
    Sprague v. Haight et al.
    1. Practice: motion: time for filing. In a case where a motion for security for costs is proper, such motion must be filed by the time the defendant is required to plead, or such further time as may be granted by the court, otherwise it may properly be overruled.
    
      Appeal from Appanoose District Cowrt.
    
    Tuesday, October 5.
    Action in equity to foreclose a mortgage. The mortgage appears to have been executed by the defendants John TIaight and Roxma Haight, his wife. It was alleged in the petition that the defendants Linkendoffer and Richardson claimed some interest in the mortgaged property, but that whatever interests they had were subordinate to the mortgage. Service of .an original notice was had upon all the parties. Ou the second day of the term at which defendants were required to appear, a default for want of appearance was duly entered against the said John and Roxma Iiaight. The defendants Linkendoffer and Richardson appeared by attorney. On the third day of the term they asked time until the next morning to file a motion for security for costs, which time was given by the court. They failed to file the application for security for costs in the time given them, and the court required them to answer by noon of said day. They did not comply with this order, but on the next day, being the fifth day of the term, they filed a motion for security for costs, upon the ground that the plaintiff was a non-resident of the State. On the seventh day of the term the court overruled the motion because not filed by the time fixed by the court. The said defendants elected to stand on their motion, whereupon the court entered a default against them for want of an answer. Defendants excepted, and appeal.
    
      Geo. D. Porter, for appellants.
    
      I. O. Meohem, for appellee.
   Rothrook, J.

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 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.  