Sprague v. Haight

Rothrook, J. i. practice: lor filing. The ruling of the court in refusing to entertain a motion for security for costs, filed after the time fixed therefor, was undoubtedly correct. Counsel for appellants contends that under section 2927 of the Code they had the right to file such motion at any time before answering. But when some jfieading was required on the second day of the term, the defendants neither filed their answer nor motion, but the case passed till the next day without either. On the third day they were given until the morning of the fourth to file their motion. This they did not do, and they were ordered to answer. The statute does not mean that a party may have his own time to file the motion. When the time arrives for an answer, demurrer, or motion, he may properly be required to do something. If he chooses to make the motion, he must make it instanter, or [448] within such time as is given him by the court. If he fails, without sufficient excuse, he may properly be held to have waived his right to file the motion, and may be required to answer or demur. Affirmed.