Page:North Dakota Reports (vol. 1).pdf/152

 former action. Such officials were bound by strict legal enactments to safely keep such records; and, in the performance of such duty, they might lawfully resist any attempt which might be made by the defendants in the former action to cancel, annul, or in any manner efface the evidence of the tax levies and assessments in question. It was quite unnecessary to enjoin the defendants in the former action from selling plaintiffs lands for the taxes in question, as they did not, nor did either of them, have the power todo so. Our conclusion upon this feature of the case is that necessary parties defendant were omitted in the former action, and that the defendants in the present action are not in privity with the defendants in the former action. In this conclusion we do not decide that the county and city would not have been proper parties in the former action. On the contrary, we think that the two corporations as such, would have been proper parties thereto if they had been joined as co-defendants with the necessary parties who were omitted.

We deem it not improper to add here, as a matter of history, that thiscase was originally appealed to the supreme court of the territory of Dakota, and was decided by that court. Bode v. New England Investment Co., 42 N. W. Rep. 658. Subsequent to its decision, upon application of defendants’ counsel, a rehearing was granted, but such rehearing was never had in the territorial court, and the case came to us as a part of our inheritance from the territory and was reheard here. The territorial court did not discuss the question as to whether or not there was a final judgment, in fact or in law, in the former action, but expressly avoided doing so, and assumed, for the purposes of the decision, that the alleged judgment was a judgment, and was final, and then proceeded to hold that the same was not a bar to this action, because it was not an adjudication which involved the merits of this action. We reach the same result, practically, but prefer to rest our decision upon the preliminary questions presented by the record.

The questions involved in this action, upon the merits, are identical with those presented in the case of Farrington, Trustee, v. the Defendants in this action, ante, 102, (decided at the present term.) The disposition of this case will be governed