The plaintiff brought this action under the statute for the benefit of his minor son, of the age of eight years, against the defendants Schutte and Dearing, alleging in his complaint that the defendants wrongfully kept two vicious dogs, accustomed to bite children and others, which they well knew; and that on the 11th of April, while they so kept said dogs, knowing them to be vicious, the dogs attacked and bit said minor son, by reason of which said son is damaged in the sum of $5,000. Each of the defendants appeared by separate attorneys, and answered separately, and each, in his answer, denies that he ever owned or kept either oí the dogs in question.
When the case was called for trial, Schutte paid plaintiff’s attorney $25, for the purpose of procuring a settlement and dismissal of the case as against him. Plaintiff claims that this was only paid and received conditionally, and that, if plaintiff did1 not see fit to accept it in settlement, it should be returned. The evidence tends very strongly, if not conclusively, to prove that it was intended by all the parties as an absolute settlement as to Schutte. Whether or not, as such statutory trustee to bring the action, plaintiff had the power thus to settle it, we will not decide, but, for the purposes of this case, will assume that he had such power. After such settlement or attempted settlement, Schutte and his attorney left the court room, and the trial proceeded in their absence. At the close of the trial, plaintiff dismissed as to Schutte, and had a verdict against Dearing for $600, on March 14,1893. A motion for a new trial was made by Dearing, April 21, and denied July 5, 1893. An appeal was taken by him to this court from the order denying the same. The order appealed from was affirmed December 6, 1893, for failure of appellant to serve his paper book and brief. The mandate was filed in the court below, and ón December *23921, 1893, Dearing made a second motion for a new trial in that court, and this is an appeal from an order denying that motion. One of the grounds of that motion is newly-discovered evidence. This evidence, so far as it is urged here, is proof that Schutte paid plaintiff, and plaintiff accepted, said $25 in full settlement of the case as to him, and that he and Dearing were joint tort feasors, and it is urged that such satisfaction as to one is a satisfaction as to both. No leave was given to repew the motion for a new trial, and the court held that the right to a new trial by reason of the settlement with Schutte was passed on in the first motion for a new trial, and is res judicata.
On the trial, Dearing subpoenaed and called Schutte as a witness, and offered to prove by him that the case had been so settled as to him. The trial court refused to permit him to prove it, and suggested that it was not admissible under the pleadings. Dearing did not ask for leave to file a supplemental answer, or make any further effort to avail himself of this defense upon the trial. One of the grounds for a new trial in the first motion is newly-discovered evidence, and Dearing’s affidavit in support of that motion contains the following statement:
“Deponent further says that the alleged claim of said plaintiff has been settled by one W. E. Schutte, one of the defendants herein; and that said Schutte has paid to said plaintiff, said Lathrop, and that said plaintiff has received from said Schutte, the sum of twenty-five dollars in full satisfaction of the claim of said plaintiff; and that such payment was made before the verdict in this action was found and entered herein.”
This affidavit was made April 21, 1893. In his affidavit of December 21st, used on his second motion, he says that he did not discover the fact of settlement until June 1st, and that, when he made said first affidavit, he merely believed it to be true, and so intended to state. Conceding all this, it appears that his first motion, though made in March, was not argued or submitted until June 17th, thus giving him 16 days, after the time he now says he discovered the fact, to avail himself of it in his first motion for a new trial.
On Dearing’s first motion for a new trial, he did not ask leave to file and serve a supplemental answer, setting up the fact of settle*240ment, which he did in the second motion; and whether the matter is res judicata by reason of the first motion it is not necessary to decide. It is clear he is guilty of gross laches in failing until the 21st of December, 1893, to take projjer steps to avail himself of the defense of the settlement with Schutte. A party should avail himself of such a defense at the first opportunity; and whether he was guilty of inexcusable laches in failing to avail himself of this defense at the trial, or at most on the first motion for a new trial, it is not necessary to decide, though there is much reason for so holding.
This disposes of the case, and the order appealed from should he aifirmed. So ordered.
Gileillan, C. J., absent on account of sickness; took no part.(Opinion published 61 N. W. 34.)
Petition for reargument denied December 14, 1804.