For respondents there was a brief over the names of Mr. C. L. Pepper and Messrs. Hurlburt & Layton, with an oral argument by Mr. Pepper.

MR. JUSTICE BEAN delivered the opinion of the court.

In addition to the facts stated above, plaintiff alleges that he is the owner of the real estate attached in the action against John W. Dickens, and that on account of a lack of service of the summons upon Ida M. Dickens, the guardian of the defendant in that action, the Circuit Court which rendered the judgment did not acquire jurisdiction over the person of that defendant so as to authorize the rendition of the judgment, and that the same is absolutely void, and should be canceled and the enforcement upon execution enjoined in order to prevent a cloud upon plaintiff's title to the land. The manner of service of summons is regulated by statute, and so long as the legislative enactment does not provide for the taking of property without due process of law, its mandate in this respect must be obeyed. Service of summons upon a person judicially determined to be of unsound mind, for whom a guardian has been appointed, is directed by Section 55, L. O. L., to be made in the following

manner:

"The summons shall be served by delivering a copy thereof, together with a copy of the complaint prepared and certified by the plaintiff, his agent or attorney, or by the county clerk, as follows: 4. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs, and for whom a guardian has been appointed, to such guardian and to the defendant personally."

1. Before the court is clothed with jurisdiction to render a judgment against John W. Dickens, who, it

is alleged in the complaint, has been judicially declared to be of unsound mind, and for whom Ida M. Dickens has been appointed as guardian, summons must be served upon the guardian as well as upon the ward. In no other manner can there be a compliance with our statute. The laws of other states provide differently.

2. It is contended by counsel for defendant that the judgment cannot be attacked by plaintiff in this suit; that this is a collateral attack. The plaintiff asserts that he is the owner of the land, and brings this suit for the express purpose of restraining the enforcement of the judgment for the reason that his rights will be injuriously affected. If the defendant desires a more detailed statement as to the derivation of plaintiff's title to the land, he should have proceeded by motion or in some other manner than by demurrer.

3, 4. If the trial court had obtained jurisdiction to render the judgment in question, then in order to assail it, although the same be irregular or voidable, it would be necessary to allege that there was fraud or unfairness in the obtainment thereof. This suit is for the purpose of canceling the questioned judgment, and for an injunction to enjoin the enforcement thereof upon execution. It is a direct attack upon the original judgment: 3 Words and Phrases, 2070; Morrill v. Morrill, 20 Or. 96 (25 Pac. 362, 23 Am. St. Rep. 95, and note, 11 L. R. A. 155, and note); Walker v. Goldsmith, 14 Or. 125 (12 Pac. 537); Smith v. Morrill, 12 Colo. App. 233 (55 Pac. 824).

5. The owner of real property has a right to restrain the sale thereof under a judgment against a third party for the payment of which the owner of such realty is not liable: Wilhelm v. Woodcock, 11 Or. 518 (5 Pac. 202).

It is suggested by defendant's counsel that the service of the summons in the original action can be completed. It may be that upon the development of the equities of the case other questions may arise, but until they do, it would be premature to discuss them.

The lower court erred in sustaining the demurrer to the complaint; and the decree is reversed and the cause is remanded, with directions to overrule the demurrer, and for such other proceedings as may be deemed proper, not inconsistent herewith.

REVERSED.

Motion to dismiss appeal allowed October 10, rehearing denied November 27, 1916.

HUTCHISON v. CRANDALL.

(160 Pac. 124.)

Appeal and Error-Time in Which to Serve Notice of AppealStatute.

1. Under Section 550, L. O. L., as amended by Laws of 1913, page 617, Section 1, requiring service of a notice of appeal within 60 days from the date of the judgment, and Section 541, declaring that service by mail is deemed complete on the first day after the date of deposit of the notice in the postoffice that the mail leaves such postoffice, a notice of appeal from a judgment rendered May 23, 1916, mailed on July 22d, excluding the day that judgment was rendered and including the last day, was not mailed until the sixtyfirst day, and was too late, and the appeal will be dismissed.

From Columbia: JAMES A. EAKIN, Judge.

This is an action by M. T. Hutchison against Mrs. F. D. Crandall in which a judgment was rendered in favor of plaintiff, and defendant appeals.

APPEAL DISMISSED.

REHEARING DENIED.

Mr. M. F. Miller and Mr. W. A. Harris, for the motion.

Mr. Sam M. Johnson, contra.

In Banc. MR. JUSTICE MCBRIDE delivered the opinion of the court.

This is a motion to dismiss defendant's appeal. The judgment was rendered May 23, 1916, at St. Helens, Oregon. The proof of service shows that notice of appeal was mailed in Portland on July 22d, directed to defendant's attorneys at St. Helens. The statute requires service of notice of appeal within 60 days from the date of the judgment: Section 550, L. O. L., as amended by Laws 1913, p. 617. By Section 541, L. O. L., service by mail is deemed complete on the first day after the date of deposit of the notice in the postoffice that the mail leaves such postoffice for the place to which the notice is sent. Excluding the day that the judgment was rendered and including the last, we find that there remained 8 days in May, 30 days in June, and 22 days in July within which to complete the service. The service by reason of the provisions of Section 541, L. O. L., was not made upon the plaintiff's attorneys until July 23d, which was the sixty-first day.

The notice was therefore served one day too late, and the appeal is dismissed.

DISMISSED. REHEARING DEnied.

Argued July 20, affirmed October 10, rehearing denied November 27, 1916.

MYERS v. STROWBRIDGE ESTATE CO.

(160 Pac. 135.)

Mechanics' Liens-Right to Lien-Contract With Lessee—“Agent”— Statute.

1. Under Section 7416, L. O. L., conditioning the right to a mechanic's lien upon the labor and material being furnished at the instance of the owner or his agent, a lessee under a lease providing, as a part consideration thereof, that he should make permanent improvements which should revert to and become the property of the lessor, and who causes such improvements to be made, becomes the "agent" of the lessor.

Mechanics' Liens-Waiver-Knowledge-Provision in Original Contract.

2. Where the owner and lessor made his lessee an agent to make improvements on the leased premises, a stipulation in the agent's contract that the owner and lessor should not be responsible for any bills contracted in the improvement was not binding upon a subcontractor, unless he assented or agreed to be bound thereby; and the subcontractor's knowledge alone of the original contractor's waiver of his lien did not constitute a waiver of the subcontractor's lien.

Mechanics' Liens-Persons Liable-Owner-Notice Denying Liability.

3. Under Section 7419, L. O. L., providing that every building constructed on land with the knowledge of the owner shall be held to have been constructed at his instance and shall be subject to liens, unless within three days after knowledge of such construction he post a notice that he will not be responsible therefor, premises leased for a term and under which the lessee became the owner's agent and contractor for its improvement were subject to the liens of subcontractors, notwithstanding the posting of such notice.

Mechanics' Liens Improvements of Leased Premises-Owner's Notice of Nonliability-Effect.

4. Under such provision and Section 7416, L. O. L., giving a lien to every person performing labor upon or furnishing material used in the construction of any building at the instance of the owner or his agent, and making every contractor an agent for the owner, and Section 7417, imposing such lien upon the land if it belongs to the person who caused the improvements, the posting of notices by the owner and lessor that it would not be responsible for the payment for labor or materials furnished for improvements made by its lessee, as agent or contractor, would not affect the matter of the waiver of

*For authorities passing on the question of construction of stipulation of contractor or subordinate, with reference to his own rights, see note in 50 L. B. A. (N. S.) 153. REPORTER.