Reed v. Pennsylvania Co.

• Decision Date: 09 October 1901
• Docket Number: 1,017.
• Citation: 111 F. 714
• Parties: REED v. PENNSYLVANIA CO.
• Court: U.S. Court of Appeals — Sixth Circuit

111 F. 714

REED v. PENNSYLVANIA CO.

No. 1,017.

United States Court of Appeals, Sixth Circuit.

October 9, 1901

Wellington Stilwell, for the motion.

Before LURTON and SEVERENS, Circuit Judges.

LURTON Circuit Judge.

The plaintiff in error has filed a transcript of the record from the court below, and a petition praying to be allowed to prosecute her writ of error in forma pauperis, as provided by the act of congress of July 20, 1892 (27 Stat. 252), and that she be relieved from making the deposit for costs required by rule 16 (31 C.C.A. c., 90 F. c.), and also the deposit for printing the record required by rule 23 (31 C. C. A. cii., 90 F. cii.).

The act of congress is in these words:

'Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that any citizen of the United States, entitled to commence any suit or action in any court of the United States, may commence and prosecute to a conclusion any such suit or action without being required to prepay fees or costs, or give security therefor before or after bringing suit or action, upon filing in said court a statement, under oath in writing, that, because of his poverty, he is unable to pay the costs of said suit or action which he is about to commence, or to give security for the same, and that he believes he is entitled to the redress he seeks by such suit or action, and setting forth briefly the nature of his alleged cause of action.

'Sec. 2. That after any such suit or action shall have been brought, or that is now pending, the plaintiff may answer and avoid a demand for fees or security for costs by filing a like affidavit, and willful false swearing in any affidavit provided for in this or the previous section, shall be punishable as perjury as in other cases.

'Sec. 3. That the officers of court shall issue, serve all process and perform all duties in such cases, and witnesses shall attend as in other cases, and the plaintiff shall have the same remedies as are provided by law in other cases.

'Sec. 4. That the court may request any attorney of the court to represent such poor person, if it deems the cause worthy of a trial, and may dismiss any such cause so brought under this act if it be made to appear that the allegation of poverty is untrue, or if said court be satisfied that the alleged cause of action is frivolous or malicious.

'Sec. 5. That judgment may be rendered for costs at the conclusion of the suit as in other cases: provided, that the United States shall not be liable for any of the costs thus incurred.'

1. Appellate proceedings are within the equity of this statute and not excluded by its letter. The language of the first section of the act is, 'may commence and prosecute to a conclusion,' and by the second section the act is made to apply at any stage of a pending action. Whether a writ of error or appeal be regarded as the commencement of a new action, or as a continuation of the original suit, it is equally plain that the benefits of the act are extended to the appellant or plaintiff in error, who may 'avoid a demand' for prepayment of costs, or for a security for their payment, by showing that, owing to his poverty, he is unable to pay such costs or secure same. This construction is the one placed upon this act by this court in a number of unreported instances, and is the construction which the act has generally received in this circuit. Thus, in Fuller v. Montague (C.C.) 53 F. 206, Judge Key held that the right to prosecute the suit 'to a conclusion' involved the right of appeal, and that upon the filing of the proper affidavit an appeal should be allowed without bond. In Brinkley v. Railroad Co. (C.C.) 95 F. 345, Judge Hammond held that the act applied to appellate proceedings, but denied the right of the plaintiff to prosecute an appeal in the particular case in forma pauperis, because the court deemed the plaintiff's suit 'unworthy of a trial,' and the appeal prayed vexatious and frivolous. The plaintiff applied to this court for a writ of mandamus to compel the allowance of an appeal. An alternative writ was denied, and an order was entered dismissing the petition, which recited that the writ was denied on the ground that Judge Hammond, 'in denying to the relator the right to an appeal as a poor...