Cal. 34; Carr v. Cronin, 54 Cal. 600; and see Hayne, New Trial & App. pp. 721, 722. If it be true, as contended orally, that no waiver of findings was ever in fact made, such an omission was an irregularity of such a character as would authorize the reversal of the judgment; but, as we have already stated, to be available, the irregularity must be made to appear of record affirmatively, and the mere absence of the waiver from the statutory roll does not make such error appear affirmatively. The legal presumption is that the waiver was filed. Hence the judgment cannot be reversed, and the assignment of error is overruled.
But, reasoning from a different standpoint—one not suggested by counsel—we reach the same conclusion, i. e., that the judgment should be affirmed. It does not appear that the attention of the trial court was called to the alleged irregularity which would be involved in entering judgment without findings, or a waiver thereof being first filed. To enter a judgment in the absence of findings or a waiver would be irregular, and a direct violation of the terms of thestatute. Such a judgment would be set aside promptly by the district court on proper application therefor by motion. We suggest that in such cases, and in all cases of an irregular entry of judgment in the district court, a motion is the proper remedy. A motion is the speedier remedy, and in many cases would avoid the more tedious and expensive process of direct appeal. This is the established course of practice in the states of New York, Minnesota, and some other Code states. Thomas v. Tanner, 14 How. Pr. 426; 3 Wait, Pr. 668; 4 Wait, Pr. 637. Whether the irregularity does or does not affect the jurisdiction makes no difference. Remedy by motion is efficacious in either case-Railroad Co. v. Murphy, 19 Minn. 500 (Gil. 433); Covert v. Clark, 23 Minn. 539. Where the defect goes to the jurisdiction a motion to set aside will lie after the expiration of one year after entry of judgment. Lee v. O'Shaughnessy, 20 Minn. 173 (Gil. 157); also, cases cited in Minnesota Index Digest, pp. 299 300. Should the trial court err in refusing togrant, orin granting, the relief by motion, an appeal would lie from the order, under subdivision 2, § 5236, Comp. Laws. Such order would be a
