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 of the tax proceedings of 1885, for the reason that the records containing such proceedings were not within the possession of either of the defendants in the former action, but were in the official custody of certain county and city officers, who were not before the court in the former action. Held, further, that no final judgment which could be entered in the former action would operate as a bar to this action, for the reason that the parties defendant were wholly different:in the two actions, and were not in privity with each other.

3. Decision in Farrington Case Followed.

The decision of the case of Farrington v. These Defendants, ante, p. 102, (decided by this court,) will govern in this case; and, following the rule established in the Farrington case, the judgment of the district court is reversed.

PPEAL from district court, Ramsey county; Hon., Judge.

This case was argued before the supreme court of Dakota Territory, and an opinion was handed down. (See 42 N. W. 658.) Afterwards a rehearing was ordered and the case was, on the admission of the state of North Dakota, transferred to this court.

J. F. McGee, for the appellants, argued: That the writing quoted in the following opinion was a judgment; citing, Freeman on Judgments §§ 15 and 16; Rogers v. Gosnell, 51 Mo. 468; Hunniston v. Stainthorp, 2 Wall. 106.

Counsel for appellant did not discuss in his brief the effect of the difference in parties defendant in the two cases.

W. E. Dodge, for the respondent, argued: That the writing quoted in the opinion was not a final judgment; citing, Freeman on Judgments, § 34. He did not discuss the effect of the difference in parties defendant in the two cases.

This is an action for equitable relief, in which the plaintiff asks to have certain taxes levied upon plaintiff's land by the county of Ramsey and city of Devil’s Lake, in 1885, set aside as void, and the record thereof canceled and annulled, and also that the tax certificates describing said lands, issued by the county treasurer, at the tax-sale of 1886, to the