The Court below made an order (which was entered in the minutes), that judgment be entered in favor of defendant. Thereupon, the Clerk entered judgment. Subsequently, the Court, on the motion of the plaintiff, ordered the judgment to be set aside, and the cause restored to the calendar for trial, for the reason that it appeared to the Court that no findings of fact were ever prepared, signed, or filed, and the findings were not waived.

We see no error in this. If the judgment had been appealed from, we would, in order to sustain the judgment, presume that findings had been filed or waived; but in this case that presumption is overcome by the statement in the bill of exceptions that there were no findings, and that findings had not been waived.

The orders are affirmed.