Kierbow v. Young

FULLER, P. J.

By stipulation of counsel, this action to recover possession of $63, as exempt property which the defendant sheriff had seized under an attachment, was tried to the court without a jury, and this appeal is from a judgment in favor of plaintiff for the full amount claimed and from an order overruling defendant’s motion for a new trial. ■

The objection that judgment was rendered and entered without findings upon any of the issues of fact raised by the pleadings, under which testimony was offered by the respective parties, is presented by an assignment of error which must control the determination of this appeal. The mandatory direction of the statute applicable to this case 'is that the decision of the court must be given in writing within a specified time and be. filed with the clerk, and that: “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. Judgment upon the decision must be entered accordingly.” Sections 276, 277, Rev. Code Civ. Proc. Having failed to find any of the ultimate facts material to the issues presented for determination, there is nothing upon which to base a judgment, and the fact that there was no> request for express findings in no manner obviates the necessity of complying with the above positive and explicit requirement. Gull River Dumber Company v. School District No. 39, 1 N. D. 500, 48 N. W. 427.

Adhering to the rule announced in Thomas v. Issenhuth, 18 S. D. 303, 100 N. W. 436, the judgment appealed from is reversed, and a new trial ordered.

CORSON, J., not sitting.