after the filing of such decision.” Before the amendment, the supreme court of California, construing the language of the section as it was originally enacted as a part of the Code of that state, repeatedly held that the requirement was mandatory. Dowd v. Clark, 51 Cal. 263. This court has also made a similar holding in Gull River Lumber Co. v. School Dist., 1 N. D. 500. The question is therefore settled in this jurisdiction.
Counsel for appellant further argues that subdivision 2, § 5103, Comp. Laws, in effect, though not in terms, requires the clerk of the district court, in making up the judgment roll in cases tried by the court without a jury, to include the decision of the district court, embracing findings of fact and conclusions of law, in the judgment roll. This argument is based upon the following language in subdivision 2, supra: “All orders or papers in any way involving the merits, and necessarily affecting the judgment,” must be placed in the roll, etc. In this we entirely agree with appellant’s counsel. The decision is required to be reduced to writing and filed, and must embrace findings of both law and fact. It is obvious, therefore, that the decision which is, in effect, among other things, an “order” for judgment, is both an “order” and a “paper” involving the essential merits, and one which necessarily not only “affects” the judgment, but actually determines the judgment to be entered. It follows that it is the duty of the clerk of the district court to include the decision of the trial court in such cases as a part of the statutory judgment roll, in all cases where a decision has been filed, and to do so as a part of his official duty, not depending upon the request of counsel or the direction of the trial court. Nor should the decision be embraced in either a bill or statement in cases where either one or the other is allowed. The decision is an essential part of the statutory judgment roll, under subdivision 2. Thomas v. Tanner, 14 How. Pr. 426; Reich v.’ Mining Co., 3 Utah 254, 2 Pac. Rep. 703. We further agree with counsel and hold that the fact that the decision of the trial court is not in the judgment roll, where it belongs, in the absence of any explanation of the omission, will justify this court in presuming that no decision of the district court was
