JOHN MULDOON et al., Plaintiffs and Appellants, v. O. F. PLACE et al., Defendants and Respondents

[Civil No. 122. Filed April 4, 1885.] [S. C. 6 Pac. 479.] JOHN MULDOON et al., Plaintiffs and Appellants, v. O. F. PLACE et al., Defendants and Respondents. 1. Pleading—Dilatory Pleas and Motions—Must be Filed Promptly or Eight Lost.—All dilatory pleas or motions must be pleaded in apt time,—that is, at the earliest practicable moment,— or the right to plead or make the motion will be waived. 2. Practice—Motion to Dismiss for Want of Cost Bond Dilatory-Eight to Make Motion Lost After Demurrer Filed.—A motion to dismiss for want of a bond for costs is a dilatory motion, and if not interposed in the first instance is waived. After filing a demurrer it is then too late to ask for and require plaintiffs to file a bond for costs, and it is error to allow defendants’ motion to dismiss for want of cost bond. 3. Laws 1883, Act 100, Cited. APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Yavapai. Reversed. The facts are stated in the opinion. Rush and Herndon, for Appellants. The defendants Cline, Porter and Fares waived their right to ask for a dismissal for want of bond by filing their demurrer to plaintiff’s complaint, for the reason that all technical irregularities must be taken advantage of at the earliest opportunity; and any appearance, or pleading, of any kind, made, or filed, after the accruing of such technical irregularity is a waiver of the right to take advantage of such irregularity. Parker v. Williams, 4 Paige Ch. (N. Y.) 489; Thompson Prov. Rem. 447; Drake on Attachment, Secs. 112, 144 (4th Ed.) ; Nichols v. Nichols, 10 Wend. 560; Hart v. Small, 4 Paige Ch. (N. Y.) 288. Churchill and Dann, for Respondents. The fact being admitted that, no bond was filed at the commencement of the suit the judgment of dismissal should be affirmed. [MAJORITY — PINNEY, J.] PINNEY, J. This action was commenced to recover the possession of a mining claim. The complaint was filed. August 27, 1883. A demurrer to the complaint was filed October 8, 1883. November 8, 1883, a motion was made to dismiss the case for a failure of plaintiff to comply with an act entitled “An act to suppress vexatious litigation;” in other words, for failure of plaintiffs to give a bond for costs, including attorney’s fees, before commencing suit. This the laws of March, 1883, require to be done in all cases sounding in tort, or for any interest in real estate not evidenced by writing. The bond is to be signed by two good and sufficient sureties. No provision is made for the approval of the bond, and no mention is made as to what the amount of the bond should be. It does provide that for a failure to comply with the law on part of plaintiff the action shall be by the court dismissed. Upon the motion so made this action was by the court below dismissed, from which said order of dismissal the plaintiffs appeal to this court. Were it not for the fact that the law in question had been repealed by the legislature, we should comment upon the constitutionality of the same; but as this ease must be reversed upon another point, we deem it unnecessary to discuss that question. It is not necessary to cite authorities upon the proposition that all dilatory pleas or motions must be pleaded in apt time—that is, at the earliest practicable moment—or the right to plead them or make the motion will he waived. A motion to dismiss for want of a bond for costs is a dilatory motion, and if not interposed in the first instance is waived. Trustees v. Walters, 12 Ill. 154. After filing a demurrer it was then too late to ask for and require plaintiffs to file a bond for costs, and the court below erred in allowing defendants’ motion to dismiss. Judgment and order reversed, and cause remanded for further proceedings. Howard, C. J., and Fitzgerald, J., concurring.