Tolson v. Lane

• Decision Date: 03 July 1978
• Citation: 569 S.W.2d 159
• Parties: Mae W. TOLSON, Appellant, v. Hon. Caswell P. LANE, Judge, Menifee Circuit Court, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 159

569 S.W.2d 159

Mae W. TOLSON, Appellant, v. Hon. Caswell P. LANE, Judge, Menifee Circuit Court, Appellee.

Supreme Court of Kentucky.

July 3, 1978.

Richard B. Olver, Northeast Kentucky Legal Services, Inc., Morehead, for appellant.

Caswell P. Lane, Judge, Menifee Circuit Court, Mount Sterling, for appellee.

CLAYTON, Justice.

This case presents the issue of whether a prospective litigant in the courts of this Commonwealth must demonstrate that she is totally without relatives and friends willing to assist her financially before she will be allowed to maintain a suit in forma pauperis under KRS 453.190. Particularly implicated is the decision of this court in Braden v. Commonwealth, Ky., 277 S.W.2d 7 (1955).

On June 10, 1977, the appellant, Mae W. Tolson, filed a motion in the Menifee Circuit Court seeking leave to proceed in forma pauperis in an action for dissolution of marriage. Accompanying the motion was an affidavit in which Mrs. Tolson stated she would be unable to bear the costs of the proposed suit due to her impoverished financial condition, which she declared thusly:

1. I am not employed; and have no source of income.

2. My husband does not provide me with any maintenance.

3. I do not have any cash on hand or money in a savings or checking account.

4. I do not own any real estate, stocks, bonds, notes, automobiles, or any other valuable property.

5. I live with my grandmother who supports me. My grandmother is receiving Social Security benefits in the amount of $101.80 per month.

6. I do not owe any debts.

Exactly one week later, the appellee, the Honorable Caswell P. Lane, Circuit Judge, denied the motion, stating without further elaboration that Mrs. Tolson had not satisfactorily demonstrated herself to be a "poor person" within the meaning of the statute.

On July 25, 1977, Mrs. Tolson filed a petition for writ of mandamus in the Court of Appeals, asking that Judge Lane be compelled to permit her to proceed in forma pauperis in the proposed dissolution action. Although ironically allowing her to proceed as a pauper in filing the petition, the Court of Appeals in an opinion and order dated February 3, 1978, denied the petition. Apparently relying on the proposition contained in Braden, supra, that before a party may proceed as a pauper "he must show he is without money or property and without relatives or friends who will assist him," Id. at 10, the court reasoned that because Mrs. Tolson had failed to show that her grandmother possessed no monetary assets or sources of income other than the meager Social Security benefits mentioned in her affidavit, Judge Lane's ruling was not clearly erroneous. On March 3 of this year, Mrs. Tolson appealed to this court. Inasmuch as we do not agree Braden should be so broadly construed, we reverse.

In Braden, decided during the troubled years of the 1950's, the petitioner had been charged with being a communist and convicted of the crime of sedition. Subsequent to his conviction, Braden moved the trial court to permit him to prosecute his appeal as a pauper, alleging a total net indebtedness after paying his legal fees of over $1500; following a hearing on the matter, the motion was denied. On petition for the equivalent of a writ of mandamus, this court, after setting forth the general proposition referred to above, proceeded to determine which, if any, of the possible sources of financial aid mentioned during the hearing Braden should be required to draw upon before being allowed to appeal in forma pauperis. In holding that the trial court...