Page:North Dakota Reports (vol. 2).pdf/444

 ever filed in the court below. This conclusion becomes irresistible, in view of the fact that the clerk of the district court is required by the appeal statute (§ 5217, Comp. Laws) to transmit the judgment roll to this court, where, as in this case, the appeal is from the judgment. We must assume, until the contrary is made to appear, that the clerk has performed his duty under the statute, and transmitted to this court the entire judgment roll. Moreover, the district court, in compliance with a salutary rule of this court, which is intended to aid in securing the identification of the papers which enter into the judgment roll, has named each paper transmitted to this court in the roll, and declared distinctly that such enumerated papers constitute the judgment roll in the action, “and the whole thereof.”

If the decision of the case turned wholly upon considerations already mentioned, it would be the duty of this court to reverse the judgment of the court below as irregularly entered, because, as we have seen, the record, and the presumptions arising from it, disclose the fact that the trial court never reduced to writing and filed its decision in this action. But the whole statute regulating decisions in such cases must be taken into account and construed together; and, when this is done, it will appear that in a class of cases the decision in writing is not indispensable. The, decision may be waived. Section 5068, Comp. Laws, reads as follows: “Findings of fact may be waived by the several parties to an issue of fact (1) by failing to appear at the trial; (2) by consent in writing filed with the clerk.” In this case findings were not waived by non-appearance at the trial; and hence, if waived at all, the waiver must have been made “by consent in writing filed with the clerk.” No such waiver is found in the record sent to this court and no such paper is named in the judye’s certificate annexed to the judgment roll. It is strenuously insisted by the appellant’s counsel that this court must presume, as it did in the case of the missing decision of the trial court, that no waiver of the findings was made in fact, because if made it must be filed to be effectual under the statute. This reasoning we cannot adopt. The statute (§ 5103, Comp. Laws) does not name such a paper as a written waiver of findings as one which shall form a part of the judgment roll.