Page:1862 Territory of Dakota Session Laws.pdf/111

94 in the action arising on contract, and with the assent of the court, in other actions, in the following manner: 1. By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney. 2. By written consent in person, or by attorney, filed with the clerk. 3. By oral consent in open court entered on the journal.

. 277. Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except, generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately, from the conclusions of law.

. 278. All or any of the issues in the action, whether of fact or law, or both, may be referred, upon the written consent of the parties, or upon their oral consent in court entered upon the journal.

. 279. When the parties do not consent, the court may, upon the application of either, or of its own motion, direct a referee in either of the following cases: 1. Where the trial of an issue of fact shall require the examination of mutual accounts, or where the account is on one side only, and it shall be made to appear to the court, that it is necessary that the party on the other side should be examined as a witness to prove the account; in which cases the referees may be directed to hear and report upon the whole issue, or upon any specific question of fact involved therein; or, 2. Where the taking of an account shall be necessary for the information of the court before judgment, in cases which may be determined by the court, or for carrying a judgment into effect; or, 3. Where a question of fact, other than upon the pleadings, shall arise upon motion or otherwise, in any stage of the action.

. 280. The trial before referees is conducted in the same manner as a trial by the court. They have the same power to summon and enforce the attendance of witnesses, to administer all necessary oaths in the trial of the case, and to grant adjournments, as the court, upon such trial. They