"The judgment of every court pronounced on a subject within its jurisdiction is conclusive and binding on all other courts, except those only before which it comes by appeal, certiorari, or writ of error."

Other prior decisions to the same effect are there cited. In Metzger's Est., 242 Pa. 69, page 79, 88 Atl. 915, page 918, we said:

"It is the settled law of this state that in the absence of fraud or collusion a judgment or decree of a court of competent jurisdiction, valid and regular on its face, in force and unreversed, cannot be impeached by the parties or privies thereto or by a stranger in a collateral pro

ceeding in the same or another court."

Aside from this principle, our examination of the petition of Mrs. Browarsky, as recorded in the office of the recorder of deeds, leads us to the conclusion that the auditing judge was mistaken in his view that it did not set forth the facts necessary to give the court jurisdiction to declare the petitioner a feme sole trader, and to grant her a certificate as such. There is some discussion in the opinion of the auditing judge and in the argument of counsel as to whether the copy of the record from the recorder's office was admissible in evidence; the original papers being lost and the docket entries incomplete. But counsel for appellee put the record in evidence, and counsel for appellant now concede that it was properly admitted. Further discussion of that point is therefore unnecessary.

[5, 6] In section 2 of the act of 1855 it is provided that when a husband

"from drunkenness, profligacy or other cause, shall neglect or refuse to provide for his wife, or shall desert her, she shall have all the rights and privileges secured to a feme sole trader."

And in section 4, provision is made for the filing by a married woman of a petition, setting forth the facts which authorize her to act, which being sustained by the testimony of at least two respectable witnesses, and the court being satisfied of the justice and propriety of the application, it may make a decree and grant her a certificate. It is not necessary that desertion should be averred, as neglect or refusal to provide for the wife is sufficient to authorize a decree. See Orrell

er's husband had been indulging to excess in the use of intoxicating liquors, so as to unfit himself to conduct business, and that on ac count of the use of liquor to excess, his mind had become impaired, and he was suffering from softening of the brain, and that, owing to his bad habits, he had become involved in trouble with different persons, as a result of which he was undergoing a sentence of a year and six months in the county jail. While the word "drunkenness" is not used in the petition, yet the positive effect of the use of liquor to excess is clearly averred. The essence of drunkenness lies in the excessive use of intoxicating liquors. It is also averred in the petition that, owing to excessive indulgence in liquor, the husband was unable to conduct his business for the support of his wife and family, and that he had no income whereby they could be supported, and that therefore she was"obliged, under the circumstances, to engage in business for the purpose of earning a support for herself and family."

It is not necessary to be sharply critical of the petition, and we are satisfied that the averments, which it contained, as to neglect or refusal of the husband to provide for his wife, were ample to sustain a finding to that effect, especially when taken in connection with the fact that the husband was, at the time, serving a sentence in the county jail. In addition there was attached to the petition the affidavit of three respectable witnesses that the petitioner's husband had been incapacitated from transacting business by the excessive use of intoxicating liquors; that he was serving a prison sentence; that he could in no way furnish his wife or family with a livelihood, and that they were informed that he had contributed nothing to their support since July 9, 1890, six months before the petition was filed. In view of the facts set forth, we do not understand why there should have been any difficulty in concluding that the averments in the petition were sufficient to give the court jurisdiction.

[7] In the opinion of the court in banc dismissing appellant's exceptions, it is said:

"Even if the regularity of the proceeding in the common pleas is assumed or cannot be collaterally attacked, the maintenance of the family relationship between the husband and wife after the date of the alleged decree shows that there was a reconciliation between them, which is sufficient to overcome the bar of feme sole certificate when regularly issued."

This ground for sustaining the surcharge of accountant with the value of decedent's right as tenant by the curtesy in his wife's estate does not seem to have been considered at the hearing before the auditing judge. The inference of a reconciliation was drawn by the court from the ages of two minor children, which indicate that the family relation must have existed after the wife was decreed

not, however, based upon an allegation of desertion, but upon the excessive use of liquor, amounting to drunkenness, and the consequent neglect of the wife and family, and failure to support. This did not necessarily prevent the continuance of the family relation. Drunken and worthless though the husband may have been, yet the wife was not, by reason of the decree, obliged to cut him off from all ministration. She could supply his needs, if she saw fit to do so, without imperiling her rights. There was no evidence that the husband ever provided for his wife and family, or even contributed to their support, after the certificate was granted. If he did live with his wife, after his release from prison, but failed to support or provide for her, this would in no way overcome the effect of the decree. It does not appear that he ever made any attempt, in the lifetime of his wife, to have the decree revoked in the proper court. In support of its view that the maintenance of the family relation between the husband and wife overcame the bar of the feme sole certificate, the court below cites and relies upon two cases: Flanagan's Est., 59 Pa. Super. Ct. 61, and Hellwig's Est., 59 Pa. Super. Ct. 233. In those cases, the decree was based both on the ground of failure to support, and of desertion. In Flanagan's Est., the wife had brought proceedings against her husband in the desertion court, where an order was made against him. There was also evidence showing"that he had, at the wife's invitation, subsequently become reconciled to her and had lived with and supported her some 16 months before her death and up and until a few days before

her death."

he were the owner to make a contract for which a claim can be filed without objecting thereto at the time.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 328-331; Dec. Dig. 189.]

2. MECHANICS' LIENS 193 PERSONS LIABLE-OWNER.

Where the owner of a house and lot made an agreement to sell it upon a small payment, the deed to be delivered, and the balance of the price paid five months later, and a contractor, with full knowledge of the relations between the seller and buyer, entered into an agreement with the buyer to provide the materials and perform the work of remodeling the building, but the buyer failed to pay the balance of the price, Act June 4, 1901 (P. L. 433) § 4, providing for a lien against the owner who shall permit another to make a contract as if he were owner, does not apply so as to create a lien against the seller.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. § 335; Dec. Dig. 193.] 3. MECHANICS' LIENS 281(1)-PERSONS LIABLE-CONSPIRACY-EVIDENCE.

On a scire facias surmechanic's lien by one who contracted with the purchaser of a house and lot against the seller on failure of the purchaser to complete his contract, evidence held insufficient to show a conspiracy between the seller and purchaser to defraud the contractor.

[Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 565-567; Dec. Dig. 281(1).]

4. MECHANICS' LIENS 120-PROCEEDINGS TO ENFORCE-SERVICE OF NOTICE.

Under Act June 4, 1901 (P. L. 441) § 21, requiring a mechanic's lien claimant to serve a notice on the owner of the filing of the claim within one month after such filing and to file an affidavit showing the manner of such service, acceptance of service by the attorney of the owner in lieu of actual service upon him is not sufficient to sustain the lien.

"found as a fact that a reconciliation took place, and that the husband lived with and supported his wife for some time prior to her death."

In the case at bar desertion was not alleged and, as we have already pointed out, there was no evidence that the husband supported his wife, at any time after she obtained her certificate as a feme sole trader.

Appeal from Court of Common Pleas, Allegheny County.

another.

Scire facias surmechanic's lien by Ed. ward O'Kane against James W. Murray and From a judgment for defendants, plaintiff appeals. Affirmed. Argued before MESTREZAT, POTTER, STEWART, and MOSCHZISKER, JJ. William D. Grimes, of Pittsburgh, for ap

(252 Pa, 60)

O'KANE v. MURRAY et al.

for appellee Joseph McCall, Jr. George J. Campbell and Walter S. Lobingier, both of Pittsburgh, for appellee James W. Murray.

MESTREZAT, J. Joseph McCall, Jr., one of the defendants, being the owner of a house and lot at 6300 Butler street, Pittsburgh, agreed to sell the premises to James W. Mur

1. MECHANICS' LIENS 189 PERSONS LIABLE-OWNER.

A mechanic's lien attaches only to the interest or estate of the person for whom a building is erected, unless the claimant brings his case within Act June 4, 1901 (P. L. 433) § 4, imposing liability on an owner who shall knowingly suffer or permit any person acting as if

writing dated April 30, 1912, for $3,950, and received $150 as part of the purchase-price, the remainder to be paid on September 1, 1912, when the deed was to be delivered. Murray took possession of the premises, and by a written agreement dated June 3, 1912, between him and O'Kane, the plaintiff, the

[2] The plaintiff's contention that McCall was an owner of the property in question within the purview of the fourth section of the act of 1901 is without merit under the facts of this case. It is conceded that prior to the time Murray entered into the contract with the plaintiff for the improvement of the real estate that McCall had contracted in writing with Murray to convey to him, and that Murray was in possession of it under the agreement. The plaintiff admitted in his replication to McCall's affidavit of defense, and also testified on the trial, that prior to the beginning of the improvements he knew of the contract of sale between Murray and McCall. McCall therefore held the legal title while Murray, who was in possession, had an equitable interest in the property. The contract for the improvement of the property was made by Murray, as the written agree ment discloses, and McCall was not a party to it.

The Mechanic's Lien Law authorized the filing of a lien against Murray's interest for any sum due for work done and materials furnished under the contract. It is therefore difficult to see how, under these facts, the fourth section of the act of June 4, 1901, can apply. Murray, and not McCall, was the "owner" within contemplation of the Mechanic's Lien Law. Murray had the right to improve the property, and it was expected he would do so when the purchase was made, as it was to be remodeled for saloon purposes. He had possession, and McCall could not interfere with that possession or with any improvements he desired to make. The property belonged to Murray, subject only to the payment of the balance of the purchase money on or before the following September, when he would become the holder of the legal title. In the meantime he was the owner and in possession with the right to contract to improve and subject his interest to a lien for such improvement. We do not think the fourth section of the act of 1901 covers the case. In view of the uncontroverted facts in the case, therefore, the testimony which is the subject of the first and second assignments of error was properly excluded.

[3] There is nothing in the case to warrant the contention of the plaintiff that there was

mony, if admitted, would not have been sufficient to sustain his contention under the facts of the case, of which the plaintiff admits he had full knowledge at the time he agreed with Murray to make the improvements. He knew the exact condition of the title, that McCall held the legal title, and that Murray had only an equitable interest under the contract previously entered into between the parties, and that his written agreement to furnish the labor and materials for improving the property was signed by Murray alone. He was therefore as fully cognizant of all the facts relating to the improvement as was either Murray or McCall. There was no deception or fraud practiced upon him, and the excluded testimony, as appears by the offer, would not have disclosed any fraud had it been admitted. The fact that McCall visited the premises frequently, inquired about the progress of the work, urged the contractor to proceed as rapidly with it as possible, and that he discussed with the contractor the changes to be made, merely disclosed the interest which McCall took in the improvement of the property, and not any fraudulent purpose on his part to mislead the plaintiff as to how the title was held or who had contracted with him for making the improvements. Mccall had unquestionably an interest in having the property improved, and that as speedily as possible. He had sold it to Murray for $3,950, and had received a payment thereon of only $150. The balance of the purchase money was to be paid on or before the following September, with the right to the owner to anticipate any of the other payments. Call was anxious that the improvements be completed so that the saloon could be opened and these payments be made. The facts merely disclose the interest that McCall took in the early completion of the improvements. Binding instructions for McCall were properly given by the court on the trial of the cause.

Mc

[4] Section 21 of the act of 1901 requires the claimant within one month after the filing of the claim to serve a notice upon the owner of the fact of the filing of the same, and to file of record in the proceedings an affidavit, setting forth the fact and manner of such service. This section also provides that a failure to serve the notice and file the affidavit within the specified time shall be sufficient ground for striking off the claim. The notice of the filing of the claim was not given to Murray, but service of the notice was accepted by his attorneys. The plaintiff contends that a substantial conformance with. this section of the statute is all that is required, and that the section will not be construed to be mandatory unless it would be inequitable to allow the lien to remain. This contention entirely overlooks the well-established rules applicable to the interpretation of