The Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company v. Jacobs

• Decision Date: 23 January 1894
• Docket Number: 1,075
• Citation: 36 N.E. 301,8 Ind.App. 556
• Parties: THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. JACOBS
• Court: Indiana Appellate Court

36 N.E. 301

8 Ind.App. 556

THE PITTSBURGH, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY v. JACOBS

No. 1,075

Court of Appeals of Indiana

January 23, 1894

From the Clark Circuit Court.

Judgment affirmed, at costs of appellant.

S Stansifer, for appellant.

J. H Smith and J. K. Marsh, for appellee.

OPINION

LOTZ J.

The appellee brought this action to recover damages for personal injuries sustained by her through the alleged negligent conduct of the appellant.

In the court below, the appellant filed an affidavit showing that the appellee was a nonresident of the State of Indiana, and moved that she be required to give security for the costs of the action. This motion was sustained, and the appellee was ordered to file a cost bond within a fixed time. The appellee then filed and presented to the court her affidavit showing that she was a poor person and had not sufficient means to prosecute her action, being wholly without money or property of any kind whatever. On this showing, she moved that she be permitted to prosecute her action as a poor person.

The appellant filed a counter-affidavit, from which it appears that the appellee was a resident of the city of Louisville, in the State of Kentucky, and that appellant's railroad extends to and into said city, and that its principal office and officers are located there; that appellee could sue in the courts of the State of Kentucky and obtain jurisdiction over the appellant therein.

The court sustained appellee's motion, and ordered that she be permitted to prosecute her suit as a poor person, without bond for costs, and appointed an attorney to assist her in said suit; and further ordered that the attorney serve without compensation from the county. This order and decision of the court is one of the errors assigned in this court.

The identical question here presented has not, to our knowledge, ever been decided in this State. The courts of this State are open equally to all residents of the State, with, perhaps, the bare exception of infants or persons under certain legal disabilities.

In the case of infants it is provided that before any process shall issue some responsible person shall consent in writing to appear as next friend, and such next friend shall be responsible for costs. Section 256, R. S. 1881.

The purpose of this statute, possibly, is to protect the estate of the person under disability rather than to secure the payment of the costs to the officers and person entitled to them.

Section 260, R. S. 1881, is as follows: "Any poor person, not having sufficient means to prosecute or defend an action, may apply to the court in which the action is intended to be brought, or is pending, for leave to prosecute or defend as a poor person. The court, if satisfied that such person has not sufficient means to prosecute or defend the action, shall admit the applicant to prosecute or defend as a poor person, and shall assign him an attorney to defend or prosecute the cause, and all other officers requisite for the prosecution or defense, who shall do their duty therein without taking any fee or reward therefor from such poor person."

It is apparent from the reading of this section, that the courts are equally open to the rich and the poor. If a person be too poor to employ counsel to prepare and bring his action he may, nevertheless, appear in court and have counsel assigned him for that purpose, or having instituted his action or being made a defendant, he may have counsel assigned him to further prosecute or defend. Whatever is done for such a person under such circumstances is a clear gratuity, a charitable act.

By section 589, R. S. 1881, it is provided that "Plaintiffs who are not residents of this State, before commencing any action, shall file in the office of the clerk a written undertaking * * * for the payment of all costs."

If a nonresident plaintiff institute an action in the courts of this State, he is liable to have it dismissed for want of security for costs. Can such plaintiff avail himself of section 260, supra, and prosecute his action in forma pauperis? If so, then gratuity and charity may be extended to the unfortunate poor of other States, as well as our own. Is this the purpose of the statute? At common law the right to sue as a pauper did not exist in actions at law. But in equity, where the costs rested with the chancellor, it has been said that as a general rule "there is no sort or condition of persons who may not sue in a court of chancery; and this rule extends to the most distressed pauper, and that without being required to give security for costs." 8 Am. and Eng. Encycl. of Law, 545; 1 Daniel Ch. Pl. 37.

Under a statute of New York, similar to our own, in 10 Abb. N. Cas. 80, anonymous, it was said by Barrett, J.: "A nonresident should not be allowed to sue in forma pauperis. It could never have been the legislative intent to extend the privileges of the act to objects of charity from all quarters of the globe. The law even discriminates against nonresidents generally, so far as to compel them to give security for costs. Then such statutes should be strictly construed against the appellant (2 Hill 412)."

In Christian v. Gouge, 10 Abb. N. Cas. (N. Y.) 82, Sedgwick, J., said: "The letter and policy of the acts in relation to security to be given by nonresident plaintiffs, indicate that it is not unjust or impolitic to refuse leave to a nonresident to sue here, unless he give security for costs, even though in fact he is pecuniarily responsible. He must furnish some one who will respond for him in this State. If he can not, the State does not furnish him the means of pursuing a remedy here. It seems to me inconsistent with this policy, that an irresponsible non-resident should be allowed to sue without even a liability for costs."

In Porter v. Jones, 68 N.C. 320, the plaintiff was a resident of the State of Tennessee, and the statute of North Carolina enacts that any judge of the Superior Court may authorize any person to sue as a pauper when he shall comply with the terms of the act. It was held that a citizen of a sister State stands upon a very different footing from a citizen of a foreign government, and that the expression "any person" was broad enough to permit the plaintiff to sue as a poor person.

In Wright, Admr., v....