Hunt v. McDonald

102 N.W. 318, 124 Wis. 82, 1905 Wisc. LEXIS 42

• Court: Wisconsin Supreme Court
• Decided: January 31, 1905
• Status: Published

Opinion

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 same 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.