Upon Petition for Rehearing.
Robinson, J.Some three years ago this action was commenced by the plaintiffs against the defendants and against a corporation which, then had title to the land in question. The complaint in that action averred that the defendants in this action were made parties, not because they then had any claim or title to the land, but because they might acquire title. The complaint stated no cause of action against the defendants in this action, but, on failure of the defendants to answer, plaintiffs took a default judgment, declaring that the defendants had no title or interest in the land. The default was very properly set aside, and the judgment setting it aside is not in any way open to review or question.
The case was duly brought to trial on the issues presented by the respective claims of the plaintiffs and the defendants. The district court gave judgment in favor of the defendants, which has been affirmed by the decision of this court. Now the plaintiffs present a petition for rehearing, virtually attacking the decision of this court and asking the court to reconsider several matters having no bearing on the case. Such a petition looks like an imposition. The default judgment is not in the case. It was completely wiped out by the decision of this court. The plaintiffs’ claim of title is based on a tax deed manifestly void on its face. The plaintiffs have never had any color of title to the land or any reasonable excuse for this long-protracted litigation. It is conceded that Jones T. Wilson owned the patent title to the land, and he made a deed purporting to convey it to his corporation, which has ceased to exist, and now he and the other defendants have the *309patent title and a right to the immediate possession of the land without any further delays or vexatious litigation.
Motion denied.
Birdzell, J.Counsel for appellants have filed a long petition for rehearing in this case, which is directed, not only to the opinion filed upon this appeal, but, as is the case with a large portion of the brief on appeal, to the former decision of this court in the case of Murphy v. Missouri & K. Land & Loan Co. 28 N. D. 519, 149 N. W. 957, as well. It is contended that because the defendants, some of whom had defaulted before the original trial, had been referred to in the complaint as those who “may claim some interest or estate in said land, so they (plaintiffs) are informed and believe because they are incorporators, stockholders, or trustees in the Missouri & K. Land & L. Co.,” a default judgment against them in individual capacity would prevent them from subsequently asserting a title that might devolve upon them as trustees of a defunct corporation. This question was disposed of upon the former appeal, and the rule there laid down and directions given have become the law of the case. In that appeal the default judgment was set aside and the trustees’ names were ordered substituted as of September 3, 1912, the date of their application. It is strenuously argued that neither the district court nor this court had power to enter any order or judgment depriving the plaintiff and appellant of the benefit of the default judgment previously obtained. But this court is of the opinion that, from its commencement to its conclusion by a final judgment, the district court and this court, upon appeal under the de novo statute, have ample authority to enter such orders, or to modify any orders previously entered, as to enable it to render a proper judgment upon the merits. Furthermore, this court is of the opinion that the former decision touching this question has become the law of the case.
The petition enumerates a number of questions relating to the power of the defunct corporation to hold a title which could descend to the trustee defendants as its successors. These are raised and discussed in the brief, but are not referred to in the original opinion filed upon this appeal. If all the contentions of the appellant in this connection *310are correct, we do not see wherein their title is strengthened. These are questions which the original grantor could not raise, because he is not permitted to thus collaterally attack the corporate existence (10 Cyc. 1134), much less can they be raised by one who is a stranger to the chain of the title. The petition for rehearing is denied.
We concur in Mr. Justice Birdzell’s opinion on the rehearing: Bruce, Grace, and Christianson, JJ.