But it will not be necessary to discuss them all. It will be enough to say that under the circumstances in our case, they do not support plaintiffs' contention. Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288; Morgan v. United States, 304 U.S. 1, 58 S.Ct. 999, 82 L.Ed. 1129; United States v. Nugent, 6 Cir., 100 F.2d 215; Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243; Commissioners v. Smith, 233 Ill. 417, 84 N.E. 376, 16 L.R.A., N.S., 292; Hinkley v. Sagemiller, 191 Wis. 512, 210 N.W. 839; Company A., etc., v. State, 55 N.D. 897, 215 N.W. 476, 54 A.L.R. 948; Clanton v. Ryan, 14 Colo. 419, 24 P. 258; Durden v. People, 192 Ill. 493, 61 N.E. 317, 55 L.R.A. 240; Interstate Commerce Commission v. Louisville R. Co., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; National Labor Relations Board v. Jones Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. The case of Morgan v. United States, 298 U.S. 468, at page 481, 56 S.Ct. 906, at page 912, 80 L.Ed. 1288, is cited principally because in that case the court said: "The one who decides must hear.

Thus no objection to Judge Hoberg's substituting his findings and conclusions for those of Judge Fredricks, who heard the testimony, was expressed at the hearing on the Paulsons' motion. It was not until Judge Hoberg's findings, conclusions, and order for judgment were issued substantially reversing Judge Fredricks's findings, conclusions, and order for judgment that the issue of his authority to do so was raised by a motion of the Meinkes to substitute Judge Fredricks's original findings, conclusions, and order for judgment for those of Judge Hoberg. In Company A, First Reg. N.D. Nat. Guard T. School v. State, 55 N.D. 897, 215 N.W. 476 (1927), this court in the syllabus by the court, held: "Where, upon the resignation of a trial judge, a cause is left undetermined, a succeeding trial judge cannot decide or make findings in the case without a trial de novo on all of the issues."

Swanston cites Storrie v. Shaw, 96 Tex. 618, 75 S.W. 20 (1903), as support for that position. Swanston has also referred us to an early decision of this court in Company A, First Reg. N.D. Nat. Guard T. School v. State, 55 N.D. 897, 215 N.W. 476 (1927), in which this court held that when a trial judge resigns with a case left undetermined a succeeding trial judge cannot decide or make findings in the case without a trial de novo on all of the issues. That decision is not decisive of the issue with which we are here faced, however, because in Company A, First Reg., there was no attempt by the judge who resigned to decide the case after his resignation.

It does not appear that the plaintiff took any exception to the stipulation entered into by his attorneys, or to the trial of the case by Judge Amundson, until after Judge Amundson had made his decision. In support of his contention that Judge Amundson was without jurisdiction to try the case the plaintiff cites the case of Company A, First Regiment North Dakota National Guard Training School v. State of North Dakota, 55 N.D. 897, 215 N.W. 476, 54 A.L.R. 948. The facts in that case however differ from the facts in the instant case. In the Company A case there was no stipulation or consent by the parties that the case might be tried by the successor to the Judge who heard the evidence in the first instance.

The fact that a trial was begun before a judge whose term expired prior to its conclusion will not preclude his successor from trying it, but he must try it de novo. 23 Cyc. Law and Procedure, Judges, p. 565, sec. 5; 48 C.J.S., Judges, p. 1019, sec. 56a; 30 Am. Jur., Judges, p. 751, sec. 38. A judge who did not hear the evidence cannot render a valid judgment in a cause notwithstanding the testimony may have been written down and preserved. He cannot make any finding of fact in a cause tried before his predecessor. 23 Cyc. Law and Procedure, Judges, p. 565, sec. 5. See also Anno. 54 A.L.R. 959 e, and Company A, First Regiment v. State (1927), 55 N.D. 897, 215 N.W. 476. A successor judge may complete any acts uncompleted by his predecessor where they do not require the successor to compare and weigh testimony. 48 C.J.S., Judges, pp. 1018, 1019, sec. 56a. Of course, if the facts are stipulated or uncontroverted, the successor judge is entitled to base findings thereon.

Death removed Judge Atkinson and thereby prevented the possible entry of a final decree for the owner Budd against the architect and contractor. The successor Judge, on a subsequent hearing by a final decree, reversed the order previously entered by Judge Atkinson. The reversal thereof resulted in a substantial pecuniary loss to the owner Budd. The power of the successor Judge under the law to make and enter such an order is not necessary for adjudication, and a decision thereon is unnecessary. For authorities on the point see: 30 Am. Jur. par. 30, pages 750-1; 3 C. J. par. 103, pages 972-3; Hoffman v. Shuey, 223 Ky. 70, 2 S.W.2d 1049; 58 A. L. R. 842, and annotations on p. 848-9; Company A, First Reg. N.D. Nat. Guard T. School v. State, 55 N.D. 897, 215 N.W. 476, 54 A.L.R. 948, and annotations on page 952, et seq. The record, consisting of approximately 700 pages, has been carefully studied and considered.

While there is some conflict in the authorities, the decided [1] weight of authority is that when the trial judge to whom the case has been submitted upon evidence introduced before him dies before making findings of fact, his successor has no authority to make findings of fact and conclusions of law without the consent of the parties involved; in such a case any party has the right to insist upon a new trial. ( Mace v. O'Reilley, 70 Cal. 231, 11 P. 721; Chiricahua Ranches Co. v. State, 44 Ariz. 559, 39 P.2d 640, 643; Jordan Valley Irr. Dist. v. Title Trust Co., 154 Or. 76, 58 P.2d 606, 609; City of Long Beach v. Wright, 134 Cal.App. 366, 25 P.2d 541, 543; Company A, First Regiment, etc., v. State, 55 N.D. 897, 215 N.W. 476, 54 A.L.R. 948; State ex rel. Wilson v. Kay, 164 Wn. 685, 4 P.2d 498; 33 C.J. 973, sec. 103.) However, a party may waive his right to a new trial and consent that the successor may decide the case made on the record before the trial judge ( Thomas-Bonner Co. v. Hooven, Owens Rentschler Co., (6 Cir.) 284 Fed. 386; Cahill v. May-flower Bus Lines, (2 Cir.) 77 F.2d 838), which, in so far as the appellants are concerned, in this case was done.

After the trial judge left his office he could make no further finding or decision. Crane v. First Nat. Bank, 26 N.D. 268, 144 N.W. 96; Company A, First Regiment v. State, 55 N.D. 897, 215 N.W. 476, 54 A.L.R. 948. For this reason, the case cannot be remanded for the making of additional or corrected findings as the statute provides. See chapter 214, Laws 1927.

Authorities seem to be few, but such as have been called to our attention hold in accordance with these views. Company A, First Regiment, etc. v. State, 55 N.D. 897, 215 N.W. 476, 54 A.L.R. 948; Wainwright v. P.H. F.M. Roots Co., 176 Ind. 682, 97 N.E. 8; In re Guardianship of Sullivan, 143 Cal. 462, 77 P. 153; Clanton v. Ryan, 14 Colo. 419, 24 P. 258. The judgment and the findings of fact upon which it is based will be set aside and reversed, and the cause is remanded with instructions to proceed regularly to a trial on the merits as though no previous trial had been attempted.

The case was before this court on a former appeal. Company A. First Regiment N.D. Nat. Guard Training School v. State, 55 N.D. 897, 54 A.L.R. 949, 215 N.W. 476. It was sent back for a new trial, for reasons therein mentioned, without a consideration of the merits involved.