Life & Cas. Ins. Co. v. Walters

Citation200 So. 732,190 Miss. 761
Decision Date24 February 1941
Docket Number34303.
PartiesLIFE & CASUALTY INS. CO. v. WALTERS.
CourtUnited States State Supreme Court of Mississippi

In Banc.

Appeal from Circuit Court, Jones County; F. B. Collins, Judge.

Action on life policy by Mrs. Lena Walters against the Life &amp Casualty Insurance Company. A judgment for the plaintiff was reversed by the Supreme Court and the cause remanded. On motion for an order to send down the mandate on an affidavit by the plaintiff in forma pauperis.

Motion overruled.

A. S Scott, of Laurel, for appellant.

Leonard B. Melvin, of Laurel, for appellee.

GRIFFITH, Justice.

The judgment obtained by appellee in the trial court was reversed and the cause remanded on November 25, 1940, 198 So. 746. A previous judgment in favor of appellee was reversed on November 29, 1937, 180 Miss. 384, 177 So. 47. The present motion is for an order upon the Clerk to send down mandate on an affidavit by appellee in forma pauperis in accordance with the ruling promulgated by this Court on June 12, 1939, in Jackson County v. Meaut, 185 Miss. 235, 189 So. 819.

When the first judgment was reversed and the costs taxed against appellee, the costs were not paid by appellee, who had sued in the trial court upon a pauper's affidavit, and an execution was issued against the successful appellant, who paid the costs on March 16, 1938. On December 28, 1939, soon after the publication of the opinion in the Meaut case, appellee filed a pauper's affidavit in this Court with a motion to send down the mandate, without payment of the costs by appellee as required by Rule 29 of this Court; and the mandate was sent as demanded. Now, as already stated, there is another motion and another pauper's affidavit demanding that the mandate be sent down from the second appeal.

To the present motion counsel for the successful appellant has responded that if for the second time the appellant is required to pay the costs, with no responsibility whatever on appellee in respect thereto, it would have been better, so far as out of pocket expenses are concerned, for appellant, the defendant in the trial court, to have at once paid the amount sued for to wit, $500, however unjust the demand rather than take the expense of litigation which these erroneous trials have imposed upon appellant, and which appellant alone must pay, without any fault on appellant's part; and appellant suggests that if appellee shall, as in the past, continue to procure judgments under erroneous records, as to which she has no responsibility in costs, there will be no discernible end to the costs which will be wrongfully imposed upon appellant, so that if appellant finally wins its case on the true merits, it will have lost it in costs, as a result of the errors brought into the trials by its opponent proceeding in forma pauperis.

It must have been considerations such as above mentioned, along with others, which caused this Court to promulgate on November 14, 1904, 83 Miss. XXVII, its Rule 30, reading as follows: " When costs are awarded in this court against the appellee, and there shall have been a return of nulla bona to an execution against him, and the costs shall be paid by appellant, no mandate shall issue upon the application of the appellee until he shall pay into the court, for the use of appellant the costs paid by him." This is the exact language of Rule 29 of the revised rules of 1916 in force at this date.

The rule was originally promulgated by this Court when its membership was composed of men unsurpassed in legal ability in the judicial history of this State. There existed then, as it had existed for years theretofore the statute, now Section 663, Code 1930, which allowed any citizen of this State to commence any suit or action or answer any rule for security for costs in any court, by suing in forma...

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10 cases
  • Roley v. Roley
    • United States
    • Mississippi Court of Appeals
    • May 18, 2021
    ...11-53-17 (Rev. 2019), "applies only to a court of original jurisdiction, and not to courts of appeal." Life & Cas. Ins. Co. v. Walters , 190 Miss. 761, 200 So. 732, 733 (1941) ; see Ivy v. Merchant , 666 So. 2d 445, 450 (Miss. 1995) ; Nelson , 498 So. 2d at 365-66 ; 5K Farms Inc. v. Miss. S......
  • Life & Casualty Ins. Co. v. Walters
    • United States
    • Mississippi Supreme Court
    • February 24, 1941
    ... ... as the Supreme Court said the jury should do. This presented ... a direct issue of fact between the appellant and the ... appellee, which issue of fact has been decided in favor of ... the appellee by the jury ... Life & ... Cas. Ins. Co. v. Lena Walters, 177 So. 47, 180 Miss ... 384; N.Y.Life Ins. Co. v. Turner, 97 So. 687 ... It is ... true that the law provides that the facts contained in the ... birth certificate shall be deemed as prima facie evidence ... Appellant ... admits in its brief ... ...
  • Roley v. Roley
    • United States
    • Mississippi Court of Appeals
    • May 18, 2021
    ...11-53-17 (Rev. 2019), "applies only to a court of original jurisdiction, and not to courts of appeal." Life & Cas. Ins. Co. v. Walters, 190 Miss. 761, 200 So. 732, 733 (1941); see Ivy v. Merchant, 666 So. 2d 445, 450 (Miss. 1995); Nelson, 498 So. 2d at 365-66; 5K Farms Inc. v. Miss. St. Tax......
  • 5K Farms, Inc. v. Miss. State Tax Comm'n
    • United States
    • Mississippi Court of Appeals
    • August 9, 2011
    ...that persons who are indigent may proceed in civil actions as paupers. However, according to Life and Casualty Insurance Co. v. Walters, 190 Miss. 761, 772–74, 200 So. 732, 733–34 (1941) and Nelson v. Bank of Mississippi, 498 So.2d 365, 365–66 (Miss.1986), the statute dealing with in-forma-......
  • Request a trial to view additional results

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