Waterman v. McMillan, 8360.
| Decision Date | 25 March 1943 |
| Docket Number | No. 8360.,8360. |
| Citation | 135 F.2d 807,77 US App. DC 310 |
| Parties | WATERMAN v. McMILLAN et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Before MILLER, VINSON, and EDGERTON, Associate Justices.
Appellant asks leave to prosecute her appeal in forma pauperis. The applicable statute1 provides that any citizen, upon filing the prescribed affidavit of poverty and of the merits of his appeal, "may, upon the order of the court, commence and prosecute or defend to conclusion any suit or action, or a writ of error or an appeal to the circuit court of appeals, or to the Supreme Court in such suit or action, including all appellate proceedings, unless the trial court shall certify in writing that in the opinion of the court such appeal * * * is not taken in good faith, without being required to prepay fees or costs * * *." Italics supplied. The petition, and its accompanying affidavit, in the present case, fail to show whether the District Court did or did not certify its opinion that the appeal was not taken in good faith. No showing is made, either, as to whether the matter was presented to the court or considered by it.
This court has not yet interpreted the statute or outlined the procedure to be followed under the statute. However, the matter has been carefully considered in other circuits2 and by the Supreme Court.3 The purpose of the statute is that the application to proceed in forma pauperis, accompanied by the affidavit, should promptly be made to the District Court, in the first instance, to enable that court, with its full and immediate knowledge of the facts, to determine whether the appeal has been taken in good faith, and if it reaches a contrary conclusion, to make its certificate accordingly. The Clerk of the District Court should promptly call the application to the Court's attention in order that no delay shall result which will prevent the timely filing of the notice of appeal.4 If the District Court does certify to a lack of good faith in the prosecution of an appeal, the certification must be given effect, at least to the extent of being accepted by this court as controlling, in the absence of some showing that the certificate was made without warrant, or was itself not made in good faith.5
If the District Court fails to act within a reasonable time, or if it denies the application to proceed in forma pauperis, and fails to certify that the appeal is not taken in good faith, then an application to proceed in forma pauperis may be...
To continue reading
Request your trial
-
Coppedge v. United States
...in which the statute has been interpreted. See, e.g., West v. United States, 94 U.S.App.D.C. 46, 222 F.2d 774; Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807; Murrey v. United States, 134 F.2d 956 (C.A.8th Cir.); Bayless v. Johnston, 127 F.2d 531 (C.A.9th Cir.). And see Rules of th......
-
Dorsey v. Gill
...45 Stat. 54 (1928), 28 U.S.C.A. § 832. 2 See Wells v. United States, 318 U.S. 257, 63 S.Ct. 582, 87 L.Ed. 746; Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807; Spruill v. Temple Baptist Church, 78 U.S.App.D.C. 324, 141 F.2d 3 See, generally, In re Rosier, 76 U.S. App.D.C. 214, 220-2......
-
Gale v. U.S. Dept. of Justice, Federal Bureau of Prisons
...Nemours & Co., 396 F.2d 939, 940 (D.C.Cir.1967), cert. denied, 396 U.S. 1030, 90 S.Ct. 585, 24 L.Ed.2d 525 (1970) citing, Waterman v. McMillan, 135 F.2d 807, 808 (1943), (D.C.Cir.1944), cert. denied, 322 U.S. 749, 64 S.Ct. 1160, 88 L.Ed. 1580 (1944); accord, Spruill v. Temple Baptist Church......
-
Cash v. United States
...in forma pauperis unless an application for such leave was first made to, and denied by, the District Court. Waterman v. McMillan, 77 U.S.App.D.C. 310, 135 F.2d 807 (D.C.Cir.1943), certiorari denied, 322 U.S. 749, 64 S.Ct. 1160, 88 L. Ed. 1580 6 Johnson v. United States, supra note 1, 352 U......