Clay v. Southern Ry. Co.

• Decision Date: 04 October 1898
• Docket Number: 608.
• Citation: 90 F. 472
• Parties: CLAY v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

90 F. 472

CLAY v. SOUTHERN RY. CO.

No. 608.

United States Court of Appeals, Sixth Circuit.

October 4, 1898

This cause comes on to be heard upon a petition by the plaintiff in error of the tenor following: 'Your petitioner, plaintiff in error in the above cause, respectfully shows that this suit was brought originally in the law court at Johnson City, Tenn., and was, on petition of the defendant, removed to the United States circuit court at Knoxville, Tenn. It is an action for damages for personal injuries resulting in death. Plaintiff's intestate left surviving her a father, brother, and sister. While the suit was pending, the father died. The trial judge held, upon the hearing of the cause, that the suit abated with his death. The case was a good one upon the merits, as petitioner verily believes, and the only question for trial in this court is whether there is error in the judgment of the trial judge in his holding referred to above. Plaintiff's intestate left no estate of any character, and plaintiff has nothing to pay the docketing fee and the fee for printing the record in this court. The transcript of the record in the cause has been made, and is now in the hands of the clerk of this court. Petitioner therefore prays that the filing of the docket fees and the printing of the record be dispensed with in this cause.'

J. B. Cox and Isaac Harr, for plaintiff in error.

Jourolmon, Welcker & Hudson, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

PER CURIAM.

This petition must be denied, because it does not appear therefrom that the persons who claim to be the beneficiaries and the real parties in interest in the cause of action are paupers, and unable to pay the ordinary costs of the proceeding in error. It is not sufficient, in a suit brought by one in a representative capacity, as is the case with such suits under the Tennessee statutes, to make it appear that in his representative capacity he has no funds with which to prosecute the suit. It must also appear that those persons who will enjoy the fruit of the litigation, and who are the real parties in interest, are also in such a condition of poverty that they cannot pay the costs of that which is done for their benefit. The application is therefore denied, without prejudice to its renewal, upon an affidavit which shall remedy the defect herein pointed out, within 30 days.