United States ex rel. Randolph v. Ross

• Decision Date: 15 April 1924
• Docket Number: 3969.
• Citation: 298 F. 64
• Parties: UNITED STATES ex rel. RANDOLPH v. ROSS, District Judge.
• Court: U.S. Court of Appeals — Sixth Circuit

298 F. 64

UNITED STATES ex rel. RANDOLPH v. ROSS, District Judge.

No. 3969.

United States Court of Appeals, Sixth Circuit.

April 15, 1924

Bell &amp Phillips, of Memphis, Tenn., for petitioner.

Miles Waring & Walker, of Memphis, Tenn., for respondent.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

PER CURIAM.

Relator brought in a state court of Tennessee an action against the receivers of the Memphis Street Railway Company to recover for alleged negligent personal injuries. He gave in that court no bond for costs, but executed an affidavit in forma pauperis under the Tennessee statute, which affidavit is criticized here only as failing to state the nature of the cause of action. We pass by this criticism in view of the later history of the case.

The suit was removed to the federal District Court below, which has a rule of court to the effect that where suits are instituted in forma pauperis, and counsel for the plaintiff is an interested party in the result of the litigation, by reason of a contingent fee, depending upon the result, such suits cannot be prosecuted upon plaintiff's oath of his own poverty alone. Counsel so interested must likewise execute and file such an oath or give proper security for costs. It appearing in the court below that plaintiff's counsel had taken the case upon a contingent fee, dependent upon the amount of the recovery, the court required that counsel either give a cost bond or take the oath in forma pauperis, and that upon failure so to do the suit be dismissed.

This order was not complied with, and the suit was accordingly dismissed. In connection with the writ of error to this court, to review the order of dismissal, similar application was made for leave to proceed in forma pauperis under the federal statute (Act July 20, 1892, as amended June 25, 1910; 27 Stat. 252; 36 Stat. 866; Comp. St. Sec. 1626); and there was similar action by the court and refusal by the attorneys. Relator asks that respondent be required to accept plaintiff's affidavit in lieu of an appeal bond, and finally to allow the case to proceed to trial upon plaintiff's affidavit.

While the federal statute in forma pauperis does not in terms require a showing of poverty or inability to pay costs or give security on the part of any one except the plaintiff himself, it has been construed broadly enough to embrace all within its equity, and not excluded by its letter. In Reed v. Pennsylvania Co., 111 F. 714, 49 C.C.A. 572 which was a suit by a widow and administratrix for damages for the tortious killing of her husband, this court held defective an affidavit showing the poverty of the widow (administratrix) in not making a like showing on behalf of the children of the deceased, who were (with the widow) the parties in interest.

It has been repeatedly held in District Courts, under circumstances such as presented here, that the suit cannot be allowed to proceed in forma pauperis unless plaintiff's attorney makes the statutory affidavit. Feil v. Wabash Ry. Co (C.C.) 119 F. 490; Phillips v. L. & N. Ry. Co. (C.C.) 153 F. 795; Esquibel v. A.T. & S.F.R.R. Co. (D.C.) 206 F. 863; Silvas v. Arizona Copper Co. (D.C.) 213 F. 504. Such has hitherto been the practice followed by this court under our rule 17, which is substantially the same as that of the court below. The only federal authority to the contrary, cited by counsel or discovered by us, is United States ex rel. Payne v. Call, District Judge (C.C.A. 5) 287 F. 520, where it was held that, inasmuch as an agreement by an attorney to pay costs is void for champerty, the court will not attempt to force him to pay such costs, and therefore will not deny his client the right to appeal in forma pauperis.

The Payne Case is not persuasive of relator's contention upon the case before us. The formerly existing champerty laws of Tennessee were repealed in 1899 (Acts 1899, c. 173), and both sides properly concede that there is now no law of that state against contracts making attorney's fees contingent and dependent upon amount of recovery. See Shannon's Code 1917, notes to sections 3174 and 3175; Ducktown, etc., Co. v. Fain, 109 Tenn. 59, 61, 66, 70 S.W. 813; Heaton v. Dennis, 103 Tenn. 161, 52 S.W. 175. See the reservation in Robertson v. Cayard, 111 Tenn. 356, 77 S.W. 1056, made prior to Heaton v. Dennis.

Were we to assume that under the law of Tennessee a contract requiring the attorney to pay in whole or in part plaintiff's expenses of carrying on his litigation, or containing stipulation that the plaintiff shall not compromise or settle without the consent of his attorneys would be bad (5 R.C.L. 270, 276, 283; Davy v. Insurance Co., 78 Ohio St. 256, 85 N.E. 504, 17 L.R.A. (N.S.) 443, 125 Am.St.Rep. 694), we are not satisfied that the mere giving by an attorney of cost bond for the purpose of preventing a dismissal of the suit would contravene the public policy of Tennessee, since the repeal of her champerty statutes. There was here no agreement to pay plaintiff's expenses of suit, or forbidding compromise by relator alone, or even to give the bond in question. We are cited to no decision in that state to such effect. See authorities in note on champertous contracts between attorneys and clients, 83...