[i. e., the Rockne Case] was, in substance, that such a lien would not be made available against any taxation or sales thereunder. Notwithstanding the expression referred to, it is not believed that the court intended to hold that a legal title to the lands had not passed by the grant to the company, and thus overrule or qualify a long line of decisions announced after the most mature consideration, and discredit the security which, only a few weeks before, congress had authorized by mortgage on the lands to raise funds to construct the road, but only to declare that the power of disposition by the grantee was stayed by the government until the payment of the costs mentioned was made, and the right of the government to enforce such payment could not be defeated by the tax laws of the territory.” It thus appears that in the Rockne Case the plaintiff was the owner of at least the equitable title to the land, and, in the other case, of the fee simple, when the suit to remove the cloud was instituted. The cases are not, therefore, in point.
We hold that the tax proceedings are void under the allegations of the complaint, but that the plaintiff has no such interest in the property as entitles him to maintain this action. The order and judgment of the district court sustaining the demurrer are therefore affimed. All concur.
Bartholomew, J., having been of counsel, did not sit upon the hearing of the above case, nor participate in the decision herein given.
P. P. Persons and Others, Plaintiffs and Appellants v. John Simons, Defendant and Respondent.
1. Appealable Order; Order Denying Motion for Judgment is Not.
An order of the district court refusing an application for judgment upon the findings of a jury is not an appealable order, within the meaning of subdivision 1, § 5236, Comp. Laws 1887, which subdivision is as follows: "An order affecting a substantial right, made in any action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken." Such an order neither determines an action nor any issue in an action, nor is it the le-
