Opinion by

The material facts being identical with the case of Cusiter v. City of Silverton, 50 Or. 419 (93 Pac. 234), that case is controlling. Therefore the judgment appealed from should be modified, and the cause remanded to the lower court, with instructions to remand to the trial 'court, with directions to set aside the judgment and take such further proceedings therein as may be proper, not inconsistent with this opinion. The petitioner should recover costs in this court. Modified.