the petitioner sued out this writ, which upon the hearing was dismissed, and defendant appeals.

AFFIRMED.

For appellant there was a brief and an oral argument by Mr. F. H. Mills.

For respondent there was a brief and an oral argument by Mr. J. C. Rutenic.

Opinion by MR. CHIEF JUSTICE MCBRIDE.

1, 2. There is nothing in the record here to indicate that the appeal which petitioner initiated in the criminal proceeding was ever perfected. If it were, he could not review the proceeding while the appeal was pending. While review and appeal are concurrent remedies, a party cannot exercise both at the same time: Forbis v. Inman, 23 Or. 68 (31 Pac. 204); Feller v. Feller, 40 Or. 73 (66 Pac. 468); McAnish v. Grant, 44 Or. 57 (74 Pac. 396). If the appeal were pending, review would not lie. If no appeal were pending, the court had a right to vacate its judgment if void; the rule being that while a Justice's Court cannot set aside a judgment because it is erroneous, it may vacate a void judgment and proceed as though no such apparent judgment had ever been entered: Chapman v. Floyd, 68 Ga. 455; Gates v. Lane, 49 Cal. 269.

3. Viewing the case in this light it is unnecessary to consider the other matters discussed in the briefs. As the case stands this proceeding is an attempt to review a judgment which had been already vacated by the court which pronounced it and the case is in the same position as though no judgment had been rendered. Whether the delay of the court in bringing the defendant to trial operated as a discontinu

ance of the case is not before us, and as the alleged offense is one which the present prohibitive law renders impossible of recurrence, it is hardly probable that the authorities of the city will attempt at this late date to continue the prosecution.

The judgment of the Circuit Court is affirmed.

AFFIRMED.

MR. JUSTICE MOORE, MR. JUSTICE BEAN and MR. JUSTICE MCCAMANT Concur.

Argued January 30, reversed February 20, 1917.

WILSON v. GEVURTZ.*

(163 Pac. 86.)

Mechanics' Liens-Agreement of Owner-Tenant Agreeing to Make Repairs.

1. Under Section 7416, L. O. L., as to mechanics' liens, making every person having charge of the repair, etc., of a building the agent of the owner for the purpose of the act, the estate of a lessor is not subject to a lien for labor contracted for by his lessee who has covenanted to make all necessary repairs at his own expense.

Mechanics' Liens-Agreement of Owner-Implied Consent-Improvement by Lessor-Posted Notice of Nonresponsibility.

2. Under Section 7419, L. O. L., providing that the interest of an owner shall be subject to liens for work done with his knowledge, unless within three days after obtaining such knowledge he posts in a conspicuous place a notice that he will not be responsible, an owner's interest is not subject to such lien because of constructive notice to him from the fact that his tenant's lease obligated the tenant to make repairs, where prior to and during the time of such repair work for the tenant the owner keeps posted in a conspicuous place on the building a notice that he will not be responsible for any work done on the building under instructions from anyone but himself.

[As to mechanics' liens on realty for improvements made with the consent, but not at the expense, of the owner, see note in Ann. Cas. 1916C, 1133.]

*On power of lessee or vendee to subject owner's interest to mechanics' liens, see note in 23 L. R. A. (N. S.) 601. REPORTER.

From Multnomah: GEORGE N. DAVIS, Judge.

Department 2. Statement by MR. JUSTICE MCCAMANT.

This suit is brought by Thomas J. Wilson against Phil Gevurtz, M. Pallay, B. Pallay and Wm. Druck to foreclose a mechanic's lien on the Highland Court Apartments, situate on the northeast corner of Twentysecond and Glisan Streets, in the City of Portland. The decree adjudged a lien on the premises of defendants, M. Pallay and B. Pallay, the owners of the property. REVERSED. SUIT DISMISSED.

For appellants there was a brief and an oral argument by Mr. Thomas Mannix.

For respondent there was a brief over the name of Messrs. Lewis & Lewis, with an oral argument by Mr. Arthur H. Lewis.

MR. JUSTICE MCCAMANT delivered the opinion of the court.

It appears from the pleadings and the testimony in the case that during the months of June and July, 1914, plaintiff did some plastering, kalsomining and painting on the interior walls of the Highland Court Apartments; the work was done under employment by Philip Gevurtz, the lessee in possession of the property. Appellants are the owners of the property, and it is not contended that plaintiff had any contract with them. The lease under which Gevurtz was in possession of the property contained the following provision:

"The said lessee shall at his own cost and expense keep the interior of the said premises in proper repair and tenantable order during all of the term of this

lease, including the doors and windows thereof, and · the fixtures therein and all the interior walls, plumbing, pipes, wiring, telephones and elevators as may become necessary, except such repairs and alterations that shall result from or on account of the structural defects in said building or from the ordinary wear and tear thereof, or damages by fire or the elements, or acts of God."

Section 7416 of Lord's Oregon Laws provides in part as follows:

"Every mechanic,

contractor, laborer, and other person performing labor upon or furnishing material ** to be used in the construction, alteration, or repair of any building, * shall have a lien upon the same for the work done or material furnished at the instance of the owner of the building

*

or his agent; and every contractor, subcontractor, architect, builder, or other person having charge of the construction, alteration, or repair, in whole or in any part, of any building or other improvement as aforesaid, shall be held to be the agent of the owner for the purposes of this act."

1. The first question arising on this record is whether the work done by plaintiff was work done at the instance of the owner of the building or his agent. In other words, did appellants by the lease which they executed with Gevurtz make Gevurtz their agent for the purpose of keeping the demised premises in proper repair? Plaintiff relies on Oregon Lumber Co. v. Nolan, 75 Or. 69 (143 Pac. 935, 146 Pac. 474). In that case it was held that when the owner of unimproved property leases it to a tenant under a contract for the construction of a building on the premises, the owner makes the tenant a contractor for the construction of the building and the interest of the owner can be subjected to mechanics' liens growing out of such construction. In the interpretation of the Alaska stat

ute, which is identical with ours, the United States Circuit Court of Appeals has reached the same conclusion: Arctic Lumber Co. v. Borden, 211 Fed. 50 (127 C. C. A. 486). In both of these cases the contract required the erection of a particular building at the inception of the tenancy. In such a case the work done is at the instance of the owner. The position of the tenant is not to be distinguished from that of a contractor for the construction of a building. Myers v. Strowbridge Estate, 82 Or. 29 (160 Pac. 135), is the same kind of a case. The lease in that case required the tenant to make extensive repairs, equivalent to a reconstruction of the building on the premises. The work was to be done at the inception of the tenancy and pursuant to plans which the lessor should approve.

In the above cases it was properly held that the interest of the lessor was subject to mechanics' liens arising out of the work, for the work in each case was done at his instance. In each of the foregoing cases the work to be done was defined by an agreement to which the owner was a party and the work was to be done presently.

We think the principle cannot be reasonably extended to cover the case at bar. The lease in this case was for a period of ten years. The repairs which the lessee was obligated to make are not specified in the lease. They are defined only by the indefinite language quoted above. Counsel for plaintiff has been able to find no authority for this branch of his contention. He cites the case of Gould v. Wise, 18 Nev. 253, 259 (3 Pac. 30, 31). This case is interesting in view of the practical identity of the Nevada statute with our statute. The lease involved in the Nevada case was a lease for two years. It obligated the ten