Under the Act of July 20, 1892, c. 209, 27 Stat. 252, as amended
by the Act of June 25, 1910, c. 435, 36 Stat. 866, the allowance of
the right to sue
in forma pauperis by defendants and by
either party in appellate proceedings depends upon the exercise of
the same discretion as to the meritorious character of the cause to
the same extent provided under the statute before amendment as to
plaintiffs bringing suit in the court of first instance.
Although the affidavit as to poverty may be sufficient, the
allowance of the right to prosecute a writ of error from this Court
in forma pauperis is subject to the exercise of judicial
discretion to determine the good faith of the applicant and the
meritorious character of the cause.
In the first case coming to the attention of the Court, under a
statute prescribing procedure, an omission, probably inadvertent,
may be overlooked without making a precedent for future cases.
Although the petition required by the statute providing for the
right to prosecute a writ of error from this Court
in forma
pauperis has been omitted, the transcript which it is proposed
to docket if the petition is allowed discloses no ground
sufficiently meritorious for the allowance of the right, and the
petition is denied.
Frivolous and fruitless litigation should cease.
The facts, which involve the construction and application of the
federal statute relative to conducting cases
in forma
pauperis, are stated in the opinion.
MR. CHIEF JUSTICE White delivered the opinion of the Court.
Prosecuting a writ of error in this case, allowed by a circuit
judge, the plaintiff in error asks to be permitted to docket the
cause and conduct the proceedings
in forma
Page 236 U. S. 44
pauperis. The matter is governed by the Act of July 20,
1892, c. 209, 27 Stat. p. 252, as amended by the Act of June 25,
1910, c. 435, 36 Stat. 866. We summarize their provisions,
reproducing, however, in full, the first section as amended by the
Act of 1910, as that was the only portion of the original act
changed by the amendment, printing in italics the provisions added,
and putting in brackets the words omitted in the amendment.
"SEC. 1. That any citizen of the United States, entitled to
commence
or defend any suit or action,
civil or
criminal, in any court of the United States, may,
upon the
order of the court, commence and prosecute
or defend
to conclusion any [such] 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 or writ of error is not taken in good
faith, without being required to prepay fees or costs
or
for the printing of the record in the appellate court, or give
security therefor, before or after bringing suit or action,
or
upon suing out a writ of error or appealing, upon filing in
said court a statement under oath in writing that, because of his
poverty, he is unable to pay the costs of said suit or action
or of such writ of error or appeal, [which he is about to
commence] or to give security for the same, and that he believes
that he is entitled to the redress he seeks by such suit
or action
or writ of error or appeal, and setting forth
briefly the nature of his alleged cause of action
or
appeal."
The second section provides for permission to proceed as a poor
person after commencement of suit. The third governs the conduct of
court officers in cases coming under the statute. The fourth
authorizes the appointment by the court of an attorney to represent
poor persons "if it deems the cause worthy of a trial," and
empowers the court at any stage after permitting proceedings as a
poor person to dismiss the suit "if it be made to appear that the
allegation
Page 236 U. S. 45
of poverty is untrue, or if said court be satisfied that the
alleged cause of action is frivolous or malicious." The fifth and
last section points out the manner of entering judgment concerning
costs in cases under the statute.
Prior to the amendment of 1910, on the face of the statute,
three things were certain: (a) that the statute imposed no
imperative duty to grant a request to proceed as a poor person, but
merely conferred authority to do so when the fact of poverty was
established and the case was found not to be frivolous -- that is,
was considered to be sufficiently meritorious to justify the
allowance of the request, (b) that there was no power to grant such
a request when made by a defendant, and (c) that there was also no
authority to allow a party to proceed as a poor person in appellate
proceedings in this Court or the circuit courts of appeals.
Bradford v. Southern Railway, 195 U.
S. 243. Clarifying the first section as amended by these
considerations, it becomes clear that the sole change operated by
the amendment was to bring defendants within the statute, and to
extend its provisions so as to embrace, first, proceedings on
application for the allowance of a writ of error or appeal to this
Court and the circuit court of appeals, and second, the appellate
proceedings in such courts. This being true, it is clear that, as
to the new subjects, the allowance of the right in those cases was
made to depend upon the exercise of the same discretion as to the
meritorious character of the cause to the same extent provided
under the statute before amendment. That is to say, there is no
ground for a contention that, at one and the same time, the statute
brought certain proceedings within its scope and yet exempted them
from its operation. Indeed, this conclusion is not alone sustained
by the implication resulting from the fact that the safeguards
provided for the exercise of the authority found in the statute as
originally enacted were not changed by the amendment, but further
plainly results from the express provisions of the amended
section
Page 236 U. S. 46
manifesting the purpose to subject the granting of the right in
both the new instances provided for to the exercise of the judicial
discretion to determine the poverty and good faith of the applicant
and the meritorious character of the cause in which the relief was
asked.
Under the assumption that the affidavit as to poverty is
sufficient, we come to the merits, in other respects, of the
application. There is a failure, however, to comply with the
requirement that a statement be made briefly setting forth the
cause of action relied upon, since the petition only refers to an
assignment of errors which it is said will be found in the written
transcript which it is proposed to docket when the request the
petitioner makes is allowed. As this is the first case coming to
our attention under the amended statute and the omission was
probably inadvertent, without making a precedent for future cases,
we consider the case for the purpose of determining whether it is
of such a character as to justify the allowance of the relief
prayed.
On October 14, 1909, Robert D. Kinney, the petitioner, caused a
writ of attachment to issue against the defendant to recover
damages in the amount of $18,309.84. This writ was made returnable
before the Circuit Court of the United States for the District of
Massachusetts on the first Monday of December following -- that is
to say, on December 6th, 1909. On October 26th, service was made of
the writ, together with a declaration concerning the claim for
damages. Before the return day (December 6th, 1909), Kinney left
with the clerk the writ and the declaration, along with an order
directing the clerk to enter the action and his appearance therein.
The return day stated in the writ having expired, and the defendant
not having entered its appearance, Kinney, on the 20th of December,
1909, instructed the clerk to enter a default against the
defendant, and some days thereafter, that is, on December 27th,
1909, he sent to the clerk a written motion for entry of judgment,
with
Page 236 U. S. 47
directions to assess the plaintiff's damages at $19,026.98 as
per an enclosed statement. The clerk declined to comply on the
ground that the writ was made returnable on a day other than the
first day of some statutory term of the court, as required by the
rules. When the first day of the next term arrived -- that is,
February 23, 1910 -- the clerk caused the case to be entered, and
on the following day the defendant appeared and some time after
filed a demurrer and answer.
Without taking further steps in the cause, Kinney commenced an
action in the Eastern District of Pennsylvania against the surety
on the bond of the clerk to recover damages alleged to have been
suffered by a violation of duty committed by the clerk in failing
to enter the writ of attachment, and to note the default under the
circumstances which we have stated. After issue joined, the case
was decided against Kinney on two grounds -- first, that the action
of the clerk complained of was rightful, and second, that, even if
it was assumed to be wrongful, there was no proof of damage
suffered, as there was nothing to show that the corporation against
whom the attachment was issued had any funds in its hands belonging
to the defendant. 182 F. 1005. In the Circuit Court of Appeals for
the Third Circuit, on April 12th, 1911, this judgment was affirmed,
the court resting its conclusion solely on the ground that the
action of the clerk in refusing to enter the judgment as requested
was rightful, and therefore no cause of action in favor of Kinney
arose therefrom. 186 F. 477. And in this Court, to which the case
was brought on error, the judgment of the court of appeals was, on
motion, affirmed December 18th, 1911.
222 U.
S. 283. On February 15 following, in the attachment suit
in the District Court of Massachusetts, Kinney asked that the
default as originally asked by him be entered
nunc pro
tunc. The motion was set down for hearing for a day in March,
and, the petitioner not appearing, on hearing defendant,
Page 236 U. S. 48
it was dismissed. In the meanwhile, pending action on this
petition, on February 28, a new attachment proceeding was sought to
be begun by Kinney based upon the theory of the existence of a
judgment against the defendant in the original proceeding, and a
writ of attachment which was made returnable on a day other than
the first day of the following term was presented to the clerk with
the request that he affix the seal of the court to it, which he
declined to do on the ground of an improper return day. And the
district court refusing to command the clerk to comply with the
request, mandamus proceedings were commenced in the Circuit Court
of Appeals for the First Circuit to compel the clerk to comply. The
court refused the mandamus upon the ground that, because of the
wrong return day, the clerk had rightfully refused, supporting its
conclusions by the same line of reasoning which caused the District
Court in the Eastern District of Pennsylvania and the Circuit Court
of Appeals for the Third Circuit in the cases to which we have
previously referred to decide that the original action of the clerk
in refusing to file because of a wrong return day was right. 202 F.
137. Thereupon the suit before us was commenced in March, 1913, in
the District Court of Massachusetts, to recover on a judgment
against the defendant upon the assumption that such a judgment had
been rendered in the original suit, and after issue joined, there
was a judgment in favor of the defendant company on the ground that
there was no such judgment in said suit, the court again directly
upholding the rightfulness of the action of the clerk in having
originally refused to enter the cause because of the wrong return
day. This judgment was affirmed by the circuit court of appeals in
a careful opinion sustaining the same view, 214 F. 766, and it is
this judgment that is intended to be brought under review in the
proceedings, which it is prayed may be conducted
in forma
pauperis. And the assignments of error
Page 236 U. S. 49
but challenge, for reasons which it is unnecessary to
recapitulate, the lawfulness of the action of the clerk in
originally refusing to comply with the request to file the
attachment proceedings and enter the default judgment and assess
the damages before the first day of the term following the issue of
the writ, and therefore but assail all the various opinions and
judgments to which we have referred in stating the history of the
case.
Under these circumstances, we think it is manifest that no
ground is shown for the allowance of the prayer of the petition.
The case proceeds upon the erroneous assumption that a judgment was
rendered in a cause which is yet pending and undisposed of -- in
other words, the case assumes as a basis for relief the existence
of that which does not exist. It seeks collaterally to attack that
which was only susceptible of being assailed directly. It
disregards the conclusive effect of the judgments as to the want of
merit in the claim rendered in the courts of the First and Third
Circuits, and by implication disregards the legal consequences
necessarily arising from the former action of this Court. Indeed,
irrespective of these considerations, to the end that frivolous and
fruitless litigation may cease, we say that we are clearly of the
opinion that the absolute want of merit in the case is demonstrated
by the views expounded in the opinions of the courts of the First
and Third circuits to which we have referred concerning the
rightfulness of the action of the clerk in refusing to file the
papers and enter the judgment for damages under the circumstances
disclosed.
The prayer of the petition is denied.