North Shore, Inc. v. Wakefield, 542 N.W.2d 725, 727 (N.D. 1996). Our decision in Paulson v. Meinke, 352 N.W.2d 191, 194 (N.D. 1984), is controlling. We ruled in Meinke 352 N.W.2d at 193-194, a successor judge erred by amending the findings and conclusions of a retiring judge based upon a reading of the transcript, without giving the parties an opportunity to retry the case:

"The trial judge who makes a decision involving a disputed question of fact should have the opportunity to see and hear the witnesses and determine their credibility." Paulson v. Meinke, 352 N.W.2d 191, 193 (N.D. 1984). "In cases tried without a jury, the general rule is that a party litigant is entitled to a decision on the facts by a judge who heard and saw the witnesses, and a deprivation of that right is a denial of due process." Id. However, N.D.R.Civ.P. 63 allows a successor judge to make findings and conclusions on an existing or supplemented record:

Generally in cases tried to the court, due process entitles a litigant to a decision on the facts by a judge who has heard the evidence. European Beverage, Inc. v. Superior Ct., 43 Cal.App.4th 1211, 51 Cal.Rptr.2d 147, 148 (1996); Stevens v. Hartford Accident Indem. Co., 29 Conn. App. 378, 615 A.2d 507, 511 (1992); Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734, 737 (1960); People v. Lupe, 405 Ill. 66, 89 N.E.2d 824, 826 (1950); Paulson v. Meinke, 352 N.W.2d 191, 193 (N.D. 1984); see In re Buchman's Estate, 123 Cal.App.2d 546, 267 P.2d 73, 84 (1954) ("The power vested in a judge is to hear and determine, not to determine without hearing."). Otherwise, the litigant is deprived of a meaningful hearing.

We do not reach the issue raised by John concerning Judge Jorgensen's compliance with Rule 63, N.D.R.Civ.P., because of the stipulation which governs the actions of Judge Jorgensen in his retrial of the case. We, therefore, conclude Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984) does not apply to this case. We note that the Explanatory Note to Rule 63, N.D.R.Civ.P. (1994) and the Advisory Committee Notes to Rule 63, F.R.Civ.P. (1991) state that in order for a successor judge to certify familiarity with the record and determine the case can be completed without prejudice to the parties "a transcript or a videotape of the proceedings" must be available to the substitute judge.

Later, we limited our holding in Krohnke to situations where all of the evidence was documentary in nature. In Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984), and McCroskey v. Fettes, 336 N.W.2d 645 (N.D. 1983), we held that, where some witnesses testified in court and other testimony was admitted by deposition, the trial court's ability to observe the demeanor of the witnesses who testified in person called for application of the "clearly erroneous" standard. Any possible doubt about application of the "clearly erroneous" standard in this case has been clarified by the amendment to the Explanatory Note for NDRCivP 52, effective January 1, 1986.

Therefore, this court reversed and remanded for a new trial before a different judge. Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984). Following a second trial, Judge Eckert denied Oscar and June any recovery. Oscar appeals, for himself and as personal representative of the estate of June (who has died since this action was commenced), contending that certain findings were clearly erroneous and that Oscar was entitled to judgment as a matter of law.

"In cases tried without a jury, the general rule is that a party litigant is entitled to a decision on the facts by a judge who heard and saw the witnesses, and a deprivation of that right is a denial of due process." Paulson v. Meinke, 352 N.W.2d 191, 193 (N.D. 1984); Anderson v. Dewey, 82 Idaho 173, 180, 350 P.2d 734 (1960); 46 Am.Jur.2d, Judges 37. While this rule would appear to mandate a new trial in a case like the present one, which involves disputed issues of fact, we believe that recent amendments to rule 63 of the Federal Rules of Civil Procedure provide proper guidance to our trial courts in both carrying out the mandate of 51-183f and ensuring that no party is deprived of its due process right to a decision by the judge who heard and saw the witnesses. Rule 63 now provides: "If a trial or hearing has been commenced and the judge is unable to proceed, any other judge may proceed with it upon certifying familiarity with the record and determining that the proceedings in the case may be completed without prejudice to the parties.