State ex rel. Steinmeyer v. Coburn

• Decision Date: 09 May 1984
• Docket Number: No. WD,WD
• Parties: STATE of Missouri at the relation of Marlin W. STEINMEYER, Relator, v. The Honorable H. Michael COBURN, Judge, Division Nine, Sixteenth Judicial Circuit of Missouri, Respondent. 35141.
• Court: Missouri Court of Appeals

Page 366

671 S.W.2d 366

STATE of Missouri at the relation of Marlin W. STEINMEYER, Relator, v. The Honorable H. Michael COBURN, Judge, Division Nine Sixteenth Judicial Circuit of Missouri, Respondent.

No. WD 35141.

Missouri Court of Appeals Western District.

May 9, 1984.

James S. Formby, Kansas City, for relator.

P. John Brady, Charles E. Patterson, Thomas Wagstaff, Kansas City, for respondent.

Before NUGENT, P.J., and DIXON and BERREY, JJ.

NUGENT, Presiding Judge.

Relator Marlin Steinmeyer, a plaintiff in the underlying action brought an original proceeding in mandamus to compel the respondent judge to set aside his orders of May 20 and July 11, 1983. In those orders, respondent reversed his previous order of February 18, 1983, granting relator leave to appeal in forma pauperis, that is, "without prepayment of fees and costs or the costs of a stenographic transcript or preparation of the legal file or of printing the record." In this mandamus proceeding, relator also seeks to compel the respondent judge to order the official court reporter of his court to prepare a stenographic transcript for the appeal of the underlying case. We issued our alternative writ on September 19, 1983. The cause was argued and submitted and thereafter resubmitted on briefs to this division, one judge of the original division having recused himself. We now make our alternative writ peremptory.

In the underlying action, Marlin Steinmeyer and his former wife, Janet Steinmeyer, sued defendants for medical malpractice. The jury returned a verdict in favor of the defendants. The judgment was entered on November 10, and the Steinmeyers filed separate motions for new trial on November 16 and 17, 1982. On February 8, 1983, the court denied the Steinmeyers' motions for new trial.

Relator's counsel telephoned counsel for some of the defendants on February 17 and 18, 1983. He asked them if they wanted an oral hearing on relator's motion to file an appeal in forma pauperis. They answered that they did not. Then, on February 18, relator filed his motion supported by affidavits, and the respondent signed the following order that day:

Plaintiff herein, having filed his motion for leave to appeal in forma pauperis without prepayment of fees and costs and the Court having duly considered the same and the affidavits of plaintiff and his attorney attached thereto and being duly advised in the premises,

It is Ordered that the motion of plaintiff be granted and that plaintiff may take and prosecute his appeal without prepayment of fees and costs or the costs of the stenographic transcript or preparation of the legal file or of printing the record.

Relator immediately filed his notice of appeal along with the above order waiving the filing fee. See Rule 81.04(c). ¹

On February 24, the defendants filed suggestions in opposition to plaintiff's motion for leave to appeal in forma pauperis. On February 28, defendants moved the court to reconsider its February 18 order. In their suggestions, defendants asserted that they were not given an opportunity to respond to plaintiff's motion before the court granted the motion. Defendants asserted that when Steinmeyer's lawyer called them and asked whether they desired an oral hearing on his motion, they said that they did not, considering the time it would take and believing that the issue could be adequately addressed in written suggestions.

On March 3, relator filed suggestions in opposition to defendants' motion to reconsider contesting the trial court's jurisdiction. Relator argued that the trial court had lost jurisdiction of the case when relator filed his notice of appeal. Relator's counsel, the respondent judge, and the court reporter exchanged various letters and telephone calls regarding the preparation of and payment for the transcript on appeal. The parties do not agree on the substance of the telephone calls.

On May 20, the respondent judge entered an order sustaining defendants' motion for reconsideration of relator's motion to appeal in forma pauperis. In that order, the respondent reversed his February 18 order granting relator leave to appeal in forma pauperis and ordered relator to pay all costs, fees and charges to perfect his appeal within twenty days of May 20. In the May 20 order, the respondent stated that he could assume jurisdiction at that time because "the matter of whether to allow an appeal in forma pauperis ... involves purely ministerial actions by the court and not judicial acts." Respondent also stated in the order that he had informed relator's counsel on February 18 that he could proceed in forma pauperis provided that defendants' counsel agreed and that someone on behalf of relator Marlin Steinmeyer advanced to the court reporter the full sum necessary to prepare the transcript. Respondent also stated that relator's counsel represented to the court that defendants' counsel had all agreed to allow appeal in forma pauperis and that relator's counsel would advance the money for the appeal.

Respondent issued a supplemental order on July 11, 1983. He attached to the order documents which he found to indicate that "the state of Missouri will not pay for transcripts on appeal in a civil case."

On August 11, 1983, relator Marlin Steinmeyer filed a petition for a writ of mandamus in this court. On August 25, defendants below filed suggestions in opposition to relator's petition for writ of mandamus. With respect to their February 17 and 18 conversation with relator's counsel about the February 18 in forma pauperis motion, defendants stated in their suggestions that rather than asking defendants' counsel whether they would agree to an appeal in forma pauperis, relator's counsel asked defendants' counsel whether they wanted an oral hearing on the plaintiff's motion. All defendants' counsel answered that they believed that the issue could be addressed adequately in written suggestions.

We issued our alternative writ on September 3 and on October 3 respondent filed his answer along with a motion to dismiss and suggestions in support thereof.

In his petition for a writ of mandamus, relator seeks an order compelling respondent to revoke his May 20 and July 11 orders. He argues that because a notice of appeal and the February 18 order waiving the docket fee had been filed, respondent was without jurisdiction to enter those judicial orders. Relator asserts that the orders were "judicial acts" as opposed to "ministerial acts." To enforce compliance with respondent's February 18 order, relator also seeks to compel the respondent to issue an order directing the official court reporter of Division 9 to prepare a stenographic transcript on appeal. Relator contends that he has a right based on the judge's February 18 order to prosecute his appeal in forma pauperis. He argues that statutes and case law vested the judge with authority to grant relator leave to file in forma pauperis if the judge found from the evidence that relator was a "poor person" within the meaning of Rule 77.03. Relator also asserts that § 485.100 provides for compensation by the state to the court reporter for preparing the transcript on appeal.

The first question is whether the respondent circuit judge had the authority on February 18 to grant relator's motion to file his civil appeal in forma pauperis and to allow relator to "take his appeal without prepayment of fees and costs or the costs of the stenographic transcript or preparation of the legal file or of printing the record." We hold that he did.

Rule 77.03 and § 514.040 and § 485.100 provide the bases for the court's authority to issue such an order. Rule 77.03 is as follows:

If the plaintiff is a poor person, the court may permit the plaintiff to commence and prosecute the civil action without making a cost deposit or furnishing security for costs.

Section 514.040 provides:

If any court shall, before or after the commencement of any suit pending before it, be satisfied that the plaintiff is a poor person, and unable to prosecute his or her suit, and pay the costs and expenses thereof, such court may, in its discretion, permit him or her to commence and prosecute his or her action as a poor person, and thereupon such poor person shall have all necessary process and proceedings as in other cases, without fees, tax or charge; and the court may assign to such person counsel, who, as well as all other officers of the court, shall perform their duties in such suit without fee or reward; but if judgment is entered for the plaintiff, costs shall be recovered, which shall be collected for the use of the officers of the court.

Although a court is not required to allow a plaintiff in a civil action to appeal in forma pauperis, a court may in its sound discretion permit the plaintiff to appeal in forma pauperis upon its finding that such plaintiff is a poor person. ² See Standley v. Western Auto Supply Co., 319 S.W.2d 924, 926 (Mo.App.1959); State ex rel. Miller v. Smith, 120 S.W.2d 184, 185 (Mo.App.1938); Rule 77.03 and § 514.040. Thus, respondent in this case had well-established authority to allow the relator to appeal in forma pauperis.

In State ex rel. La Rue v. Hitchcock, 171 Mo.App. 109, 122, 153 S.W. 546, 552 (1913), the court held that "it was within the power, as well as the duty, of the ... circuit court to order the stenographer of that court ... to furnish" a transcript for appeal where the circuit court had previously entered an order allowing the plaintiff in the underlying action to sue as a poor person. The Hitchcock court made peremptory its writ of mandamus commanding the trial judge to order the court stenographer to furnish the relator (plaintiff below) a transcript for his appeal.

In its interpretation of § 2261 R.S.Mo.1909 (now § 154.040), the Hitchcock court held that the court stenographer must furnish the transcript gratis because the court stenographer was an officer of the court. Because of § 485.100, a court...