Nelson v. Jadrijevics, 6351.

• Decision Date: 24 May 1932
• Docket Number: No. 6351.,6351.
• Citation: 59 F.2d 25
• Parties: NELSON v. JADRIJEVICS.
• Court: U.S. Court of Appeals — Fifth Circuit

59 F.2d 25 (1932)

NELSON v. JADRIJEVICS.

No. 6351.

Circuit Court of Appeals, Fifth Circuit.

May 24, 1932.

P. M. Milner, of New Orleans, La., and L. S. Carrington, of Ancon, Canal Zone, for appellant.

Chauncey P. Fairman, of Cristobal, Canal Zone, for appellee.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

SIBLEY, Circuit Judge.

Josef Jadrijevics, the plaintiff below, recovered judgment at law in the District Court of the United States for the Canal Zone against H. B. Nelson, doing business under the name of H. B. Nelson Construction Company, for a personal injury received while employed by Nelson, and Nelson appeals.

Shortly after suit was filed a motion was made to require Jadrijevics to give bond for costs as a nonresident plaintiff, in reply to which Jadrijevics under oath and supported by his attorney's certificate set up his helpless and impoverished condition, rendering it impossible to give bond or pay costs, and prayed to be permitted to prosecute his suit in forma pauperis. The court denied the motion to require bond, and granted leave to proceed in forma pauperis under section 819 of the Code of Civil Procedure of the Canal Zone. This action is assigned as error. On March 22, 1907, President Roosevelt promulgated as of force in the Canal Zone the Code of Civil Procedure, section 819 of which reads: "Any judge or clerk of any circuit or district court may authorize any person to sue as a pauper in their respective courts, when he files an affidavit setting forth facts showing that he has good cause of action, and that he is unable to procure a bond when such bond is required, accompanied by a certificate of a practising attorney in good standing that the plaintiff has fully stated the facts of his claim to him and that the attorney believes he has a good cause of action, and that he further believes the plaintiff is unable to pay the costs of the action or procure bond." Section 2 of the act of August 24, 1912, 37 Stat. p. 561 (48 USCA § 1309), enacted that all laws, orders, regulations, and ordinances promulgated in the Canal Zone by order of the President for the government of the Zone are ratified and confirmed as valid and binding until Congress shall otherwise provide. Section 8 (37 Stat. p. 565) dealt with the substitution of the present district court for the prior courts, and declared: "The rules of practice in such district court shall be prescribed or amended by order of the President." Section 9 (37 Stat. 565) provided further: "All existing laws in the Canal Zone governing practice and procedure in existing courts shall be applicable and adapted to the practice and procedure in the new courts." The amending Act of September 21, 1922, 42 Stat. 1004, 1005, § 2 (48 USCA § 1344), gives the President the express power also to repeal rules of practice. Section 819 of the Code of Procedure is applicable to this case if not repealed by the President under his rule-making powers. It is argued that the Code of Civil Procedure is a law adopted by Congress by the act of August 24, 1912, which can be altered only by Congress, and that the President's power to make, amend, and repeal rules of practice is to be exercised in subordination to the Code. See McConaughey v. Morrow, 263 U. S. 39, 44 S. Ct. 78, 68 L. Ed. 153; 34 Op. Attys. Gen. 475. We find no occasion to decide the point, because no rule subsequently promulgated by the President expressly repeals section 819, and none now in force is in such irreconcilable conflict with it as to raise a question of implied repeal. Rule 7 promulgated by executive order of January 9, 1920, on the subject of suits in forma pauperis provided that any citizen of the United States might prosecute or defend his suit without prepaying costs or giving bond upon making a stated oath. The right thus given to the citizen to proceed without the consent of the judge does not nullify the authority given the judge by section 819 to permit any person to sue as a pauper upon the conditions there specified. Each provision may have application in circumstances appropriate to it. If it be assumed that this plaintiff is not a citizen but an alien, the judge had power under section 819 to permit him to sue as a pauper. Nor is section 819 repugnant to the several orders providing for the prepayment of or giving bond for costs, for they establish a general rule to which suits in forma pauperis are an exception. This is expressly recognized in rule 27 of the order of December 20, 1921. Rule 19 of the order of July 28, 1925, under which defendant's motion for bond was made, is permissive only, and gives the defendant no absolute right to have the bond. It reads: "The court may at any time before trial require a non-resident plaintiff to file an undertaking for costs. The defendant may at any time move for security for costs and when the motion is made the nonresidence must be shown by affidavit unless it is admitted or appears upon the papers or from the record." Compare Panama R. Co. v. Curran (C. C. A.) 256 F. 768. Although this plaintiff had not originally sued in forma pauperis, upon satisfying the court according to section 819 that poverty had come upon him and that he had probably a good cause of action, he ought not to be denied a hearing for want of a bond which he is unable to give.

The petition alleged on information that H. B. Nelson Construction Company, which had employed plaintiff in certain construction work in the Canal Zone, was a corporation or limited company. On the trial it apeared that it was originally a partnership, but, at the time plaintiff was employed and injured, H. B. Nelson, one of the former partners, was conducting the business alone under the old name. The petition was amended over objection to describe the person sued as H. B. Nelson, doing business as H. B. Nelson Construction Company. Section 103 of the Code of Civil Procedure provides: "The Court shall, in furtherance of justice, and on such terms, if any, as may be proper, allow a party to amend any pleading or proceeding and at any stage of the action, in either Circuit Court or Supreme Court, by adding or striking out the name of any party, either plaintiff or defendant, or by correcting a mistake in the name of a party, or a mistaken or inadequate allegation or description in...