The opinion
Rehearing denied June 3, 1924.
On Petition for Rehearing.
( 226 Pac. 427 .)
BROWN, J.
This is a petition for rehearing based upon a point not assigned as error by plaintiff upon appeal in the case of Maddox v. McHattan, reported in 111 Or. 324 ( 224 Pac. 833 ).
The plaintiff appealed from a judgment of the trial court rendered in this cause, tried to the court below without a jury.
The contention of plaintiff now is that this court erred in assuming jurisdiction of his cause on appeal. *329 It is now asserted for the first time that jurisdiction failed because the findings of fact and conclusions of law were not filed by the trial court until after the expiration of more than twenty days, as provided by statute, from the adjournment of the term of the lower court at which the evidence was adduced upon the hearing: Or. Laws, § 158.
The findings of fact and conclusions of law were filed before the entry of judgment. It does not appear that the plaintiff was prejudiced by the trial court’s delay.
“The time within which findings should be filed is generally fixed by the statutes of the several states. Such statutes are, however, as a rule, directory and not mandatory.” 8 Ency. Pleading & Practice, p. 949.
See also Haynes on New Trial and Appeal, § 238, note 13; 38 Cyc. 1951, 1952 and 1962.
The rule that the statutory provision relating to the time within which the findings should be filed is directory is sustained by the weight of authority: Burger v. Baker, 4 Abb. Pr. (N. Y.) 11; People v. Dodge, 5 How. Pr. (N. Y.) 47; Lewis v. Jones, 13 Abb. Pr. (N. Y.) 427; McLennan v. Bank of California, 87 Cal. 569 ( 25 Pac. 760 ); Quill v. Gallivan, 108 Ind. 235 ( 9 N. E. 99 ), and cases there cited.
The Supreme Court of Minnesota clearly states the reason for holding a like statutory provision to be directory.
“ * * The district court, under our system, is the one court of general jurisdiction; and when it has once tried a case according to law, it does not, like certain courts of limited jurisdiction, lose its power to render judgment by mere delay beyond a specified time. “When the parties have once tried and submitted their case, they have- done all that can be re *330 quired of them. They have no control over the judge to force him to decide within the time. * * They should not, therefore, be prejudiced by the omission.” Vogle v. Grace, 5 Minn. 294, 295 .
The decisions of the courts of Texas are to the contrary.
The petition for rehearing is denied.
Rehearing Denied.