Jackson v. Jackson
| Decision Date | 16 November 1971 |
| Docket Number | No. 11767,11767 |
| Citation | 255 So.2d 249 |
| Parties | Lillian Ann JACKSON, Plaintiff-Petitioner, v. Earl K. JACKSON, Defendant-Respondent. |
| Court | Court of Appeal of Louisiana — District of US |
Kidd & McLeod, by Paul Henry Kidd, Monroe, for plaintiff-petitioner.
Coon & Coon by J. Norman Coon, Jr., Monroe, for defendant-respondent.
Before AYRES, BOLIN, PRICE, HEARD and HALL, JJ.
Plaintiff and defendant, formerly husband and wife, were divorced on September 14, 1966. The judgment of divorce made no reference to nor provision for the support of the two minor children, issue of their marriage, nor provision for plaintiff's support. In instituting this action on August 17, 1971, plaintiff sought a judgment against her former husband condemning him to contribute support to her and the children. After trial of this cause there was judgment in plaintiff's favor condemning the defendant to pay to plaintiff for the support of the minor children the sum of $25 per week. The judgment, silent as to plaintiff's individual support, impliedly to plaintiff's individual support, impliedly From that judgment plaintiff, in open court on September 9, 1971, moved for and was granted a devolutive appeal to this court, returnable on or before October 8, 1971, conditioned, however, upon her posting an appeal bond in the sum of $150.
Notwithstanding that upon the institution of this action plaintiff had secured an order of court authorizing her to institute and prosecute this action in forma pauperis under the provisions of LSA-C.C.P. Art. 5181 et seq., plaintiff was required to file the aforesaid appeal bond. The court refused plaintiff's additional request that she be permitted to prosecute her appeal without the posting of an appeal bond, whereupon the court announced the order had been signed in error and that it was being recalled.
Upon application to this court for writs, plaintiff contended that her action came within that category of actions contemplated by the appropriate statute in which the payment of costs or the advancement of security may be dispensed with. She further contended that that portion of LSA-C.C.P. Art. 5181 excluding suits for divorce and separation from the privileges conferred by the article relative to the payment of costs, et cetera, was unconstitutional. This court directed that a writ of certiorari issue to the end that the propriety of the action of the lower court in refusing plaintiff the right to proceed with her action on appeal without the posting of an appeal bond may be considered and a determination of the question presented be made. The record, pursuant to our order, has been lodged in this court and is now before us for review.
The order permitting plaintiff to proceed in forma pauperis was predicated upon the provisions of LSA-C.C.P. Art. 5181 as amended by Act 336 of 1964. Under the language of this article it is declared:
'A person who is unable to pay the costs of court, because of his poverty and lack of means, may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance, or as they accrue, or furnishing security therefor.
'As used in this chapter: 'judicial proceeding' includes a rule for contempt for failure to pay alimony or child support ordered by the court, but otherwise Excludes an action for a divorce or for a separation from bed and board; and 'person' means an individual who is a citizen of this state, or an alien domiciled therein for more than three years.' (Emphasis supplied.)
The court's refusal of plaintiff's request to proceed with her appeal without bond was apparently based upon the belief that this article excluded from its application actions concerning alimony and child support, which ofttimes are incident to actions for divorce or for a separation. This interpretation of the language of the article is in our opinion, erroneous. Under the language of the statute, the only actions excluded from the privilege of litigating in forma pauperis are those for a divorce or for a separation a mensa et thoro. The action now before us is neither; it is an action by a former wife for her support as well as support for the minor children. Plaintiff is, in our interpretation and appreciation of the intent and purpose of the statute, entitled to the privilege of proceeding herein without further payment of costs and without the necessity of furnishing bond as a prerequisite to the prosecution of her devolutive appeal.
Creel v. Creel,
201 So.2d 871, 873 (La.App., 4th Cir. 1967).
Moreover, as heretofore noted, plaintiff, upon the institution of this action, obtained an order authorizing its filing and prosecution without the payment of cost or the furnishing of bond therefor. With respect to the continuation of this order in force and effect, LSA-C.C.P. Art. 5185 provides:
'When an order of court permits a party to litigate without the payment of costs,...
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...upon granting the order for appeal. Steiner v. Pel State Oil Company, Inc., 271 So.2d 335 (La.App.2nd Cir. 1972); Jackson v. Jackson, 255 So.2d 249 (La.App.2nd Cir. 1971); Courville v. Anchor Gasoline Corporation, 174 So.2d 680 (La.App.3rd Cir. 1965) Applicant correctly urges that upon perf......
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Steiner v. Pel State Oil Co., Inc.
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