Page:North Dakota Reports (vol. 1).pdf/563

 of.” 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. ''Bode v. N. E. Inv. Co., 121''.

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In the former action, which is pleaded in bar to this action, the plaintiff sued the county of Ramsey and the city of Devils Lake in equity, and asked that the county be enjoined from gelling 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 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. Id.

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One shown by record to be void will be reversed on appeal, though neither party raises thr question. Miller v. Sunde, 1.

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Original jurisdiction of supreme court. State v. Nelson Co., 88.

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Of state court, ceases on filing proper application for remoyal of cause to federal court. Miller v. Sunde, 1.

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Calling name of, from list instead of from box, error; but waived if not objected to. Territory v. O'Hare, 30.

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Where there is a substantial conflict in the testimony, the jury are the sole judges of the weight of evidence; and, where the trial court