Page:North Dakota Reports (vol. 2).pdf/441

 3. Where the record does not affirmatively disclose the fact of non-waiver of findings, this court will presume, in support of a judgment, that findings were duly waived.

4. Where judgment is irregularly entered, good practice requires that it should be first assailed by motion in the district court. The order made on such motion is appealable, under subdivision 2, § 5236, Comp. Laws. But where a judgment is absolutely void or illegal on its face, it will be reversed by direct appeal from the judgment; but even in such casos the better rule is to begin by motion.

APPEAL from district court, Cass county; Hon. William B. McConnell, Judge.

Spaulding & Phelps, for appellant. Francis & Southard, for respondents.

Action by Garr, Scott & Co. against B. F. Spaulding for the possession or value of certain personal property. Judgment for plaintiffs. Defendant appeals. Affirmed.

The authorities relied upon by the counsel are set forth in the opinion of the court, which was delivered by

Wallin, J. In this action, plaintiffs sue for the possession or value of certain personal property described in the complaint, and situated in the county of Cass, and claim a special property therein, by virtue of a certain chattel mortgage thereon executed in the state of Michigan. Defendant, by his answer, denies generally the allegations of the complaint, but admits that he isin possession of the property described in the complaint, and sets up ownership in himself, derived by a purchase of the property at a foreclosure sale of a certain other chattel mortgage executed and filed in said county of Cass, and a copy of which is made a part of the answer. The issues involve the question of the respective rights of the parties to the possession of the property in controversy, as such rights are affected and controlled by the two mortgages. On the 20th day of September, 1888, judgment was entered in the action by the district court as follows: “The above-entitled action coming on to be heard and determined this 20th day of September, being at the regular June, 1888, term of said court, a jury being waived, the