below raised the point that the final application for judgment was not preceded by an order confirming the report of the referee. Held, that defendant has waived the irregularity, if such It was, and cannot raise the point for the first time in this court. Little v. Little, 175.
Review—Annexing Decision of Court.
14. The statute ($4066, 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. Gurr, Scott & Co. v. Spaulding, 414.
Review—Presumptions.
15. 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 aftirmatively 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 aftirmatively. 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 jndgment, the contrary nowhere appearing of record, that a waiver of findings was made and filed in the court below.
16. Where the record does not affirmatively disclose the fact of nonwaiver of findings, this court will presume, in support of a judgment, that findings were duly waived. Id.
ASSESSMENT.
See Taxation.
ATTORNEY’S FEE.
In foreclosure of mortgages, see Mortgages, 1.
ATTORNEY AND CLIENT.
Acquiring Interest in Pending Action.
While the relation of attorney and client continues the attorney can, as against his client, acquire no beneficial interest in or title to the subject-matter of the litigation antagonistic to the title or interest of his client. Whether or not such title so acquired can be assailed by a third party is a question upon which the members of this court are not agreed. Yerkes v. Crum, 72.
ATTORNEY GENERAL.
Duty of in mandamus, see Mandamus, 5.
