Miazza v. Calloway

• Decision Date: 31 January 1876
• Citation: 74 N.C. 31
• Court: North Carolina Supreme Court
• Parties: ELIZA A. MIAZZA v. JAMES CALLOWAY and others.

74 N.C. 31

ELIZA A. MIAZZA

v.JAMES CALLOWAY and others.

Supreme Court of North Carolina.

January Term, 1876.

In granting an order for a person to sue in forma pauperis, it is sufficient compliance with the statute, Bat. Rev., chap. 17, sec 72, for the presiding Judge to be satisfied by a certificate of counsel or otherwise, that the plaintiff has an honest cause of action on which he may reasonably expect to recover.

An affidavit, certified by the Clerk of a Chancery Court of another State, without having the testimonial of the Judge of said Court, that the person so professing to be Clerk was such officer, and that he had authority to administer oaths, is not so legally authenticated as to authorize a Judge of this State to act under it.

CIVIL ACTION, tried before his Honor, Judge Furches, at Fall Term, 1875, of the Superior Court of WILKES county.

The following is substantially a statement of the case as sent to this court as a part of the record. The action was brought by the plaintiff against the defendants for the partition of a tract of land situated in Wilkes county, N. C. The plaintiff alleged that the plaintiff and defendants were tenants in common, and demanded an account of the rents and profits. The summons was returnable to Fall Term, 1875, of the Superior Court of said county, at which term, and before answering the complaint, the counsel for the defendants moved the court to revoke the order heretofore made allowing the plaintiff, who is a resident of the State of Mississippi, to sue in forma pauperis, upon the ground that the same had been improperly granted, as there was no sufficient affidavit of the plaintiff, as required by law, upon which to ground the order, and for other reasons, which will fully appear by reference to to said affidavit, petition and order. The defendants also moved the court to require the plaintiff to give the undertaking required by law or dismiss the action.

The complaint alleges that a partition of said land had been made in the year 1851, by order of the Court of Equity of Wilkes county on a proceeding in said court, in which the plaintiff's name had been used as a party plaintiff and as a feme sole, when she was at the time a feme covert, and that her name had been used in said action without her knowledge or consent.

His Honor refused to allow the motion, and the defendants appealed.

The following is a copy of the affidavit of the plaintiff:

“The plaintiff maketh oath that she is unable to give the sureties or make the deposit required by the laws of the State of North Carolina to enable her to prosecute the above entitled action against the defendants, and further that she is advised and believe that she has good cause of action against them. She therefore prays the honorable Court that she may be allowed to sue in forma pauperis.

Sworn to and subscribed before me this 29th day of May, A. D. 1875.

MURRAY PEYTON,

Chancery Clerk Hinds county, Miss.”

The following is the certificate of counsel:

“We, the undersigned practising attorneys, hereby certify that we have examined the case of the plaintiff and believe that she has a good cause of action against the defendants in law and in fact. This 16th day of August, 1875.

THOS. J. DULA,

S. S. WITHERSPOON.”

The following is the order of the Court made upon the affidavit:

In the above entitled action, upon reading the affidavit of plaintiff and the certificate of counsel, it is ordered that the plaintiff, Eliza A. Miazza, be allowed to prosecute her said action against the defendants, James Calloway and others, without giving security or making the deposit required by law. No officer shall require of her any fee, neither shall she recover any cost.

Armfield & Folk and Johnstone Jones, for the defendants .

Smith & Strong, contra .

RODMAN, J.

The plaintiff was allowed by the Judge to prosecute her action in forma pauperis, upon her presenting to him a certificate of two counsel to the effect that they had examined her case, and were of opinion that she had a good cause of action, and her affidavit of her poverty. The affidavit purported to have been sworn to before the clerk of the Chancery Court of Hinds county, Mississippi, and was authenticated by what purported to be the seal of that court. The defendant contends that the Judge exceeded his powers, because the statute, Bat. Rev. chap. 17, sec. 72, (Act of 1868-'69, chap. 96,) was not complied with.

That statute is in these words: “Any Judge, Justice of the Peace, or...