Page:North Dakota Reports (vol. 1).pdf/145

 upon said certificates or upon said tax-Sale, for the lands in question, or any part thereof; the action to be without costs to either party in either court. Reversed.

, dissenting.

, Trustee, Plaintiff and Respondent, v. and, County Treasurer of Ramsey County, D. T. Defendants and Appellants.

1. Order Overruling Demurrer with Leave to Amend is not Final Judgment.

In a former action a demurrer was interposed to the answer, and upon argument thereon the district court made the following order: “It is ordered that said demurrer be, and the same is hereby, overruled. It is further ordered that said demurrer be, and the same is hereby, sustained to the plaintiff's complaint, and that said action be, and the same is hereby, dismissed, with costs to be taxed, unless the plaintiff amends his complaint within twenty days from the date hereof.” Held, that such order was not a final judgment in presenti, but, on the contrary, was an order that judgment might be entered in futuro upon a specified contingency. Held, further, that such an order could not be converted into a final judgment by the mere voluntary act of the clerk of the district court, who copied it into the judgment docket without being directed so to do by the court and without any proof being made that the specified contingency upon which judgment could be entered had occurred.

2. Former Action Pleaded in Bar; Defendants in the Actions Different and not in Privity.

In the former action, which is pleaded in bar to this action, the plaintiff sued the county of Ramsey and the city of Devil’s Lake in equity, and asked that the county be enjoined from selling plaintiff's lands for the tax of 1885 thereon, and that such tax be annulled and canceled of record. Held, that, if final judgment had been regularly entered in such former action for the relief demanded therein, such judgment would not have been effectual to prevent the sale of the lands for taxes, for the reason that the duty of selling lands for delinquent taxes, under the law, devolves upon the county treasurer alone, and the county, as such, has no power to make such sale. Held, further, that such judgment would have been ineffectual to compel the cancellation