Antley v. Wilson

152 So. 2d 860, 1963 La. App. LEXIS 1606

• Court: Louisiana Court of Appeal
• Decided: May 13, 1963
• Docket: No. 1132
• Status: Published

Opinion

McBRIDE, Judge.

Plaintiff, who seeks workmen’s compensation benefits, has appealed from a judgment below dismissing his suit on the ground that the court lacked jurisdiction ratione personae as to defendant.

Appellee now moves to dismiss the appeal on the ground that plaintiff:

“ * * * is not entitled to sue in forma pauperis in that, as his petition discloses, he is not a citizen of the State of Louisiana, but is a resident of Elmhurst, Illinois, and the petition contains no allegation of citizenship or residence for a period of three (3) years on the part of this non-resident plaintiff, as required under Article 5181 of the Code of Civil Procedure.”

Appellee seeks to traverse in this court plaintiff’s right to conduct this litigation without the prior payment of costs. Under LSA-C.C.P. art. 5184 a party’s right to exercise the privilege granted by LSA-C.C.P. art. 5181 may be traversed, but this must be done by means of a rule to show cause, and the court is authorized to rescind its order if it finds that the party is not entitled to litigate without prior payment of costs. The rule to show cause, however, is to be taken in the trial court, and we, as an appellate court, have no power to initially pass on the right of a litigant to appear in forma pauperis. We must assume that when the judge below permitted the plaintiff to litigate, he had convinced himself that plaintiff comes within the terms and intent of LSA-C.C.P. art. 5181 et seq. Singleton v. First Nat. Life Ins. Co., La.App. 157 So. 620.

Therefore, the motion to dismiss the appeal is denied.

Motion denied.