenger. Alfred Loeser died prior to trial, and the suit proceeded against the surviving defendant, the driver of the other automobile. All parties stipulated to a trial by eleven jurors. After trial, the jury returned a verdict in favor of Cleophus Metcalfe against the defendant, and awarded damages in the sum of $12,000. The verdict further found the issues in favor of the defendant and against the plaintiff Charles Takecare.
The cause was submitted to the jury in the early evening on May 20. By agreement the parties waived the polling of the jury and the verdict was received by the judge at 11:00 p. m. The judge then discharged the jury. On the following morning, over objection of plaintiff, the trial court entered a judgment order which stated that after counsel and several of the jurors had left the courtroom, the court was informed by the foreman and fivе other jurors that it was their intention to return a verdict finding in favor of defendant and against both plaintiffs. The order further stated that the court was further informed that the jury also intended to find in favor of plaintiff Metcalfe against plaintiff Takecare. The court thereupon entered judgment in favor of the defendant against both plaintiffs, reciting that this was in accordance with the real intention of the jury.
Plaintiff Metcalfe alone appeals, contending that the judgment ordеr entered contrary to the verdict was error and requesting that this court reverse the order and enter judgment based upon the jury’s verdict.
Before considеring that issue, we first must resolve defendant’s contention that plaintiff cannot raise this issue on appeal because he failed to file a post-trial motion in the trial court. Defendant relies on section 68(1) (2) of the Civil Practice Act (Ill Rev Stats 1967, c 110, § 68.1(2)) which states in part: “Relief desired after trial in jury cases . . . must be sought in а single post-trial motion.” Under this section, it is generally true that in jury trials relief not sought in a post-trial motion cannot be urged as error on review. City Nat. Bank & Trust Co. of Rockford v. Almond, 42 Ill App2d 314,
“We see nothing in the statute to indicate a legislative intent that a post-trial motion be filed after a directed verdict. In fact, the contrary is indicated since no such motion is rеquired in non-jury cases (Section 68.3) or cases in which a jury has failed to reach a verdict (Section 68.1 (5))
See also Larson v. Harris, 77 Ill App2d 430,
The reasoning in the above cases should apрly even more cogently in the instant situation. On the morning after verdict, over objection of plaintiff, the trial court entered judgment contrary to the verdict whiсh had been rendered. We conclude that it would be illogical to require the plaintiff to appear again before the same judge prior to sеeking a review in this court. We therefore find that the plaintiff was not required to file a post-trial motion in order to preserve his appeal.
We next рroceed to a consideration of plaintiff’s contention that the action of the trial judge in entering judgment contrary to the jury verdict was erroneous. The defendant concedes that the verdict was proper on its face, but argues that the trial court, having determined the true intention of the jury, was compelled to enter judgment on that intention.
Jury verdicts generally cannot be impeached even by affidavit. Smith v. Illinois Valley Ice Cream Co., 20 Ill App2d 312,
In Loucks v. Pierce, 341 Ill App 253,
“If the trial court based the allowance of the new trial upon his own extrajudicial investigation, it must be held error. The rights of litigants in a court of record cannot be left to the mercy of private remarks in the judge’s ear.”
In People v. Rivers, 410 Ill 410,
“However innocently any private investigation may have been made, for whatever purpose, and regardless of its results, the defendants’ constitutional right to have everything considered against them produced in open court has been violated.”
In the instant case, the judgment order itself reveals that the court entered judgment for defendant contrary to the verdict because of a conversation he had with jurors after the verdict had been rendеred and after the jury had been discharged. This conversation resulting as it did in the entry of the judgment amounted to a private extrajudicial investigation and clearly was erroneous.
Cases cited by defendant, Law v. Sanitary Dist. of Chicago, 197 Ill 523,
One question remains; whether after remandment of the cause with directions to the trial court to enter judgment on the verdict, defendant may thereafter, for the first time, file a post-trial motion in the trial court.
This issue has been decided recently in Scoggins v. Village of Hartford, 104 Ill App2d 403,
“Section 68.1(3) of the Civil Practice Act (c 110, Ill Rev Stats, 1967) provides that post-trial motions must be filed within 30 days after the entry of judgment. The judgment previously entered on thе verdict was vacated immediately, and there was no reason for defendant to file a post-trial motion at that time. In filing its motion within 30 days of the date on whiсh the mandate was filed in the circuit court, defendant complied with the statute.”
In following the holding of the Scoggins case, we find that defendant has not been estopped from filing a proper post-trial motion, if desired, within 30 days after the mandate is filed in the circuit court.
Therefore the judgment of the circuit cоurt is reversed, and the cause is remanded with directions to enter judgment in accordance with the verdict in favor of the plaintiff Cleophus Metcalfe, аnd against the defendant in the sum of $12,000. The cause is also remanded with directions, to allow the defendant to present an appropriate post-trial motion in the circuit court within 30 days after the filing of this mandate, and for further proceedings consistent with this opinion.
Judgment reversed and cause remanded with directions.
LYONS, P. J. and BURKE, J., concur.