Page:North Dakota Reports (vol. 1).pdf/532

 ant objects and excepts to said conclusion of law upon the ground that the issuing of the warrants or the making of the contract upon which they were issued was never authorized by any district meeting of defendant. Tenth. The defendant objects and excepts to said conclusion of law upon the ground that the issuing of the warrants in suit or the making of the contract upon which they were issued has never been ratified or sanctioned by any district meeting of the defendant. Eleventh. The defendant objects and excepts to the said conclusion of law upon the ground that the defendant has never had title to the land upon which the school building for which the warrants in suit were issued is located.

In this court appellant assigns numerous errors, which assignments need not be set out at length, as they are all based upon the foregoing exceptions to the findings of the trial court. The assignment of errors squarely presents, among others, a preliminary question of precedure of controlling importance in disposing of this case, and one, too, which is of much interest to the profession in its bearings upon the matter of procedure in all cases where the issues of fact are tried to the court without a jury. The point is this: Did the court in this case prepare and sign findings such as are contemplated by the statute regulating such findings? Comp. Laws, §§ 5066-5069. We have concluded that a negative answer must be given to this question. Findings were not waived, nor did the district court exercise its right to require counsel to frame and present proposed findings to the court. Prudent practitioners often volunteer and present proposed findings to the court, but this was not done in this case; nor does the statute or rules of practice require it to be done in any case. Findings not having been required by the court nor voluntarily presented by counsel, the duty of preparing and signing findings of fact and of law is one which the statute expressly devolves upon the court itself. The statutory requirement is explicit and positive in its terms; and the courts of other states, where substantially the same provisions are found, have uniformly construed the language as being mandatory, and not directory merely. Such construction accords with our own views. To hold that the statute is direct-