Mitchell v. Sloan, 69 N.C. 10 (1873)

June 1873 · Supreme Court of North Carolina

69 N.C. 10

HOWELL MITCHELL and wife et al. v. R. M. SLOAN, Ex’r, et al.

A Judge of the Superior Court has no power to make an order authorizing a person who has been permitted to sue informa pauperis to appeal to the Supreme Court without giving security for the costs of the appeal, and for the want of such security the appeal will be dismissed with costs.

The cases of Felton v. Elliott, 66 N. C. Rep. 106, and Weber v. Taylor, Ibid. 412, cited and approved.

The plaintiffs upon a proper application therefor, obtained from his Honor, lourgee, J., an order allowing them to sue in forma pauperis in the Superior Court of the county of Guilford. The suit was brought and at the last term of the Court a judgment was given against them, whereupon his Honor made an order allowing them to appeal to the Supreme Court informa pauperis without giving security for the costs of the appeal.

Gorrell, for the plaintiffs.

Dillard, Gilmer & Smith, and L. M. Scott, for the defendant.

Boyden, J.

This suit was commenced by order of the Judge informa pauperis, and after a decision against the plaintiffs, his Honor, upon motion of the plaintiffs to appeal without security, made an order in the following words, to-wit: “ It appearing to me that the plaintiffs have heretofore, for sufficient cause shown, obtained leave to prosecute this action informa pauperis, it is ordered for the same cause, that the plaintiffs have leave to prosecute said appeal, to the Supreme Court in forma pauperis, without giving any bond or making any deposit for securing costs on said appeal, and without payment of costs to any officer of said Court.” In this there was error. This case is governed by the case of Felton v. Elliott, 66 N. C. R. 196, and the case of Webb v. Taylor and another, same volume, page 412. The statute only allows the Judge of the Superior Court to allow a suit to be prosecuted in his Court informa pauperis, and it would seem to he absurd that a Judge of an inferior Court should be allowed the right to say that the officers of a Superior Court, over whom he has no control, should perform service without compensation.

The suit is dismissed for want of security for the appeal.

The plaintiffs must pay the defendants their costs in this Court. This will be certified.

Per Curiam. - Judgment accordingly.