State Board of Pharmacy v. Lurie

This action was brought to recover a penalty for the violation of chapter 667, p. 1471, Laws 1900. The defendants demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. On May 13, 1908, the demurrer was overruled by one of the justices of the Municipal Court, with leave to plead over upon the payment of $10 costs, and the case was set for trial on May 21, 1908. The action was, by consent, adjourned from May 21, 1908, to May 25, 1908. The defendants did not pay the costs required by the order overruling the demurrer and allowing them to plead over. When the action was called on May 25, 1908, the defendants were permitted by another justice of the court, against the objection and exception of the plaintiff, to file their answer to the complaint, and proceed to trial without paying the costs previously imposed. The defendants’ demurrer having been overruled, judgment -could have been entered against them, except for the permission which the court gave them to plead over. This permission was granted upon the express condition that the defendants pay the plaintiff $10 costs. The defendants had no right to avail themselves of this permission unless they complied with the condition imposed.

The judgment is reversed, and a new trial ordered, with costs to the appellant to abide the event, provided that the defendants pay to the plaintiff within five days from, the service of a copy of the order entered upon this decision the sum of $10 costs. If the defendants shall not comply with the provisions of this order, the answer should be stricken out and judgment absolute entered in favor of the plaintiff for the amount to which it was entitled under the complaint or proof, with appropriate costs in the court below and costs of this appeal.