Mars v. Luff

• Decision Date: 22 February 1972
• Docket Number: No. 13132,13132
• Citation: 186 S.E.2d 768,52 A.L.R.3d 839,155 W.Va. 651
• Parties: , 52 A.L.R.3d 839 Nancy Jo MARS et al. v. Edward T. LUFF, Judge, etc. and Jean W. Green, Clerk, etc.
• Court: West Virginia Supreme Court

Page 768

186 S.E.2d 768

155 W.Va. 651, 52 A.L.R.3d 839

Nancy Jo MARS et al. v. Edward T. LUFF, Judge, etc. and Jean W. Green, Clerk, etc.

No. 13132.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 12, 1972.

Decided Feb. 22, 1972.

Syllabus by the Court

1. 'Mandamus lies to require a public official to perform a nondiscretionary legal duty.' Point 2, Syllabus, Humphrey v. Mauzy, W.Va. (181 S.E.2d 329).

2. When a party files an affidavit in accordance with and by reason of Code, 1931, 59--2--1, stating that he is pecuniarily unable to pay fees and costs, or counsel fees, the truth of the affidavit is not then to be questioned and the officer whose services may be demanded or required shall perform such services as are required by law, as if such fees for such services had been paid.

3. Due process of law prohibits a state from denying, solely because of financial inability to pay court fees and costs, access to its courts to indigents who, in good faith, seek judicial dissolution of their marriages.

4. One who knowingly swears falsely in an affidavit may be prosecuted for false swearing and upon conviction shall be punished as provided by law.

M. E. Mowery, Jr., Fairmont, for relators.

Edward T. Luff, pro se and for respondents.

CAPLAN, Judge.

In this original proceeding in mandamus the petitioners, Nancy Jo Mars, Margaret Alexander and Jacob Orval Vest, seek a writ to compel the respondents, Edward T. Luff, Judge of the Circuit Court of Barbour County, and Jean W. Green, Clerk of the Circuit Court of said county, to permit the petitioners to file their civil actions for divorce without payment of filing fees or costs and that said actions, when filed, be assigned regular consecutive civil action numbers in the Circuit Court of Barbour County. A rule was granted by this Court returnable October 12, 1971 at which time it was continued upon the motion of the parties. On January 12, 1972 the case was submitted for decision upon the petition; the answer of the respondents; the briefs of the parties; and upon the oral argument of counsel for the petitioners.

Each of the petitioners, seeking a divorce from the bonds of matrimony, filed a complaint in the office of the Clerk of the Circuit Court of Barbour County. Pursuant thereto, in lieu of payment of the fees and costs provided by Code, 1931, 59--1--11, as amended, they each filed in such office an affidavit as permitted in Code, 1931, 59--2--1, stating that they were pecuniarily unable to pay the necessary fees or costs. The affidavits of these petitioners are included as exhibits attached to the petition in this proceeding.

The civil action of petitioner Mars was filed by the clerk without payment of the filing fee but it was not assigned a consecutive file number in the civil docket book as prescribed by Rule 79(a), R.C.P. In the action of petitioner Margaret Alexander the filing fee has been waived but she has been required to make a deposit in the amount of such fee which obstensibly would be returned to her at a later date. In relation to petitioner Vest, the respondents have refused to file his complaint until he pays the filing fee.

While, as noted above, the individual civil actions received different treatment in the clerk's office, the principal allegations in the petition charge that the respondents failed to perform their nondiscretionary duties by refusing to accept the petitioners' affidavits and by further refusing to assign consecutive file numbers to civil actions which were filed without the payment of the fees. Contending that they have a clear legal right to the relief sought and that the respondents have a clear legal duty to so perform, the petitioners seek that writ of mandamus.

In their answer the respondents acknowledge that the petitioners filed affidavits alleging that they were pecuniarily unable to pay the customary fees and costs but that their sworn testimony before respondent Luff contradicts such affidavits. Further they say the provisions of Code, 1931, 59--2--1 are discretionary as to whether the court will permit an action to be filed without the payment of costs and fees. They conclude in their answer tht they will not waive the fees and costs on the mere allegation of inability to pay and that the petitioners are being misled by counsel.

It is the position of the petitioners that by virtue of the provisions of Code, 1931, 59--2--1 and consideration of constitutional rights and further by reason of Rule 79(a), R.C.P., the petitioners have a right to file their civil actions without paying fees and costs and further have a right to have said civil actions assigned a consecutive number on the docket book in the clerk's office. The respondents contend that they can question the truthfulness of the affidavits and can refuse to file such civil action if they believe that the petitioners can afford to pay the customary fees and costs.

The only question to be resolved in this proceeding is whether or not the petitioners are entitled to have their civil actions filed and...