Stell v. Barham, 85 N.C. 88 (1881)

Oct. 1881 · Supreme Court of North Carolina

85 N.C. 88

JOHN S. STELL v. HYATT BARHAM.

Appeal in Forma Pauper-is..

An appeal1 in forma pa/uperie must be perfected during1 the term at which' judgment was rendered, and the judge has no power to aliowthe party praying such appeal twenty days from the last day of the term in which, to file his affidavit of inability to give the- bond required' by law.

dWeber v. Taylor, 60 N*. C., 412; Miazza v. Calloway, 74 ÍT. C'., 31; State-v. Patrick, 72 N. C., 217; State v.. Morgan,.77' ÍT. C., 510, cited- and’ and'approved-.)

Ejectment tried' at Fall Term-, 1881, of Wake. Superior-Court, before Gilmer, J:

The jury rendered a verdict for- the plaintiff, and from the judgment thereon the defendant prayed an appeal. A certificate was filed by the defendant's counsel stating that in. his opinion-, the judgment was- -erroneous, and- that the-defendant was unable by reason of insolvency to deposit am amount necessary to- secure the costs of an appeal or to execute a bond for the same, and, that said insolvency is ad¡-mitted by the plaintiff. Thereupon the court adjudged that the defendant be allowed to appeal in forma pauperis,, and be-allowed twenty days from the last day of this, term to file his own affidavit of his insolvency, which- affidavit was accordingly filed. In this court the plaintiff, moved to dismiss the appeal.

Messrs..Battle & Mordecai,.Sirong:a.ná Batchelor,,for plaintiff..

Mr. Armistead Jones, for defendant.

Smith, C. J.

The plaintiff’s motion to dismiss the appeal! as taken in disregard of the directions of the act of 1874 passed “ to enable indigent parties in civil actions to appeal to the supreme court,” must be granted. The act. makes it the duty of the presiding judge, upon application to him at-the time of trial, to make an order allowing the appeal without security with the proviso that the party desiring to-appeal “ shall make affidavit that he is- unable- by reason of his poverty to give the security required by law," and that he is advised by counsel- that there is error in matter of law in the decision of the court. The affidavit must be accompanied also by a written statement from a practicing attorney of the court “ that he has examined the affiant’s case- and- that he is of opinion that the decision of the superior court in said áction is- contrary to law.” Acts 1873-74, ch. 60, § 1. A similar right to appeal without security upon conviction of a criminal offence in the same court was-given-to defendants by a previous enactment, upon the filing an affidavit of inability and that “ he is advised by counsel that he has reasonable cause therefor and that the application is in good faith.” Acts 1869-70^ cb. 196>

These enactments were intended to enlarge the operation of the act of 1869, amending section 72 C. C. P. which au-thorises the institution of a suit in forma pauperis under certain conditions-, by allowing the prosecution of appeals to this court without giving security, to which the previous-authority for bringing the action did not extend. Weber v. Taylor, 66 N. C., 412; State v. Patrick, 72 N. C. 217.

Whether the application be to commence the action or to-appeal from an adverse determination, without security, it must be supported by the affidavit of the party, and no provision is made for any other mode of proving the fact t-hafe he is unable to- give security. The necessity of such affidavit is held in Miazza v. Calloway, 74 N. C., 31.

There is no less necessity for it when- the appeal is asked from a judgment, at least in a civil action, for this- raises “ a strong presumption against the party,” as was said in Weber v. Taylor, supra.

The oath may be- exacted from the party because the inability is within his personal knowledge, while the statement of any agent aeting on his behalf must rest largely if not wholly on information and belief, and the law gives a specific legal effect to the affidavit and seems to admit no -contradictory evidence of the fact stated. The sufficiency in substance and form of the affidavit is to be determined by the judge, and it must therefore be before him when he makes the order. The order is in terms absolute and cannot be made contingent upon a subsequent compliance with conditions essential to its validity, of which he must be the only judge. Ordinary appeals are of right, not under leave of the court, when the right is exercised in conformity with the law regulating appeals. The required security can be ■dispensed with only when so adjudged in pursuance of the terms of the statute which confers the power. As all the conditions prescribed by law for an effectual appeal must be observed and the mandate of the law enforced, so its provisions in favor of insolvent litigants ean be sought and obtained in the prescribed mode only.

It must be declared, therefore, that there is error in the ■order allowing the appeal without security because of the .absence of the affidavit of the appellant when it was made. State v. Morgan, 77 N. C., 510.

Per Curiam. Appeal dismissed.