#### Hunt, Respondent, vs. McDonald, Intervener, Appellant.

*January 12*

January *31, 1905.*

*Liens: Homestead: Foreclosure: Vacating judgment: Application of wife to be made party: Discretion.*

In an action to foreclose a mechanic’s lien upon a homestead for work done under a contract with the husband, who held the title, he was the sole defendant. He defended on the ground of failure to complete an entire contract, hut was defeated on the merits. The wife, though she had full opportunity, did not ask to he made a party before the trial, hut applied to have the judgment vacated that she might retry the case on the same defense. *Held*that, as the contract was with the husband alone, the wife, though a proper party, was not a necessary party to the action, and under the circumstances there was no abuse of ■discretion in denying her application.

Appeal from an order of tbe circuit court for Jefferson county: B. E. Duwwiddie, Circuit Judge.

*Affirmed.*

This is an action to foreclose a mechanic’s lien for drilling a well. Tbe premises sought to be charged constituted tbe homestead of one James McDonald, and tbe appellant, *Came M.*McDonald, is bis wife. Tbe action was originally brought against James as sole defendant, and be answered, claiming tbat tbe contract under which tbe well was drilled was an entire contract by which tbe plaintiff agreed to obtain good water, and tbat tbe plaintiff failed to perform bis contract, and hence was not entitled to recover. Tbe action was tried *83-on tbe issue so formed at tbe June term, 1903, of tbe circuit court for Jefferson county, and resulted in findings and judgment for tbe plaintiff, establishing a lien on tbe premises. Afterwards, and on tbe 11th day of July, 1903, a motion was made by tbe petitioner, *Carrie M.*McDonald, before tbe circuit judge, at chambers, based upon a verified petition and accompanying affidavits, asking that tbe judgment be vacated and that she be allowed to come into tbe action as a party and defend tbe same. Tbe petition alleged that' tbe judgment was obtained by fraud and false swearing, and that she knew that tbe plaintiff’s contract was to get good water, and that neither work nor materials were to be paid for in case be failed to do so. Tbe motion was opposed by counter affidavits, and an order was made by tbe judge denying tbe motion, in which order it was recited that tbe petitioner bad full opportunity to make her application to be made a party to tbe action before its trial, and allowed tbe same to be tried and go to judgment. Thereafter, and in December, 1903, tbe petitioner moved the court, upon tbe same papers, to reverse tbe order made at chambers and grant tbe relief prayed for in tbe petition. This motion was denied by tbe court, and petitioner appeals.

Tbe cause was submitted for tbe appellant on briefs by *J. H.*Page, and for tbe respondent on a brief by *Edwin T. Cass.*

WiNsnow, J.

This was an action brought to foreclose a mechanic’s lien upon a homestead for drilling and piping a well thereon under a contract with tbe husband alone. Tbe title of tbe homestead rested in tbe husband, and be was made the sole party defendant, and defended tbe action on tbe ground of failure to complete an entire contract, but was defeated after trial upon tbe merits. Tbe wife, who is tbe petitioner here, bad full opportunity to make application to be made a party before tbe trial of tbe action, but allowed tbe *84same to be tried and go to judgment, and is now endeavoring to vacate the judgment and retry the action on the same lines of defense made by the husband. She had an inchoate right of dower in the land, and also a homestead right, which latter right was not an estate, but simply a disability of the husband. *Godfrey v. Thornton,*46 Wis. 677, 1 N. W. 362; *Town v. Gensch,*101 Wis. 445, 76 N. W. 1096, 77 N. W. 893. On account of these interests in the subject matter, she would have been, doubtless, a proper party to the action. *Hausmann Bros. Mfg. Co. v. Kempfert,*93 Wis. 587, 67 N. W. 1136; *Weston v. Weston,*46 Wis. 130, 49 N. W. 834. But as the contract to construct the well was made with her husband alone, she cannot be said to be a necessary party to an action to foreclose the lien. *Foster v. Hichox,*38 Wis. 408. It was therefore a question of discretion whether she would be allowed to come in and defend, and we think the circumstances appearing on the application were entirely sufficient to justify the court in refusing to grant the application.

*By the Gourt.*— Order affirmed.