Hoey v. McCarthy

• Decision Date: 24 June 1890
• Citation: Hoey v. McCarthy, 124 Ind. 464, 24 N.E. 1038 (Ind. 1890)
• Parties: Hoey v. McCarthy.
• Court: Indiana Supreme Court

124 Ind. 464

24 N.E. 1038

Hoey

v.McCarthy.

Supreme Court of Indiana.

June 24, 1890.

Appeal from circuit court, Starke county; George Burson, Judge.

H. W. Robbins, for appellant.Albert I. Gould and James W. Nichols, for appellee.

Mitchell, J.

The only question for decision involves the propriety of the ruling of the court in refusing to admit the appellant to prosecute an action instituted by her in the Starke circuit court against the appellee, as a poor person, and in sustaining a motion to dismiss the action because of the plaintiff's failure to file a bond for costs; a proper affidavit showing that she was a non-resident of the state of Indiana having been filed.“Any poor person not having sufficient means to prosecute or defend an action, may apply to the court in which the action is intended to be brought, or is pending, for leave to prosecute or defend as a poor person.The court, if satisfied that such person has not sufficient means to prosecute or defend the action, shall admit the applicant to prosecute or defend as a poor person, and shall assign him an attorney to defend or prosecute the cause, and all other officers requisite for the prosecution or defense, who shall do their duty therein without taking any fee or reward therefor from such poor person.”Section 260, Rev. St. 1881.The record shows that, after instituting her action, the plaintiff presented a verified petition asking the court to admit her to prosecute as a poor person.She set forth in the petition that she had a meritorious cause of action against the defendant to recover the value of seven years' services rendered for him; and to recover $250, money loaned the defendant about four years before the action was commenced.She averred that she was poor, and not worth $10 over and above her wearing apparel, and the claim she was prosecuting against the defendant.It does not appear that any other evidence was heard, or that any statement was made by any attorney, or other person than the petitioner, concerning the merits of the claim.Pending the plaintiff's petition the defendant moved the court, upon an affidavit showing that the plaintiff was a non-resident of the state of Indiana, that she be required to file a bond for costs.The court denied the plaintiff's petition, and made an order requiring her, within a time fixed, to file a cost-bond.Refusing to comply with this last order, her complaint was dismissed.

An application to be permitted to prosecute an action as a poor person presents a subject for the sound discretion of the nisi priuscourt, and a very clear case of abuse must be shown before the discretionary power of the court can be interfered with.The court must be satisfied that the petitioner has not sufficient means to prosecute the action.More than that, the court ought to be satisfied that the claim upon which the action is predicated is a meritorious one.At the common law, no one was admitted to sue in forma pauperis.Subsequently, in pursuance of the statute, (...