Page:North Dakota Reports (vol. 2).pdf/445

 Hence the mere fact that no waiver of findings is in the judgment roll raises no presumption either way. Under the statute the clerk could not—no bill or statement embracing such waiver having been allowed—place such a paper in the roll if it were on file; and, if he did so, such waiver could not be considered by this court as a part of the record. Hayne, New Trial & App. p. 690. Nor would such waiver belong to the class of papers which, though not named in the statute, are entitled to a place in the judgment roll, viz: “Papers in any way involving the merits, and necessarily affecting the judgment.” The proposition is too plain to need the support of either argument or authority that a waiver of findings could not in any supposable case involve the merits or affect the judgment, in a legal sense. The result is that this court will not presume, for the purpose of discovering error and reversing a judgment otherwise regular on its face, that the court below, in the very teeth of the statute, rendered and entered a judgment without filing a decision, and without a written waiver of such decision being filed. On the contrary, the rule is well settled that a court of review will favor every reasonable presumption necessary to support the judgment of a court of competent jurisdiction. He who alleges error in a court of review as a ground of reversing a judgment must bring the error upon the record, and make it appear affirmatively. It is a well established rule of practice in California, from which state our civil procedure is chiefly drawn, that orders and papers which do not belong in the statutory judgment roll, but are erroneously annexed to the roll by the clerk of the trial court, are alien papers, and will be stricken out on proper motion. Hence, as we have seen, the clerk of the district court could not properly place the waiver of findings in the judgment roll, in the absence of a bill of exceptions or statement which embodied the waiver, nor can the absence of the waiver be construed as error. On the contrary, it is proper, in support of the judgment, to presume, in view of the non-filing of the decision of the lower court, that such decision was duly waived. This identical question has been ruled upon in the same way by the supreme court of California in several eases. Mulcahy v. Glazier, 51 Cal. 626; Smith v. Lawrence, 53