St. George v. Superior Court

PETERS, P. J.

The petition for a writ of mandate must be denied.

The petition alleges that a civil action was tried before the court without a jury, and resulted in a judgment for the plaintiffs; that defendants, petitioners here, appealed; that a reporter’s transcript was duly prepared covering all but the last day of trial; that as to that day no reporter was present; that defendants objected to the filing of the transcript without the last day’s testimony; that thereafter the trial court, acting pursuant to rule 4(e) of the Rules on Appeal, ordered appellants to prepare a proposed settled statement of the proceedings of the last day of trial and specifically ordered that such statement include a ■ certain plat or diagram used by a witness on such day to explain his testimony; that thereafter appellants prepared a proposed settled statement of the proceedings in question without including the plat or diagram; that plaintiffs objected to the proposed statement ; that, after a hearing, the motion was denied, the order reciting “that such proposed settled statement is incomplete and insufficient and omits an exhibit, to wit, a map or plat used by defendants in the examination thereby of Ellis Anderson, a witness called by defendants, which said map or plat said defendants failed and refused to have placed in evidence.” The petition for mandate alleges that the order of denial was based solely on the failure of the proposed statement to contain the map or plat. Petitioners’ sole contention is that, since the map or plat was not introduced into evidence, it was not properly part of the record, and that, therefore, the refusal to certify the proposed statement was arbitrary and capricious.

The basic premise of petitioners that a map or plat used in conjunction with the examination of a witness, but not introduced into evidence, is not properly part of the record on appeal, is unsound. Such a map or plat is an integral part of the witness’ testimony. It is as much a part of the witness’ testimony as his oral statements. As stated by 3 Wigmore (Evidence, 3d ed.) § 790, at p. 175), such a document “takes an evidential place simply as a non-verbal mode of expressing a witness’ testimony.”

There is another principle involved. Under the new

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rules a trial judge, while no longer required to certify a reporter’s transcript, is required to certify to a settled statement. (Rule 7(d) of the Rules on Appeal.) The rules confer full power over such a record in the trial judge. As long as the trial judge does not act in an arbitrary fashion he has full and complete power over such a record. Thus, in