Rowark v. Homesley, 68 N.C. 91 (1873)

Jan. 1873 · Supreme Court of North Carolina

68 N.C. 91

ISABELLA ROWARK v. A. R. HOMESLEY and wife, E. J. HOMESLEY.

A plaintiff wlio is allowed to sue, in forma pauperis, has no right to an order of arrest, without first filing the undertaking required in sec. 152 of the Code of Civil Procedure.

Motion to vacate an order of arrest, heard before Logan, /., at Fall Term, 1872, of Oleaveland Superior Court.

The action was for slander, and the plaintiff was permitted,, upon filing the proper affidavit, to sue in forma pauperis.. Having also filed the affidavit required by sec. 149, Code of Civil Procedure,- that the action was for an injury to her character, the Court issued an order of arrest and the defendants gave bail. At Fall Term, 1872, the defendants moved to vacate the order of arrest, and discharge the bail given by them in obedience to said order. Motion allowed ; whereupon the plaintiff appealed.

HoJce, Lee & Durham, for appellant.

Schenclc & Bynum, contra.

Pearson, C. J.

In the absence of any other provision,., the privilege of suing in forma pauperis might by implication include the right to appeal and to have the provisional remedies also, in forma pauperis; that is, without giving an undertaking with sureties. But C. C. P., sec. 152, provides,. “ Before making the order (of arrest), the Judge shall require a written undertaking on the part of the plaintiff, with sureties, to the effect,” &c. This express provision excludes ■ the implication, that a plaintiff who is allowed to sue without giving a prosecution bond, is also to have the right to an order of arrest without a written undertaking. See also C. C. P., sec. 174.

There is no error in the ruling hy which the order for the -arrest is vacated.

This will be certified.

.Per Curiam.

Order confirmed.