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 proposеd settled statement of the proceedings of the last day of trial and specifically оrdered that such statement include a ■ certain plat or diagram used by a witness on such day tо explain his testimony; that thereafter appellants prepared a propоsed settled statement of the proceedings in question without including the plat or diagram; that рlaintiffs objected to the proposed statement ; that, after a hearing, the motion wаs denied, the order reciting “that such proposed settled statement is incomplete аnd 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 rеfused to have placed in evidence.” The petition for mandate alleges that thе order of denial was based solely on the failure of the proposed statement tо 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 аnd capricious.
The basic premise of petitioners that a map or plat used in сonjunction 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
*817
rules a trial judge, while no longer required to сertify 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
Burns
v.
Brown,
This does not mean the appellant cannot secure relief from arbitrary action by the trial court. It will be noted that the sole contention made by petitioners is that the court was arbitrary beсause the plat or map was not introduced into evidence. That contention is unsound. Thеre is no allegation that the map or plat is lost or unavailable. It would seem cleаr that, if such a map or plat were lost, or if it were a blackboard diagram that was not рhotographed, the appellant should not be prevented from appealing simply because the map, plat or diagram is not available. In such event, if the appellant desires to appeal knowing that he must assume the risks of the testimony being unintelligible without such а document, and knowing of the presumptions against him, he should be permitted to do so. It would be аn abuse of discretion to refuse to certify solely on that ground. The certification, in such сase, could quite properly recite the failure of the statement to contain thе document in question. But if the document is available, it should be produced if the trial judge believеs it necessary.
In the present case, there being no allegation that the document hаs been lost or is unavailable, and there being no allegation that such fact (if it be a fact) was presented to the trial judge, the petition fails to make out a case of abuse of discretion.
The petition for a writ of mandate is denied.
Ward, J., and Bray, J., concurred.