Page:North Dakota Reports (vol. 1).pdf/147

 defendant the New England Investment Company, be canceled and set aside as void. The grounds of relief as set forth in the complaint are, in substance, as follows: First, that the plaintiff's lands are exempt from all direct taxation under the provisions of chapter 99, Laws 1883, commonly known as the “Gross Earnings Law;” second, that, if said lands were taxable as other lands are taxed, the proceedings of the taxing officers in attempting to assess and levy the tax of 1885 were illegal and void, and consequently that the county treasurer was without jurisdiction to sell the: lands at said tax-sale. The defendants answered, denying that there were any errors or irregularities in said proceedings which would render them void. As a separate defense to this action the defendants pleaded a former recovery, in the language following: “That on the 31st day of August, 1886, the above-named plaintiff brought an action in the above-entitled court against the county of Ramsey and the city of Devil’s Lake, in the territory of Dakota, on the same cause of action set forth in the complaint herein; and in said action such proceedings were had that on the 4th day of September, 1886, said county of Ramsey and city of Devil’s Lake recovered judgment against the above-named plaintiff on said cause of action, and upon the merits thereof, dismissing said action, and awarding said county of Ramsey and city of Devil's Lake their costs and disbursements in said action, which said judgment is in full force and effect and unappealed from and which judgment was duly filed and entered in the office of the clerk of the above-entitled court on the 27th day of October, 1886.”

The testimony admitted upon the trial of this action shows that the plaintiff, prior to the commencement of this action, instituted the action pleaded in bar for the purpose of setting aside and canceling the said tax levies of 1885, and to enjoin the county of Ramsey from selling plaintiff's said lands at the tax-sale of 1886. In the former action plaintiff alleged asa sole ground for relief that the lands in question were exempt from taxation for the same reasons which are set out in the complaint in this action. In the former action the defendants answered to the complaint, and plaintiff demurred to the answer for insufficiency. Argument upon the issues presented by the de-