I am convinced that the decree should be affirmed. The county of Muskegon, the county treasurer and the county drain commissioner as such, all were parties in the cases heretofore decided by the circuit court for Muskegon county and by this court, in which this entire drain proceeding was decreed to be a nullity. The county of Muskegon, the county treasurer and the county drain commissioner, as such, appeared as parties in the proceeding before the United States district court for the western district of Michigan, and are likewise parties in the case now before us. The judgment entered in the United States district *Page 615 court provided that the liability of the county of Muskegon was secondary to that of the drainage district. Notwithstanding the former adjudications, and without exhausting its remedy of appeal from that judgment, the county of Muskegon paid the judgment and took an assignment from the plaintiff bondholders therein. The county of Muskegon in that manner now attempts to stand in the shoes of the plaintiff bondholders, and to reimburse itself for the judgment thus paid, by assessing and collecting taxes against the landowners of a so-called drainage district, where there is no such drainage district in existence. Some of these landowners now seek the intervention of the State courts to prevent this unlawful attempt. These landowners against whose lands taxes are to be levied were not parties in the United States district court case. It would be a far stretch of the class representation theory were we to hold that the appearance of the drain commissioner in the United States district court case made these landowners parties therein. They are not foreclosed from denying the legality or the existence of any drainage district. This is a personal defense open to plaintiffs, and so held in Johnson v.Kersh Lake Drainage District, 198 Ark. 743 (131 S.W. [2d] 620,132 S.W. [2d] 658), affirmed by the United States supreme court in Kersh Lake Drainage District v. Johnson, 309 U.S. 485 (60 Sup. Ct. 640, 84 L.Ed. 881, 128 A.L.R. 386).
In conformity with our previous decrees, we must leave the county of Muskegon in the situation it placed itself when it paid the judgment and took over from the plaintiff bondholders the burden of collecting from the landowners. The decree should be affirmed, with costs to plaintiffs-appellees.
*Page 616BUTZEL, J., concurred with BOYLES, C.J.