In Murray v. Purdy, 66 Mo. 606, it was ruled that an approval of an administrator's sale when made at a term prior to that prescribed by law was not void but voidable only, criticising earlier decisions of that court to the contrary. In Sims v. Gray, 66 Mo. 613, it was held that an administrator's deed was not void by reason of the fact that the sale was reported to and approved by the court at the same term at which it was made instead of at a subsequent term as required by law. In deciding that case Mr. Justice HOUGH remarks:

"When the petition for the sale of the real estate was filed and publication was made, notifying all persons interested in the estate that, on a day named, an order for the sale thereof would be made, unless cause to the contrary should be shown, the heirs were in court; and no other or further notice was required, by law, to be given to them of any subsequent proceedings in the case. The court was a court of record, having complete jurisdiction of the subject-matter of the proceeding, and while such jurisdiction must be exercised according to law, yet if the court exceeds its powers under the law, and disregards the statutory requirements established for its guidance, its acts may be irregular or erroneous, but they will not be void. Johnson v. Beazley, 65 Mo. 250 [27 Am. Rep. 276]. A judgment rendered after notice, but sooner than it should have been rendered according to the rules of law, or the practice of the court, is simply an irregular judgment and may be set aside on motion, in any court of record, at a subsequent term."

To the same effect see also Wilkerson v. Allen, 67 Mo. 502; Snyder v. Markel, 8 Watts (Pa.), 416. In Woodward v. Baker, 10 Or. 491, it will be remembered the premature judgment there rendered was based upon the personal service of a summons and a complaint. In Moore Realty Co. v. Carr, 61 Or. 34, 39

88 Or.-25

(120 Pac. 742, 744), it was determined, however, that a defect in the service of a summons by publication did not render the judgment founded thereon void. In deciding that case Mr. Chief Justice EAKIN, speaking for the court, says:

"The rule seems to be that, if there is actually some notice to the defendant, it is sufficient on a collateral attack, and the irregularity or defect in the service or lack of compliance with the statute does not render the judgment void, but merely voidable."

The rule thus stated is abundantly sustained by authority: Clay v. Bilby, 1 Ann. Cas. 917. In a note to that case at page 923 it is said:

"The same principles are applicable in cases where the service is by publication. If there is actually some notice, an irregularity in the publication does not necessarily render the judgment void and cannot be taken advantage of collaterally"-citing many

cases.

15, 16. When a defendant in a civil action is personally served with a summons and a complaint whereby he is notified to appear and answer at a time and place specified, if a judgment be prematurely rendered against him, he can have the irregularity corrected by appearing on the return day and interposing a motion for that purpose. If he do not thus move in the matter and offer no valid excuse for his delay, it should be taken for granted that he had no sufficient defense and for that reason is justly bound by the final determination which though voidable cannot be collaterally assailed. So too when complete service by publication is made of process, and before the return day thus specified the relief sought is granted, the party affected thereby may at any time within a year from the entry of the judgment, when rendered

upon such service, be allowed to defend on such terms as may be just: Section 59, L. O. L. If he do not within the time thus limited move to set aside such irregular judgment, it should be treated as voidable only and not vulnerable to collateral attack. In the case of service of process by publication if the party to be affected thereby never receives the notice designed to be imparted, he cannot be expected to appear at the place designated on the specified return day; but as the statute allows him a year after the entry of the judgment in which to apply for leave to defend the suit or action, and grants to the party who is personally served only the day appointed, such difference in time should be treated as ample compensation for the dissimilarity in the mode of service. With an exercise by counsel for a moving party of all the care that can reasonably be bestowed, it frequently happens that the parties intended to be affected by the service of process by publication never obtain any knowledge thereof until more than a year after the judgment or decree has been rendered against them, and then too late to apply for leave to set the final determination aside and to interpose a defense. Notwithstanding such possible results the court secures jurisdiction of the person by the publication of the process for the prescribed period, and because the judgment may be rendered against the party after such service is completed but prior to the return day, which extension is allowed by law and intended to be sufficient to enable the party so served to make the journey by ordinary means of travel from his residence to the place of trial at the appointed time, the final determination so rendered in the case supposed ought not to be regarded as void, but voidable only. In such case if the party intended to be served by publication of the pro

cess had no knowledge thereof, he could not have appeared at the time and place designated; and this being so the premature rendition of the judgment could not have seriously prejudiced him.

17. It is not charged that the administrator was guilty of fraud in the publication of the citation, or that he did not exhaust every reasonable source of information to ascertain the residence of the decedent's daughter and son so as to mail to them copies of the citation. Under such circumstances, though the order of the County Court licensing the sale of the land to pay the debts of the estate was prematurely granted, such final determination is not void, but voidable only; and this being so its validity cannot be collaterally challenged.

The deduction thus made renders it unnecessary to consider any other question involved. The decree is, therefore, in all respects reversed and the suit dismissed, a conclusion which would have been reached at the former trial if the argument last adduced had then been made.

FORMER OPINION AND DECREE BELOW REVERSED. SUIT DISMISSED. APPROVED ON SECOND REHEARING.

Opinion on First Rehearing Approved.

SECOND PETITION FOR REHEARING.

(163 Pac. 983.)

On second petition for rehearing, the opinion on first rehearing, reversing former opinion and the decree of the court below approved.

Mr. Harry G. Hoy, for the petition.

Mr. Guy C. H. Corliss, contra.

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

18. It is contended in a petition for rehearing that in reversing the decree herein errors were committed: (1) In holding this suit to be a collateral attack; (2) in concluding a County Court while transacting probate business is a tribunal of general and superior jurisdiction; and (3) in determining the citation issued by that court was valid. This suit was brought to quiet the title to real property, which right of ownership and possession was alleged to have been disturbed by the execution of an administrator's deed. It is argued by plaintiff's counsel that though bills of review have been abolished in Oregon (Section 390, L. O. L.), the form only of the procedure has been changed, while the relief anciently granted by a suit to review, correct, or reverse a decree remains; and this being so this suit is a direct attack to impeach and set aside an order of the County Court whereby it attempted illegally to deprive the plaintiffs of their land. That a suit in equity may be maintained in this state to set aside the final judicial determination reached in another cause is settled by repeated adjudications: Crews v. Richards, 14 Or. 442 (13 Pac. 67); Friese v. Hummel, 26 Or. 145 (37 Pac. 458, 46 Am. St. Rep. 610); Campbell v. Snyder, 27 Or. 249 (41 Pac. 659); Nessley v. Ladd, 30 Or. 564 (48 Pac. 420); Hilts v. Ladd, 35 Or. 237 (58 Pac. 32); McLeod v. Lloyd, 45 Or. 67 (75 Pac. 702); Smith v. Nelson, 46 Or. 1 (78 Pac. 740); Livesley v. Johnson, 48 Or. 40 (84 Pac. 1044). Such suit, however, is not necessarily a direct attack, though it was so held in Heatherly v. Hadley, 4 Or. 1.