
    ECCLES LUMBER CO. v. MARTIN et al.
    No. 1711.
    Decided November 14, 1906
    (87 Pac. 714).
    1. Mechanics’ Liens — Property Subject to Lien.— Under Revised Statutes 1898, tit. 39, c. 1, entitled “Mechanics’ Liens,” creating a mechanics’ liens, and providing for the enforcement thereof, etc, a mechanic’s lien attaches to land, and, unless the person against whom the claim is made has some estate in the land on which the improvement is made, no lien attaches either to the land or the improvement.
    2. Same — Contract by Owneb oe Agent — Necessity.—A contract, express or implied, for an improvement on land must have been made with the owner thereof or his authorized agent before a claim for a lien for the improvement can he maintained.
    
    3. Same — Statutes—Construction.—Revised Statutes 1898, section 1386, prescribing the necessary acts to be done by a claimant to acquire a lien, and section 1387, providing that liens against two or more buildings may be included in one claim, but the claim must designate the amount claimed to be due on each building, must be construed in connection with each other, and the two must be construed in connection with the chapter entitled “Mechanics’ Liens,” for, to arrive at the legislative intent, the court cannot segregate a section or a part of a chapter on a subject, but the object of the law as a whole must be considered.
    4. Same. — Revised Statutes 1898, tit. 39, c. 1, creating mechanics’ liens, prescribing the methods to secure them, and providing a procedure to enforce them as against the property, the owner and among other claimants, must be construed on the theory that some of the provisions are intended for the owner, and others intended for the claimants.
    5. Same — Nature oe Lien — Statute.—A mechanics’ lien is statutory, and not contractual, and a lien cannot be acquired unless the claimant complies with the statutory -provisions.
    6. Same — Statement oe Lien — Sueeiciency.—Revised Statutes 1898, section 1386, prescribes the acts necessary to be done to acquire a lien, and provides that the claimant shall make a statement of his demand after deducting credits and offsets. Section 1387 provides that liens against two or more buildings may be included in one claim, provided the claim designates the amount claimed to be due on each building. Held, that a. statement for a. lien for materials furnished for the erection of two buildings on one parcel of land, which sets forth the whole amount due, is sufficient to create a lien, though it does not set forth the amount claimed to be due for materials furnished on each building, for the statement of the amount claimed, as required by section 1386, is to acquire a lien, while the statement required by section' 1387 is for the purpose of enabling the court to protect the interests of the lien claimants among themselves.
    7. Same. — Comp. Laws 1888, section 3812, provides that where one claim is filed against two or more buildings, the claim must designate the amount due on each building, otherwise the lien is postponed to other liens, and “the lien of such claimant does not extend beyond the amount designated, as against other creditors having liens, by judgment, . ,. . upon either of such buildings . . . or upon tlie land upon which the same are situated.” Sess. Laws 1890, p. 24, c. 30, amending the lien law, omits section 3812. Sess. Laws 1894, p. 44, c. 41, amending the lien law, re-enacts the section as embodied in Revised Statutes 1898, section 1387, providing that liens against two or more buildings may be included in one claim, provided the claim designates the amount due on each building. Held, that while the quoted portion of the original section was in" force, the court was compelled to enforce the penalty where the statement required by the section was omitted, whether the equities required it or not, while under the section, as amended, the court is at liberty to enforce it or not, as equity demands in each particular case. ’
    8. Statutes — Mandatory Statutes — Construction.—The mere fact that a statute is mandatory in form does not necessarily make it so in its effect.
    9. Mechanics' Liens — Statement oe Lien — Sujttciency.—An owner ■ employed a contractor to build two houses on one parcel of land. The construction of the buildings was treated as an entirety. Held, that the statement of a lien setting forth the amount due, without stating the amount due on each building separately, was sufficient; for the two buildings were not separate buildings, within Revised Statutes 1898, section 1387, providing that liens against two or more buildings may be included in one claim, provided the claim designates the amount due on each building.
    10. Statutes — Construction.—Where a statute requires certain things to be done to acquire a right, there must be a substantial compliance with the statute; but, where a statute requires things to be done in case certain conditions exist, the statute is not operative, unless the conditions are present.
    Appeal from District Court, Weber County; J. A. Howell, Judge.
    
      Action by the Eedes Lumber. Company against Ann IL Martin, executrix of J ames E. Horrocks, deceased, and others. Erom a judgment of dismissal, plaintiff appeals.
    REVERSED AND REMANDED.
    
      T. D. Sheen for appellant.
    
      T. N. Kimball for respondents.
    appellant’s points.
    The authorities are almost uniform in holding that where work is done or material furnished in the ¡erection of two. or more houses under an entire contract upon one lot or parcel of land owned by one person. A single lien attaches upon the whole estate for the whole amount claimed and no apportionment is necessary. (Wall v. Robinson, 115 Mass. 429; Lyon v. Logan, 68 Texas 521; Chadbourn v. Building Assn., 71 N. 0. 448; Mansion v. Kenyon, 44 Conn. 350; Batchelder v. Rcmd, 1 17 Mass. 176; Paine v. Bonney, 4 E. DL Smith 750; Phillips v. Gilbert, 101 TJ. S. 721; Morgan v. Chase, 52 N. Y. 346; Carpenter v. Leonard, 5 Minn. 119; Orr v. Insurance Co., 86 Ill. '260; Hall v. Sheehan, 69 N. Y. 618; Bride Co. v. Spilman, 76 Md. 337; Williamette Co*, v. Shea, 32 Pac. 759; Lax v. Peterson, 42 Minn. 221; Lumber Co-. v. Newton, 72 Iowa 90; Doolittle v. Plenz, 16 Neb. 123, 20 N. TV. 116; Fullerton v. Leonard [S. D'.]J 52 N. TV. 325; 2 Jones on Liens, sec. 1313; Wilcox v. Woodruff, 17 L. R. A. 314, 316; Quinby v. Durgin, 148 Mass. 104; Carr v. Hooper [Kan.], 29 Pac. 398; Bride Co. v. Dunlcerly, 85 Md. 199, 36 Atl. 761; Worthley v. Emerson, 116 Masé. 374; Williams v. Judd-Well Co. [Ia.], 59 N. TV. 271; Sash & Door-Go. v. Case [Neb.], 60 N. TV. 576; Lehmer v. Horton. [Neb.], 93 N. TV. 964; Badger Lumber Co. v. Holmes [Neb.], 62 N. TV. 446.)
    
      
       Morrison, Merrill & Co. v. Clark, 20 Utah 432, 59 Pac. 235 77 Am. St. Rep, 924; Sanford v. Kunkel, 30 Utah 379, 85 Pac. 363.
    
   FRICK, J.

This action was commenced to foreclose a mechanic’s lien; judgment of dismissal being entered upon a demurrer to the complaint. With the hope of assisting to a better understanding of the views hereinafter expressed, we will, in our own way, make a somewhat extended statement of the facts contained in the complaint, which, after stating the corporate existence of the appellant, is, in substance, as follows:

That James E. Horrooks, during his lifetime, and at all times mentioned in the complaint, was the owner in fee of certain real estate in Ogden City, Utah, described as follows: Part of lot twenty-seven (27), block four (4), of South Ogden survey addition to O'gden City, Weber county, Utah, to wit, beginning at the northwest comer of said lot twenty-seven (27); thence east 162 feet; thence south 132 feet; thence west 30 feet; thence north 66 feet, thence west 132 feet; thence north 66 feet to the place of beginning. That on or about the 1st day of September, 1904, said Horrooks entered into a written contract with respondent Peterson, whereby said Peterson agreed to build for said Horrooks two frame dwelling houses upon the real estate above described, and to furnish and provide all of the lumber, building material, and labor necessary to complete said houses, and to> complete the same on or before the 1st day of November, 1904, all for the sum of $2,750, to be paid by said Horrocks to said Peterson; payment to be made- in installments- as the work on said houses progressed, and the last payment of $500 was to be made when said houses were fully completed. That thereafter, on the 6th day of September, 1904, said i’eterson, by a written contract, sublet the construction of said houses, together with the furnishing of certain specified material, to- the respondent Ered. Howard. Said Howard agreed to complete said houses within thirty-six working days from said date, and to receive the sum of $1,575 for what he agreed to do, payments to be made from, time to time, the last payment of $775 to be made when said houses were completed. That thereafter,'on the 19th day of September, 1904, said Howard entered into, a contract with appellant, whereby appellant agreed to furnish said Howard with lumber and other specified material necessary to complete said houses. That in pur-suanc© of said agreement, and with the assent and approval of said Peterson, the original contractor, and said ITorrocks, the owner of the premises above described, appellant, between the 19th day of September and the 25th day of October, 1904, sold, furnished, and delivered said building material to said Howard upon said premises to' be and which was actually used in the construction of said houses, amounting in all, according to the prices agreed upon, and after deducting all credits, to the sum of $710.48. That said contracts were entire, and appellant is unable to state the amount due or the sum paid on each of said houses separately. That the appellant furnished all the lumber and building material required to complete said houses. That the same -was to be paid for on the 1st day of the month succeeding the date of delivery. That no payments were made for the construction work of said houses before the first material was actually furnished by the appellant, except the sum of $600. That within forty days from the date of delivery of the last material, the appellant filed with the county recorder of Weber county, and caused to be recorded, a notice of intention to claim, and did claim, a mechanic’s lien upon the real estate above described. The notice so filed and recorded was duly verified, and in detail complied with the requirements of section 1386, Revised Statutes 1898, all of which is stated in the complaint. That said Horroclcs died on the 20th day of March, 1905, leaving a last will, wherein the respondent Ann H. Martin was named as executrix, which will was thereafter on the 29th day of June, 1905, duly admitted to probate, and that letters testamentary were duly issued to said Ann H. Martin, and that she is the duly qualified executrix of the last will of said James E. Horrocks, deceased. That the appellant duly presented its claim for the amount claimed, with interest and costs, to said executrix for allowance against said estate. That the same was disallowed and rejected by her, and she refuses to pay the same or any part thereof. A copy of the notice of intention to claim a lien is attached to> said complaint, and made a paid thereof. The notice sets forth in detail all matters required by section 1386, Revised Statutes 1898, but fails to state the amount due to the claimant on each building separately.

Upon substantially the -foregoing facts, the appellant prayed judgment for the amount of its claim, to foreclose, said lien, for the sale of the property, and for general relief. To this complaint the respondent' Ann H. Martin, as executrix of the said last will, interposed a general demurrer upon the sole ground that said complaint does not state facts sufficient to constitute a cause of action either against her or the estate of the deceased and that the facts, stated are insufficient to entitle appellant to the relief prayed for. The trial court sustained this demurrer, and the appellant, refusing to further amend the complaint, but electing to stand thereon, judgment dismissing the action and for costs was directed to be rendered against the appellant, from which judgment this appeal is prosecuted.

The only question presented by this record therefore is, did the court err in sustaining said demurrer and in entering judgment dismissing the action as above stated? The trial court held that the notice of intention to claim a lien was- insufficient, for the reason that the amount due on each one of the two- houses was not separately stated,- and that therefore there was no lien, and hence the judgment dismissing the action. In order to determine the correctness of the court’s ruling, it becomes necessary to analyze and construe sections 13 8 6 and 1381, c. 1, 39, Revised Statutes 1898, entitled “Mechanics’ Liens.” This chapter is composed of 28 sections consecutively numbered from 1373 to 1400. In those sections is contained an entire system or scheme respecting the creation of mechanics’ liens in favor of persons who- furnish any material, or perform any labor, or render any skill or service for any improvements on land. By the .various amendments to the original law from time to' time, and as the same has been construed by this and other courts under similar statutes, a, mechanic’s lien attaches to- the land, and, unless the person against whom the claim for a mechanic’s lien is made has some interest or estate in the land upon which the improvement is made, no lien attaches to the improvement as such; further, that a contract express or implied must have been made with the owner of the land or his authorized agent in order to successfully initiate a lien. (Morrison, Merril & Co. v. Clark, 20 Utah 432, 59 Pac. 235, 77 Am. St. Rep. 924; Early v. Burt, 68 Iowa 716, 28 N. W. 35; Huff v. Jolly, 41 Kan. 537, 21 Pac. 646; Fetter v. Wilson, 51 Ky. 90; Wagar v. Briscoe, 38 Mich. 587-595.) The case of Sanford v. Kunkel, 30 Utah 379, 85 Pac. 363, in no way departs from the doctrine that in order to acquire a lien an interest in the real estate upon which the improvements are made is necessary. That case is based upon the sound equitable doctrine that where the law has given a right to one person it eamiot be destroyed by the wrongful act of another.

Having thus reached the conclusion that under our present statute a mechanic’s lien can only be acquired on land, and that the buildings or improvements are to be taken as appurtenant merely, we will proceed to an examination of our statutes to determine whether the lien in question is void or ■valid. Section 1386, in which are contained the matters which must be stated in a notice of intention to claim a lien, reads as follows:

“Every original contractor, -within sixty days after the completion of his contract, and every person save the original contractor claiming the benefit of this chapter, must, within forty days after furnishing the last material or performing the last labor for any building, improvement, or structure, or for any alteration, addition to, or repair thereof, or performance of any labor in or furnishing any materials for any mining claim, file for record with the county recorder of the county in which the property or some part thereof is situated, a claim in writing containing a notice of intention to hold and claim a lien, and a statement of his demand, after deducting all just credits and offsets, with the name of the owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the material, with a statement of the terms, time given, and conditions of his contract, specifying the time when th,e first and last labor was performed, or the first and last material furnished, and also a description of the property to be charged with the lien, sufficient fdr identification, which claim must be verified by the oath of himself or of some other person.”

This is followed by section 1387, which is as follows:

“Liens against two or more buildings, mining claims, or other ixn-provements owned by the same person or persons may be included in one claim; but in such case the person filing the claim must designate therein the amount claimed to be due to him on each of such buildings, mining claims, or other improvements.”

These sections must be construed in connection with each other, and the two together must be construed in connection with other provisions contained in the whole of chapter 1 aforesaid. In order to arrive at the true legislative intent, courts cannot segregate a section or a part of an entire chapter upon a given subject, and from such part alone determine the true meaning or intent of the whole. Moreover, the object or purpose of the law as a whole must be considered. It often occurs that, in a series of sections relating to one subject,, provisions are found in one or more sections that are in seeming conflict with other sections or parts of the- same act. It also occurs that in an act like chapter 1, aforesaid, where rights are created, the methods to secure them are prescribed, and the procedure provided for to- enforce such rights as against the property, the owner, and among other claimants, certain provisions may be intended to- affect some and not others. Some of these provisions may be, and frequently are, intended for the benefit of some who- may stand in a particular relation, and not to others standing in a different relation to either the ownfer or the property. This is the case with respect to our mechanic’s- lien law, as we shall attempt to show. Moreover, as'is well stated in Boisot on Mechanics’ Liens, section 4:

“The doctrine upon which the lien is founded is the consideration • of natural justice, that a party who has enhanced the value of property by incorporating therein his labor or materials shall have a preferred claim on such property for the value of his labor or materials.”

BHrt the respondent contends, and the contention is sound, that a mechanic’s lien is purely statutory, not contractual, and none can be acquired unless the claimant has complied with the several provisions of the statute creating the lien. We yield full assent to this doctrine, and likewise assent that, where the statute fails, courts cannot create rights, and should not do so by unnatural and forced construction. But, while all this is sound doctrine, courts should not withhold the benefits intended by a series of sections on one subject by a too literal or strict construction of one section, or part -of the whole series, so as to destroy intended effects of other parts.

It is the true intent and spirit contained in all the sections upon a given subject that constitutes the law upon that subject, not what may be contained .in only one of them. The rule that in our judgment should govern, is, we think, correctly stated in 20 Am. & Eng. Ency. Law, on page 276, where the author says:

“A lien once acquired by labor performed on a building with the consent of the owner should not, however, be defeated by technicalities, when no rights of others are infringed, and no express command of the statute is disregarded.”

With these rules and principles in mind, we are prepared to proceed to an analysis of sections 1386 and 1387. Such an analysis becomes necessary, for the reason that this court has in no case that we are aware of, either done so or attempted to do so. True, the question was raised in the case of Garner v. Van Patten, 20 Utah 342, 58 Pac. 684, but, as the court in that case sustained the lien, although, as appears from the case, the claimant had not strictly complied with the provisions of section 1387, the question here presented, if decided at all, was adverse to the. respondent in this case. The question in this case is, can a claimant obtain a valid lien as against an owner of property upon which the lien is claimed without including the statement required by section 1387 ? We think he can, for the following reasons.:

It will be observed that by the provisions of section 1386, wherein are prescribed the necessary acts to be done by the claimant to acquire a lien, it is provided among other things that the claimant shall make “a statement of his demand after deducting all just credits and offsets.” The owner is thus fairly informed of the amount claimed against his property. If the amount is correct, he will have this amount to pay — no more, no less — to discharge the lien. If it is incorrect, he is fully apprised of the fact, and can make bis defense. He therefore is not concerned in case the lien is claimed on more than one building erected upon one parcel of land, what amount is due on one or the other of the buildings. The lien is an entirety against the whole parcel of land and the improvements appurtenant thereto. As we read the mechanic’s lien law, it was- not intended that the provisions contained in section 138Y were intended 'either as an essential in acquiring a lien, or made for the benefit of the owner. The lien is complete by complying with section 1386. The statement of the amount due on buildings separately, as provided in section 138Y, would be but a restatement of the amount of the claim as required by section 1386, in another form. .As we view it, this restatement was not intended as an essential part in acquiring the lien. It could subserve no purpose to attain that end. It could in no way affect the amount claimed against the entire property. It, however, subserves a purpose in respect to different lien ' claimants claiming liens against several houses or improvements erected on different parcels of land included in one lien. To determine the equities as -between lien claimants- of the same class where the law requires them to prorate, it is important to determine the exact amount due to- each claimant upon each of the several buildings or improvements erected on different parcels of land in order to prevent one from getting more than his share in case the proceeds of a sale of the property are insufficient to satisfy all the claimants in full. This, however, does not -affect nor concern the owner of the property, nor does it affect the validity of the lien as such, as against him or the property. But it is argued that effect must be given to all the requirements of the statute respecting the things to be done to acquire a lien. This is true, but, as we have attempted to show, a discrimination must be made between the things that are necessary to acquire a lien and those that are merely intended to protect the interests of the lien claimants between or among themselves. The statements in section 13 8 Y, as we view it, clearly belong to the latter class.. The statements of the claimant provided for in section 1386 are made sufficient to acquire a lien and to protect the owner of tbe property. To bold that a restatement of tbe amount of tbe claim in another form is likewise necessary to acquire a lien, unless, tbe statute requires this to be done in terms, is adding, by construction, an essential not required by tbe statute. The construction we place upon tbe sections quoted gives the language contained therein full force and effect. • Tbe statement required in section 1386 of tbe amount claimed is thus to acquire a lien, and tbe statement in section 1387 is for tbe purpose above indicated.

But it is further argued — and the argument at first blush seems plausible — -that while tbe effect of the two section construed together was, as we claim it to be, as originally enacted, such is nót tbe case now, because section 1387 has been amended, and thereby its effect changed. Tbe section corresponding to the present section 1387 is found in 2 Oomp. Taws, 1888, and is there designated as section 3812, and reads, as follows:

“In every case in which one claim is filed against two or more buildings, mining claims, or other improvements owned by the same person, the person filing such claim must at the same time designate the amount due him on each of such buildings, mining claims or other improvements, otherwise the Ken of such claims is postponed to other Mens. The lien of such claimant does not extend beyond the amount designated, ads. against other creditors having Hens, by judgment, mortgage, or other-?ci'se, upon either of such buildings or other improvements, or upon the land upon which the same are situated.”

The law was recast and amended in 1890 (chapter 30, p*. 24, Sess. Taws 1890), wherein section 3812 is omitted. It was again amended in 1894 (Sess. Laws 1894, p. 44, c. 41), where it was re-enacted in its present form. It is conceded, in fact nó* one can dispute on reasonable grounds, that, with the italicized portion added, the failure to state the amount due on each of several buildings or improvements could not invalidate the lien as against the. property or the owner thereof, but its effect would only be to postpone the lien to others in the same class. The logic of this admission is a concession that the statement of the amount due on each building separately, as required by section 138.7, was not an essential part of the lien as such. It is urged that, since the Legislature eliminated the provision of what the effect should he in case of a failure to make the statement required in said section 1381, it was thereby intended to make the statement an essential part of the lien itself. We cannot yield assent to this deduction. ■ If the Legislature intended that a failure to' malm such a statement should invalidate the lien theretofore valid without it, we think it would have said so in plain terms. We think that the amendment should not, by mere construction, be given that effect unless no other construction is reasonable. It frequently occurs that statutes are enacted declaratory of some rule of law or equity. Our own statutes teem with such instances. The mere fact, therefore, that it is enacted into a statute does.not create the right or remedy, as the case may he. Both would exist without the statute. The statute in such cases merely states the right without having recourse to the original rule. The fact, therefore, of the omission of the equitable rule contained in the italicized portion of the original section of which section 1387 is an amendment in our judgment would not effect the court in working out equity between lien claimants. The purpose of the omitted portion was to fix the penalty for the failure to state separately the amount due on each building. Is it reasonable to suppose that the Legislature, by removing the mild penalty, thereby intended to create a far more drastic one without saying so in terms ? We do not think so. We think the effect, of an omission to state the amount claimed on each building with and without the omitted portion of the section above quoted amounts to this: While that portion of the original section was in force, the courts were compelled to enforce the penalty in every case where' the statement required by section 1387 was omitted, whether the equities required it or not, while, under the present form of that section, the court is at liberty to enforce it or not as justice and equity demand in each particular case. The mere fact that section 1387 is mandatory in form does not necessarily make it so in its effects. It is an elementary rule of construction that the mere form of the statute does not control in tbis respect. (Sutherland on Stat. Const., sections 446, 447.)

In view of the somewhat singular conditions arising by both the terms as well as the conditions of our mechanic’s lien law, in view of the amendments and changes and omissions therein, we have been unable to find authorities directly in point upon the matters discussed herein. The following cases, however, in some degree at least, support all the views herein expressed. These decisions are based upon statutes similar in many respects to our own: Williamette Co. v. Shea (Or.), 32 Pac. 759; Lyon v. Logan, 68 Tex. 521, 5 S. W. 72, 2 Am. St. Rep. 511; Phillips v. Gilbert, 101 U. S. 725, 25 L. Ed. 833; Wall v. Robinson, 115 Mass. 429; Lax v. Peterson, 42 Minn. 221, 44 N. W. 3; Wheeler v. Ralph (Wash.), 30 Pac. 709.) There are cases which hold that provisions substantially like those contained in section 1387 are essentials in acquiring a lien. Whether such provisions are part of the section wherein are contained the essentials to acquire a lien or not, we cannot determine without recourse' to the statute creating the lien, and, not having access to them, we cannot examine them. It is manifest, however, that the courts that have so held have construed the mechanic’s lien law with undue strictness. (Wilcox v. Woodruff, 61 Conn. 578, 24 Atl. 521, 1056, 17 L. R. A. 314, 29 Am. St. Rep. 222, is a fair type of the cases holding adversely to the views that we entertain. In that case, however, there are two able dissenting opinions which, to our minds, state the rule of construction respecting mechanic’s lien statutes correctly. The cases of Crawford v. Anderson, 129 Ind. 117, 28 N. E. 314, Culver v. Elwell, 73 Ill. 536, and some others, perhaps, are of the same class. None of these cases, however, in our judgment, reflect the true spirit of our mechanic’s lien law, and therefore we decline to follow them. But there is room for contention that the demurrer was erroneously sustained upon another ground. As appears from the complaint, the contracts, and from the description of the property, the whole matter was treated as an entirety by all parties in interest. 'This being so, the two buildings were not, within the purview of our statutes, to be treated as separate buildings. Tbis. for the reason tbat all liens of any class would prorate upon the whole, regardless as to- whether the labor was performed on one or the other of the buildings, or the material was used in the one or the othei\ The very purpose of section 13 S'! being thus- eliminated from the claim in this case, a noncompliance with it cannot affect any rights. This statement must, of necessity, be taken in the light of our construction of the several section» of our lien law and their effect in relation to each other as explained in this opinion. We desire to affirm again that, where a statute requires certain things to be done to acquire a right, nothing short of a substantial compliance with the statute will answer; but where a statute requires things to be done in case certain conditions exist, then, before the statute can be operative, it must appear that the conditions are in fact present. If we are right, therefore, that in this case the lien and the buildings are to be treated as an entirety, then the conditions provided for in section 1387 did not -exist and the section is not applicable. These views, as we think, are sustained by the following California and other cases, which are based on statutes very similar to our own: Booth v. Pendola, 88 Cal. 36, 23 Pac. 200, 25 Pac. 1101; Warren v. Hopkins, 110 Cal. 506, 42 Pac. 986; Post v. Fleming [N. M.], 62 Pac. 1087; Idaho M. & M. Co. v. Davis, 123 Fed. 396, 59 C. C. A. 200.

The judgment is therefore reversed, and the cause remanded with instructions to the district court to vacate the judgment, reinstate- the case, overrule the demurrer, and permit the respondent to answer if she is so advised, and proceed with the case- in accordance with this opinion. Costs o-f this appeal to be taxed against respondent.

McCAETY, O. J., and S-TBAUP, J., concur.  