Opinion of the Court-DUNBAR, C. J.

[8 Wash. granted by the court; whereupon, after a non-suit, without motion therefor, the court proceeded to render judgment against the plaintiff for a return of the property, or on failure, then for $500 damages and costs.

Twenty minutes after the court convened, or at ten minutes before 9 o'clock A. M., of the same day, plaintiff's counsel appeared in court and moved to vacate the non-suit and judgment and reinstate the case on the docket. The counsel for defendants, in open court, consented thereto. But the court refused so to do. This application was made before the judgment was entered. This action is to set aside said judgment rendered June 30, 1893, and reinstate the case. A demurrer was filed to the complaint and overruled by the court. An answer was filed and the case went to trial. Plaintiff moved for judgment upon the pleadings to vacate the former judgment. The court denied the motion and signed the first bill of exceptions. Plaintiff also moved to set aside the former judgment, because said judgment was in excess of the power of the court.

Appellant assigns as error: (1) That the judgment of June 30th should have been for the dismissal of plaintiff's action, and nothing further. (2) That the court had no authority under the pleadings in said original action to render a money judgment in favor of defendants and against the plaintiff. (3) That the court erred in refusing to vacate the judgment rendered on said day when the defendants consented that said judgment might be vacated.

Various other errors are assigned, but the view we take of assignment number three renders their investigation unnecessary. Nor is it necessary to discuss the question whether the court had authority under the pleadings in the original action to render a money judgment, or whether the judgment should have been limited to a judgment for non-suit. While ordinarily questions of this kind are very largely submitted to the discretion of the trial court, who

is supposed to be familiar with all the circumstances of the
case, yet when it is conceded, under the circumstances of
this case, that the counsel for plaintiff appeared within
twenty minutes after the calling of the court at the early
hour of 8:30 A. M., and it is further conceded that the
counsel for defendants recognized the justice of the appli-
cation of plaintiff to set aside the non-suit and proceed to
the trial of the case, we think that this court is justified in
coming to the conclusion that the trial court abused its
discretion in refusing to vacate the order of default. When
both parties to an action are willing to waive any technical
omissions or slight laches, and try the case on its merits,
we think the court is going too far to arbitrarily refuse to
sanction such an agreement. The judgment will, therefore,
be reversed, and the case remanded with instructions to
grant the relief prayed for in appellant's complaint.
SCOTT, HOYT, STILES and ANDERS, JJ., concur.

8 479 12 436 J14 612

8 479

[No. 1153. Decided March 27, 1894.]

JOHN RICKEY et al., Respondents, v. A. T. WILLIAMS et

al., Appellants.

REMOVAL OF COUNTY SEAT-JURISDICTION OF COUNTY COMMIS

SIONERS INJUNCTION.

The fact that the commissioners of a county have made an order, based upon a proper petition therefor, for the submission to the people of the question of removing the county seat to the town named in such petition, will not authorize them, under Gen. Stat., § 2458-61, to submit at the same election a proposition for its removal to a certain other town, when the petition for removal to the latter place contains the names of less than one-third of the number of people voting at the last preceding general election.

Injunction will lie at the suit of a county officer to enjoin the removal of the county seat, when the board of county commissioners

16 280

Opinion of the Court-ScOTT, J.

[8 Wash. had never obtained jurisdiction by proper petition to order the submission of the question to popular vote. (DUNBAR, C. J., dissents).

Appeal from Superior Court, Stevens County.

R. B. Blake, and F. T. Post, for appellants.
Thomas C. Griffitts, for respondents.

The opinion of the court was delivered by

SCOTT, J.-On August 20, 1892, a petition was presented to the board of commissioners of Stevens county, purporting to be signed by four hundred and twelve of the electors of said county, praying for a change of the county seat from Colville to Chewelah, and asking that at the next general election the question be submitted to a vote of the people. Whereupon said board of commissioners, on said date, made an order reciting that:

"It appearing to this board that said petition is signed by names to the number of at least one-third of the total number of votes cast at the last general election held in Stevens county, it is ordered that said petition be granted, and that said proposition be submitted to the voters of said Stevens county at the next general election."

On October 6, 1892, another petition was presented, purporting to be signed by one hundred and twenty-four of the electors of said county, asking for a removal of said county seat to Kettle Falls. Whereupon, on said date, the board made the following order:

"The petition of Arthur W. Holly and one hundred and twenty-three others for an election for the removal of the county seat from Colville to Kettle Falls read, and on motion of C. K. Simpson the prayer of the petitioners granted, and auditor ordered to have notices printed and posted.

It appears that two of the then commissioners were in favor of this motion and one was opposed to it.

On October 7, 1892, another petition was presented pur

Mar. 1894.]

Opinion of the Court-SCOTT, J.

porting to be signed by fifty-one of the electors of said county, praying for a removal of the county seat to Springdale. Whereupon the board on said date made the following order:

"Petition of Mark P. Shaffer and fifty others for an election for change of county seat of Stevens county from its present location at Colville to Springdale, Stevens county, granted."

It appears that a vote was taken upon these propositions at the general election held on November 8, 1892, and that 599 votes were cast in favor of Kettle Falls; and that thereafter, on November 15, 1892, said board of county commissioners declared that said town of Kettle Falls had received the requisite number of votes to constitute it the choice of the electors of said Stevens county as its county seat, and ordered that notices of the result be posted as required by law.

The respondents brought this suit to enjoin the removal of said county seat from Colville to said town of Kettle Falls. They allege that they are taxpayers of said county; that respondent Rickey is county treasurer, and that appellants Williams, Weston and Simpson constituted the board of commissioners, and that the other appellants are the county officers of said county. After the induction of the newly elected county officers into office, in January, 1893, respondents filed an amended complaint, and sought to make the new officers parties defendant to the action. The court allowed the filing of the amended complaint, but denied the motion to make new parties. The complaint further sets up the filing of the petitions aforesaid, the election thereon, the decision of the commissioners, and that they were threatening to remove the county seat pursuant to such decision; and further alleged that the petition praying for a removal of the county seat to Kettle Falls was not signed by one-third of the qualified electors of said

31-8 WASH.

Opinion of the Court-Scott, J.

[8 Wash. county, and that the board did not pass upon the sufficiency of the Kettle Falls petition. The complaint also contains further allegations to the effect that great expense would be entailed upon said county in case such removal was made. These allegations were denied by the answer, and a trial was had and judgment rendered in favor of the plaintiffs, enjoining the removal of the county seat from the town of Colville, and from said judgment this appeal is prosecuted.

We find it unnecessary to discuss many of the questions raised by counsel, respectively. The respondents contend that said election was void, and that the board of commissioners had no jurisdiction to submit the question of the removal of such county seat from Colville to Kettle Falls in consequence of the fact that the petition therefor had not been signed by the requisite number of qualified electors of said county. Appellants dispute this, but first contend that the lower court had no jurisdiction over the subject matter of the action; that the matter of establishing and removing county seats is not a judicial function, but is purely legislative in character.

We will first discuss the proposition as to the validity of the election. It was admitted upon the trial that at the general election held on November 4, 1890, which was the last preceding general election to the one in question, there were cast in Stevens county 1,033 votes. Consequently, it appears beyond controversy that there was not the requisite number of signers upon the face of the petition asking for a removal of the county seat from Colville to Kettle Falls. But appellants contend that, under the law relating to the removal of county seats, the petition first presented, which was signed by the required number of electors, was sufficient to give the board jurisdiction to submit the matter of moving such county seat to Kettle Falls as well as to Chewelah. The statutes in question are $$ 2458-2461, Gen. Stat., which are as follows: