Clark v. United States

• Decision Date: 16 March 1932
• Citation: 57 F.2d 214
• Parties: CLARK v. UNITED STATES.
• Court: U.S. District Court — Western District of Missouri

57 F.2d 214 (1932)

CLARK v. UNITED STATES.

District Court, W. D. Missouri, S. W. D.

March 16, 1932.

Benjamin E. Cook, of Ponca City, Okl., for plaintiff.

Claude E. Curtis, Asst. U. S. Atty., Vergil E. Willis, Regional Atty. Veterans' Bureau, and William L. Vandeventer, U. S. Atty., all of Kansas City, Mo.

OTIS, District Judge.

One William Clark, a veteran of the World War, has tendered for filing his petition pleading a cause of action for recovery against the United States on a contract of war risk insurance. He asks leave to file this petition and to prosecute his case in forma pauperis, and has submitted with his petition an affidavit in the usual form, setting up that because of his poverty he is unable to pay the costs or to give security therefor, and that he believes he is entitled to the redress he seeks in the action he desires to institute. The United States objects to any order authorizing the institution or prosecution of the proposed action until the attorney for Clark, who has the case on a contingent contract, shall either give security for costs or himself file a pauper affidavit.

Counsel for the United States cite in support of the objection the decision of the Circuit Court of Appeals for the Ninth Circuit, in Chetkovich v. United States, 47 F. (2d) 894. And it must be conceded that that decision is squarely in point and should be followed if it correctly declares the law. The very brief per curiam opinion of that court is as follows: "The affidavit in support of the application for leave to prosecute the appeal in this case in forma pauperis avers: `There is no person interested by contract or otherwise in the said cause of action or entitled to share in the recovery thereunder who is able to pay or secure said fees or costs.' Such an affidavit is insufficient. In cases of this kind the affidavit must be made by every person interested in the recovery, including the attorney, if he has a direct interest in the result of the action. United States v. Ross (C. C. A.) 298 F. 64, and cases there cited."

The applicable statute, section 832, title 28, USCA, provides: "Any citizen of the United States entitled to commence any suit or action, civil or criminal, in any court of the United States, may, upon the order of the court, commence and prosecute * * * to conclusion any suit or action * * * without being required to prepay fees or costs * * * or give security therefor, before or after bringing suit or action * * * upon filing in said court a statement under oath in writing, that because of his poverty he is unable to pay the costs of said suit or action * * * or to give security for the same, and that he believes that he is entitled to the redress he seeks in such suit or action * * * and setting forth briefly the nature of his alleged cause of action. * * *"

In this statute there is no ambiguity, no phrase or word of doubtful or double meaning, and nothing, therefore, requiring judicial interpretation and construction. The petitioner here is "a citizen of the United States"; he is entitled "to commence" the action he has tendered and to commence that action in this "court of the United States," he has filed in this court "a statement under oath in writing, that because of his poverty he is unable to pay the costs of said suit or action * * * or to give security for the same, and that he believes that he is entitled to the redress he seeks." In this statement under oath he has set forth "the nature of his alleged cause of action." He has then complied literally with the statute. The statute says that, if he does that, he "may, upon the order of the court, commence and prosecute" his action. I do not understand, however, that by the use of the word "may" any other than a judicial discretion is given to the court. I do not understand that the court has any power to deny the right to prosecute in forma pauperis where the provisions of the statute are fully met. The discretion of the court is to determine whether the prerequisites laid down by the statutes have been complied with.

Undoubtedly there is judicial authority for the rule announced in certain districts and circuits that one may not be permitted to commence or prosecute an action in forma pauperis if he has given his counsel a contingent contract whereby counsel is to receive as compensation for his services a certain percentage of whatever finally may be recovered in the case. In the Eighth circuit there has been no such decision. With all possible respect for the courts which have so held, I am constrained to believe that the rule announced by them cannot be supported by sound reasoning.

In Boyle v. Great Northern Ry. Co. et al., 63 F. 539, it was said by the Circuit Court for the District of Washington, speaking through Hanford, District Judge, that — "There is no question but what a poor person can prosecute his cause and obtain a full hearing, but at the same time litigation is not to be fostered and encouraged by allowing the plaintiff to evade any expense which he makes. That is the duty of any party having sufficient means, and is not to be evaded. If he is not able to pay costs or give security for them, he can have justice without it. But a person who acquires by contract an interest in any litigation, and a right to share in the fruits of a recovery, and who is not entitled to sue in forma pauperis, cannot be permitted, under cover of the name of a party who is a poor person, to use judicial process and litigate at the expense of other people. I think it does make a difference whether the plaintiff has made a contract with his counsel for their compensation. It makes this difference: that, after a...