Edgar Gold & Silver Mining Co. v. Taylor

Per Curiam. The first error assigned is that the court below erred in denying the motion of defendants to dismiss the action for want of the cost bond required by law. The motion is based upon the provisions of sections 1, 2, chapter 20, General Laws, page 189. The requirement of the first section is that the non-resident plaintiff shall, “ before he institutes such suit, file, or cause to be filed, with the clerk,” etc., the cost bond therein specified and required; and section 2 declares that, if any such action shall be commenced, without filing the cost bond required by section 1, the court, on motion, shall dismiss [112] the same. This court has repeatedly held that this language is unequivocal, and leaves nothing to the discretion of the court. Filley v. Cody, 3 Colo. 221; W. U. Tel. Co. v. Graham, 1 Colo. 183; Talpey v. Doane, 2 Colo. 299. It follows that filing the bond subsequently to the commencement of the suit, and whether before or after the motion to dismiss is interposed, cannot avail the plaintiff. Farnsworth v. Agnew, 27 Ill. 42; Sutro v. Simpson, 14 Fed. Rep. 370. The motion to dismiss was the first action taken by the defendant upon his appearance to the suit, and was in apt time. Trustees v. Walters, 12 Ill. 154; Randolph v. Emerick, 13 Ill. 346; Robertson v. County Com’rs, 5 Grilman, 565; Roberts v. Fahs, 32 Ill. 474; People v. Cloud, 50 Ill. 439. The motion was in the nature of a plea in abatement; the defendant, by answering over, did not waive his right to assign for error the decision of the court overruling the motion. Puterbaugh, Pl. 150; Delahay v. Clement, 3 Scam. 201. . For this error the judgment of the court below must be reversed and the cause remanded, with a direction to the court below to dismiss the same. Reversed.