APPEAL from the Circuit Court of Lake County; the Hon. ROBERT
McQUEEN, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Plaintiff, Ruth Heaver, brought suit against defendant, Delbert Ward, and another party, David Hyden, for injuries sustained in an automobile accident. Mr. Hyden was dismissed from the case before its conclusion. The jury returned a verdict in favor of the defendant Ward on July 19, 1977.
On July 20, 1977, the trial court, having been informed of allegedly improper activities on the part of jurors, interviewed two jurors, John F. Brookman and James W. Van Cleave.
The trial court entered judgment on the jury's verdict on August 1, 1977. On August 2, 1977, plaintiff filed a motion for a mistrial, alleging that the jury's verdict was based, at least in part, on consideration of materials not properly admitted into evidence at the trial. The trial court treated this as a post-trial motion and denied it on August 11, 1977. Plaintiff appeals.
Before reaching the merits of this appeal it is necessary to discuss certain procedural matters. After plaintiff filed her notice of appeal she moved in the trial court for certification of the transcripts of the post-trial interviews with the jurors. On November 15, 1977, the trial court signed an order which included, inter alia, the following:
"IT IS ORDERED that the court declines to certify the record of sworn interrogation by judge of two jurors after verdict and prior to entry of judgment for the reason that said certification would serve to impeach the verdict of the jury.
IT IS FURTHER ORDERED that the original of the record of sworn interrogation by judge of two jurors after verdict and prior to judgment is to be removed from the Court's file and the Clerk's file stamp is stricken, they having been erroneously filed."
1 We have agreed to consider a transcript of the interviews with the jurors together with the certified record and both parties have based their arguments on portions of this transcript. Certification of the record on appeal is not a jurisdictional requirement. When no prejudice is alleged concerning inaccuracies or omissions in the verbatim report of proceedings, we can, pursuant to Supreme Court Rule 329 (Ill. Rev. Stat. 1977, ch. 110A, par. 329), amend the record and treat it as having been properly certified. (Ray v. Winter (1977), 67 Ill.2d 296, 367 N.E.2d 678.) Therefore, we believe it important to discuss the trial court's order of November 15, 1977.
2 The Illinois Supreme Court Rules of Procedure indicate that the testimony of the jurors should have been certified as part of the record on appeal. Supreme Court Rules 323(a) and 323(b) (Ill. Rev. Stat. 1977, ch. 110A, par. 323(a) and par. 323(b)) provide that:
"(a) Contents. A report of proceedings may include evidence, oral rulings of the trial judge, a brief statement of the trial judge of the reasons for his decision, and any other proceedings that the party submitting it desires to have incorporated in the record on appeal. The report of proceedings shall include all the evidence pertinent to the issues on appeal.
(b) Certification and Filing. A report of proceedings shall be submitted, upon notice, to the judge before whom the proceedings occurred or his successor * * * for his certificate of correctness, and shall be filed, duly certified in the trial court * * *." (Emphasis added.)
The issue on appeal is the alleged misconduct of the jury. Obviously the testimony of the jurors is "evidence pertinent" to this.
3 Illinois case law also indicates that testimony of the jurors should have been certified as part of the proceedings. The facts which support a decree must be in the record on appeal. (Yates v. Thompson (1892), 44 Ill. App. 145.) The record should contain all matters relied upon by the trial court. (Fitzgerald v. Van Buskirk (1974), 16 Ill. App.3d 348, 306 N.E.2d 76.) A trial judge cannot refuse to certify on the basis that the testimony certified, although accurate, would tend to impeach the verdict. See People ex rel. Crofut v. Gibbons (1894), 54 Ill. App. 617.
4 Public policy also requires that any accurate transcript relating to a case which the parties wish to include in the record be sent to the reviewing court. The only questions the trial court may ask are whether the transcript is accurate and whether it relates to evidentiary matters of the case in question. He may not refuse to certify because he feels the testimony is irrelevant, and he ...