try of a judgment of dismissal, with costs “to be taxed,” but in the same sentence makes the entry of such judgment conditional, as follows: “Unless the plaintiff amends his complaint within twenty days from the date hereof.” It is obvious that such language does not import a judgment in presenti; nor does the language go further than to direct the entry of judgment in futuro upon the happening of a specific contingency. Would any lawyer contend that a mere ministerial officer of the court could convert such an order into a final, judgment by the mechanical operation of transcribing it into a record? The most favorable construction of the order which its language permits is one which would allow the instrument to be converted into a final judgment after the lapse of twenty days from its date, and upon due proof to the court that the complaint had not in the interval been amended. The pleadings and records in the former action were put in evidence without objection, and no such proof appears; and no claim is made in this court that any such proof was presented to the trial court, or to the clerk thereof, at any time. How does it come about that a mere conditional order for the entry of a final judgment has itself become a final judgment? “A judgment is the final determination of the rights of the parties in the action.” Comp. Laws, § 5024 It must be signed by the judge or the court. § 5095, id. We conclude from these premises that the order in question was not a final judgment, in either form or substance; and, consequently, if it had been properly entered as a judgment prior to the commencement of this action—and it appears that it was not—that it would not operate as a bar to this action.
But the order is not a bar for still another reason. It is this: The defendants in the two actions are wholly different, and they are not in privity with each other. In the first action Ramsey county and the city of Devil’s Lake, as corporations, were the only defendants. In this the county treasurer and the purchaser of the lands at the tax-sale of 1886 are the only defendants. The relief sought in the two actions is not the same. The purpose of the first action was to cancel and set aside the tax proceedings of 1885, and to enjoin the county of Ramsey from selling the lands at tax-sale. In the present action the plaintiff is seeking
