Opinion of the Court-Truitt, J.

614, 93 N. E. 381, and Carson v. City of Genesee, 9 Ida. 244, 108 Am. St. 127, 74 Pac. 862. After an examination of these authorities, we are persuaded that none of them sustain appellant's contention, but as we consider Hickey v. City of Nampa the nearest in point of these authorities, we will therefore review the case at some length.

The action was brought for the purpose of procuring a writ of injunction restraining the issuance and sale by the city of Nampa of certain municipal coupon bonds in the sum of $37,000. The city owned a water system consisting of a pumping station and a system of wooden pipes. The city also owned certain fire equipments and appurtenances for the fighting and extinguishing of fire. In July, 1909, a disastrous fire broke out in the business section of the city by which about $200,000 worth of property was destroyed. During the fire the water supply was exhausted, the water was pumped directly through the mains, and this resulted in bursting most of the wooden pipes, and the city was left without any fire protection. The mayor and council considered this a casualty within the purview of section 2270 of the Rev. Codes, that the repair and improvement of the water system and fire-extinguishing apparatus was a public necessity calling for immediate action. Under the stress of this necessity, they, by unanimous vote, determined to restore the water system in such a manner as to adequately protect the property in the city. To pay for the material and work for these improvements, city warrants were issued for various items of expense. In August, 1911, an ordinance was duly passed to issue bonds in the sum of $37,000 to pay off the indebtedness represented by these warrants. These were the facts before this court in that case, and it was held that the said bond issue was legal. In the opinion, delivered by Mr. Justice Ailshie, the position of the court is fully stated as follows:

"In the first place, we have no doubt but that the indebtedness which was incurred falls within the purview of sec. 2270 of the Rev. Codes, in that it was entailed as a result of a casualty or accident which could not have been foreseen

Opinion of the Court-Truitt, J.

and provided for by the annual appropriation. The city of Nampa had duly and regularly exercised the power and authority conferred upon it by the provisions of subdivisions 36 and 37 of sec. 2238, Rev. Codes, in acquiring and maintaining a waterworks system and apparatus and appliances for extinguishing fires. In order for this property to be of any value to the city, it was necessary for it to be kept in repair. When the fire came and the waterworks system was impaired and rendered useless, it was necessary that the city repair and restore it. It was also equally necessary to have fire equipment and apparatus to enable it to properly utilize the water in case of fire. The vote of the council to make this expenditure and incur the indebtedness was authorized by unanimous vote, and was therefore a compliance with the requirements of sec. 2270. It appears in this case that the mayor and city council acted in good faith, and that this was a bona fide improvement and restoration of property within the purview and meaning of the statute. The city council could certainly not use this as a subterfuge for the construction or purchase of a new system of waterworks or other independent, separate or new property so as to contravene the provisions of sec. 3, art. 8, of the constitution.

The same section, however, closes with this proviso: 'Provided, that this section shall not be construed to apply to the ordinary and necessary expenses authorized by the general laws of the state.' We take it that it was within the power of the legislature under this constitutional provision to say that an expenditure, though out of the ordinary, which is incurred for the purpose of repairing some damage done to city property or improving it in such manner as to render it serviceable to the city, falls within this proviso to the constitution. The repair and improvement of the property may be 'ordinary and necessary' and yet not occur frequently."

And further on in said opinion it is stated: "This was not the creation of any new indebtedness, but was rather the changing of the form of the indebtedness or paying an ordinary debt already incurred."

Opinion of the Court-Truitt, J.

We do not think the contention of appellant, that the consideration for the agreements entered into by the city in said contract is not a new debt or liability, is sustained by this authority. In Hickey v. City of Nampa, it is held that the debt was legally incurred under the proviso of said section 3, and it was a definite fixed liability on the city. The identical debt as evidenced by city warrants was simply changed into the form of bonds, and it was decided in that case that it was not a new debt. But in the case at bar, it cannot be ascertained from the contract, or anything else in the record, what the amount of the liability is that the city assumes thereby, and when we consider the sums of money claimed by appellant for alleged damages to its property by the city, the fact at once appears that said sums so claimed for such damages are uncertain, and contingent, and have never before the execution of said contract been liquidated, settled or in any manner reduced to a definite or fixed amount of indebtedness against the city by decree of a court, by arbitration, compromise or in any manner whatever; and if these sums are liquidated, settled and fixed as a definite amount of indebtedness by the contract itself, this amount would then constitute a new debt. Furthermore, if a court should attempt to enforce this contract, its specifications of the work to be done are so meager and indefinite and the sums to be expended thereon are so uncertain, that it would almost inevitably lead to dispute and litigation.

We think it would not be profitable to review the other authorities cited by appellant in support of the proposition that the consideration for the obligations entered into by the city in said contract did not constitute a new debt or liability, for, as we understand them, they are not in point on this proposition.

We are of the opinion, therefore, that under the authority of Feil v. City of Coeur d'Alene, the contract upon which this action is based by its terms plainly incurs a liability, if not a debt, upon the city of Boise, that the obligations of said contract do constitute a new debt upon the city, and we therefore hold that said contract is void.

Argument for Appellant.

The judgment of the trial court must be affirmed, with costs in favor of the respondent.

Sullivan, C. J., concurs.

(September 30, 1914.)

W. D. FALES and ELIZABETH B. FALES, Respondents, v. WEETER LUMBER COMPANY, LTD., a Corporation, Appellant.

[143 Pac. 526.]

EQUITABLE ACTION-JUDGMENT-SETTING ASIDE.

1. Held, under the law and evidence, that the court erred in setting aside the judgment sought to be set aside by this action. 2. One who seeks equity in a court of conscience must do equity before any relief will be granted.

3. Where an equitable action is brought to vacate a judgment upon the ground that it was obtained without jurisdiction, it must appear that the judgment sought to be set aside is inequitable and unjust, and that plaintiff has a good defense thereto.

4. If a judgment is regular on its face, it will never be opened up merely for the purpose of letting in the defense of the statute of limitations.

APPEAL from the District Court of the Fourth Judicial District for Gooding County. Hon. Edward A. Walters, Judge.

Equitable action to set aside a judgment. Judgment for plaintiffs. Reversed.

James R. Bothwell and Thos. F. Terrell, for Appellant.

As a matter of equity and good conscience, neither of the plaintiffs would be permitted to maintain this action seeking the equitable relief which they do, without first paying to the defendant the balance due to it for lumber and building materials, which it is conceded has not been paid. (Tracy

Argument for Respondents.

v. Wheeler, 15 N. D. 248, 107 N. W. 68, 6 L. R. A., N. S., 16; Willits v. Willits, 76 Neb. 228, 14 Ann. Cas. 883, 107 N. W. 379, 5 L. R. A., N. S., 767; International Land Co. v. Marshall, 22 Okl. 693, 98 Pac. 951, 19 L. R. A., N. S., 1056; Booth v. Hoskins, 75 Cal. 271, 17 Pac. 227, and cases cited; Bernhard v. Idaho Bank & Trust Co., 21 Ida. 598, Ann. Cas. 1913E, 120, 123 Pac. 481; Brandt v. Little, 47 Wash. 194, 91 Pac. 765, 14 L. R. A., N. S., 213; 1 Black on Judgments, sec. 394.)

"A court of equity will not interfere with the enforcement of a judgment recovered at law, unless it is unjust and unconscionable; and therefore such relief will not be granted, unless the complainant shows that he has good and meritorious defense to the original action." (23 Cyc. 1031.)

"Acquiescence consisting of mere silence may operate as an estoppel to preclude assertion of legal title and rights of property." (Loughran v. Gorman, 256 Ill. 46, 99 N. E. 886; 2 Pomeroy, Eq. Jur., 3d ed., 818; Niven v. Belknap, 2 Johns. (N. Y.) 573.)

In order for the plaintiff to state a cause of action or to recover in this cause, she must allege in her complaint and prove as a fact that the defendant Weeter Lumber Co., at the time when said lien was filed and at the time when said action to foreclose the same was commenced, knew that the said property was community property, and also knew that it was occupied and used as a place of residence. (Washington Rock-Plaster Co. v. Johnson, 10 Wash. 445, 39 Pac. 115.)

There is nothing in the statutes or the laws of Idaho requiring the wife to be made a party defendant in actions to foreclose a lien either upon the homestead or upon other community property occupied as a residence.

"Where a lien attached to real estate before becoming a homestead, the wife is not a necessary party to an action foreclosing the same." (Watkins v. Sproull, 8 Tex. Civ. App. 427, 28 S. W. 356; Boisot on Mechanics' Liens, sec. 529.)

W. G. Bissell, for Respondents.

The judgment against which we sought to quiet title was a nullity and void, and thus, as a general proposition of law, is