Page:North Dakota Reports (vol. 2).pdf/442

 court, hearing the evidence introduced, and after argument by Francis & Southard, attorneys for the plaintiff, and B. F. Spaulding, attorney for the defendant, finds that the plaintiff is entitled to judgment as prayed for in its complaint; and now, upon motion of Francis & Southard, attorneys for the plaintiff, it is ordered and adjudged that plaintiff do have and recover judgment against said defendant for the return of the property described in said complaint, or the plaintiff's interest therein, which is assessed at the sum of $993.80, together with the costs and disbursements therein, taxed at $31.75.” Annexed to the judgment roll is the following certificate of the presiding judge of the district court in which the judgment is entered: “I, Wm. B. McConnell, judge of the district court of the third judicial district of the state of North Dakota, do hereby certify that the above and foregoing papers, to-wit, complaint, summons, answer, statement of costs and disbursements, and judgment, are contained in and constitute the judgment roll in the above-entitled action, and the whole thereof. Wa. B. McConnell, Judge.” The enumerated papers in said certificate, and none others, are found in the record filed in this court. No statement of the case or bill of exceptions was ever settled or allowed in the action. The appeal is from the judgment. The only error assigned by the appellant is as follows: "There is manifest error upon the face of the record, in that the district court erred in rendering or entering judgment without a decision in writing and findings of fact being made and filed or waived.”

The judgment recites on its face that a jury was waived, and that the court heard the evidence. In such cases the statute explicitly requires that the “decision must be given in writing, and filed with the clerk, * * * and no judgment shall be rendered or entered until after the filing of such decision.” “In giving the decision, the facts found and the conclusions must be separately stated.” Comp. Laws. §§ 5066, 5067. We are of the opinion that these statutory provisions are mandatory and not merely directory. That such is the legislative intent is emphasized by the amendment (§ 1, c. 25, Sess. Laws 1887) declaring “no judgment shall be rendered or entered until