
    [No. 492.
    Decided October 3, 1892.]
    The City of Tacoma, Respondent, v. James M. Dougan, Appellant.
    
    APPEAL — PREMATURE ACTION — DISMISSAL.
    Where, on appeal, the appellant claims the action was prematurely-brought, and the respondent, who was plaintiff in the court below, concedes the point, the judgment will be reversed, and the Cause dismissed without prejudice to another action.
    
      Appeal from Superior Court, Pierce County.
    
    
      Tripp, Town, Likens & Dillon, for appellant.
    
      S. C. M lliyan, and F. H. Murray, for respondent.
   The opinion of the court was delivered by

Anders, C. J. —

Appellant was a duly elected, qualified and acting member of the council of the city of Tacoma, from May 18, 1889, to October 28, 1890, during all of which time an ordinance of said city was in full force and effect, fixing the salary of councilmen at $200.00 per annum, payable quarterly, which salary was regularly paid to appellantas the samebecame due. On or about April 18, 1890, appellant presented to the council a bill against said city for alleged services for a period of one hundred and fifty days, amounting to the sum of $900.00. This claim was allowed by the council, and a warrant upon the city treasurer for that sum was duly issued and delivered to appellant. Subsequently, this action was brought to recover the said sum of $900.00 upon the alleged ground that appellant was not entitled thereto, and that the same was illegally paid.

The point was made, upon the argument, as well as in the brief of counsel for appellant, that the action was prematurely brought, and should have been dismissed by the lower court, as the proof showed that at the time it was instituted the warrant had not been paid, either in whole or in part. The learned council for the city concedes that the point is well taken, and it is, therefore, unnecessary for us to consider any question touching the merits of the controversy.

The judgment is reversed, and the cause dismissed, but without prejudice to any new action the plaintiff may see fit to bring.

Dunbar, Stiles, Scott and Hoyt, JJ., concur.  