in this case can be accomplished ought not to be so modified as to leave the question of the good faith of the transaction to a jury as a question of fact, as is the case in many of the states, either by virtute of the statute or because the courts have modified the severity of the old common-law rule. Of course, purchasers can conform to the requirements of the statute, but they are seldom aware of the severe penalties which attach to such conduct as characterized the plaintiff in making his purchase in this case. As new facts may be shown on a ney trial, we will reverse the judgment and order herein, and direct a new trial. All concur.
Garr, Scott & Company, a Corporation, Plaintiff and Respondent, v. B. F. Spaulding, Defendant and Appellant.
Judgment Roll—Annexing Decision of Court—Waiver of Findings—Presumptions—Practice—Appeal.
1. The statute (§ 5066, Comp. Laws) construed, and held to be mandatory, and not merely directory. It is the duty of the clerk of the district court, in cases tried by the court without a jury, to annex the decision of the trial court to the judgment roll; and where, in such case, no decision is found in the record transmitted to this court on appeal from a judgment, it will be presumed, in the absence of any explanation, that no decision was made or filed in the court below. A decision is a paper “ which involves the merits and necessarily affects the judgment;” and hence it forms a part of the statutory roll, under subdivision 2, § 5103, Comp. Laws, unless findings are waived in writing filed with the clerk under § 5068.
2. Where the trial is before the court without a jury, it would be irregular, and reversible error, to enter judgment without first filing the decision of the trial court, in a case where non-waiver of findings appears affirmatively from the record. In such case the judgment would be illegally entered, and invalid on its face. But the mere absence of the waiver from the judgment roll does not show error affirmatively. Such waiver would not be a part of the statutory roll; and, in the absence of a bill or statement bringing the waiver upon the record, this court will presume, in support of the judgment, the contrary nowhere appearing of record, that a waiver of findings was made and filed in the court below.
