Muldoon v. Place , 2 Ariz. 4 ( 1885 )

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Were it not for the fact that the law in question had been repealed by the legislature, we should comment upon the constitutionality of the same; but as this ease must be reversed upon another point, we deem it unnecessary to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.