Hunt v. McDonald

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. 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 -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.