
    WILLIAM HAWKINS v. FRED FOASBERG AND OTHERS.
    
    July 27, 1928.
    No. 26,622.
    Findings and conclusions must be made in a court case decided on the merits.
    In a trial to the court without a Jury, there must be findings of fact and conclusions of law if there is a determination on the merits. It is not proper practice to order judgment on the merits when the defendant rests. Failure to make findings and conclusions requires a reversal or a remanding of the case for that purpose, following Pioneer L. & L. Co. v. Bernard, 156 Minn. 422, 195 N. W. 140.
    Appeal and Error, 4 C. J. p. 1059 n. 99.
    Trial, 38 Cyc. p. 1954 n. 16.
    Action in the district court for Hennepin county by the owner of 50 per cent of the capital stock of the defendant Ideal Laundry Company (the remaining 50 per cent of which is owned by the defendants Fred and Melinda E. Foasberg) for an accounting, the appointment of a receiver of the defendant company, and for other relief. At the close of the plaintiff’s case the court granted defendants’ motion for a dismissal on the merits. There were no findings of fact or conclusions of law. From an order, Montgomery, J. denying his motion for a new trial, plaintiff appealed.
    Remanded.
    
      Stanley S. Gillam, for appellant.
    
      Brill d Maslon, for respondents.
    
      
      Reported in 220 N. W. 951.
    
   Per Curiam.

In this case, after plaintiff’s evidence was completed and he had rested, defendants also rested and moved for “findings in their favor, finding that the allegations of the complaint as to the material portions are not true, and that the defendants have judgment in their favor for the dismissal of the action on the merits and for costs.” The court granted the motion and ordered judgment of dismissal on the merits with costs and disbursements to defendants.

Plaintiff made a motion to vacate the dismissal of the action and for findings in his favor or for a new trial. An appeal, was taken from an order denying plaintiff’s motion for a new trial. No findings of fact or conclusions of law were made.

G-. S. 1923, § 9311, provides that “when an issue of fact has been tried by the court, the decision shall be in writing, the facts found and the conclusions of law shall be separately stated, and judgment shall be entered accordingly.” Under the authority of Pioneer L. & L. Co. v. Bernard, 156 Minn. 422, 195 N. W. 140, and cases therein cited, such findings and conclusions should have been made in this case. They are absolutely necessary. The case is remanded for the making of a decision in accordance with the statute, the trial court to proceed with the case from the point at which the motion of defendants above set forth was made.

Remanded.  