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4 15 NORTH DAKOTA REPORTS

question of the necessity for amended pleadings, where an interest or estate is acquired after the commencement of the action, and we express no opinion upon that point. The error which is patent upon the face of the judgment roll, and which requires us to re- verse the judgment and order a new trial, is that the questions of law and fact arising under the pleadings as they stand were not determined. The appellant's request that this court modify the judgment so as to make it effective in form and substance as rendered, but as of the date of its rendition, instead of granting a new trial, cannot be granted. This would require us to find upon the issues of fact subsequent to the commencement of the action which the trial judge omitted to find upon. The case is here for review only upon the judgment roll proper. There has been no determination of the issues between the commencement of the action and the date of the judgment, and they cannot be determined except upon the evidence. Had the appellant brought the case here for trial denovo upon the evidence, he would be in a position to urge, as he does, that the title will be presumed to be in the same condition at the date of the judgment as it was when the action was commenced. In the absence of countervailing evidence, the presumption would prevail, and would sustain a finding such as appellant, in effect, asks us to make. See Jones on Evidence, sections 52, 53. The case, however, is not here for trial anew. It is here upon the findings, conclusions and judgment, which fairly show that the is- sues of fact and of law as to the defendant Mary S. Hodgson were only determined by the trial court as of the date of the commence- ment of the action. It is clear we cannot determine the state of the title thereafter, in the absence of an appeal bringing up the evidence for a trial anew.

Judgment reversed and new trial ordered. All concur.

(105 N. W. 941.)