D'ZESATI v. Poole

329 S.E.2d 280, 174 Ga. App. 142, 1985 Ga. App. LEXIS 1766

• Court: Court of Appeals of Georgia
• Decided: March 8, 1985
• Docket: 68979
• Status: Published

Opinions

Deen, Presiding Judge.

By Order dated June 20,1984, an extension of time of thirty days was granted the appellant, Eileen Bradley D’Zesati, to file a brief in the above-captioned appeal. By the same Order, the appellant’s request that her case be transferred to the Federal Court was denied.

The appellant has also filed with this Court her “Motion for Leave to Proceed in Forma Pauperis.” The trial court denied the same motion made by the appellant below, stating in its Order that her affidavit “shows on its face that [appellant] is not a pauper in that she owns property approximately valued at $49,950.00.” Presumably, it is from this order that D’Zesati now appeals.

The proper forum for determining the truth of a pauper’s affidavit is in the trial court, not in this court. See Mark Trail Campgrounds v. Field Enterprises, 140 Ga. App. 608 (1) (231 SE2d 468) (1976). See also OCGA § 5-6-47 (b). The trial court’s ruling on all issues of fact concerning the ability of a party to pay costs is final, OCGA § 9-15-2, and not subject to review. Grace v. Caldwell, 231 Ga. 407, 409 (4) (202 SE2d 49) (1973); Hubbard v. Farmers Bank, 153 Ga. App. 497, 499 (265 SE2d 845) (1980). Further, in this case the trial court’s holding was supported by evidence of appellant’s assets. See generally Whitus v. Caldwell, 229 Ga. 604 (193 SE2d 613) (1972); Tootle v. Player, 225 Ga. 431, 433 (4) (169 SE2d 340) (1969).

It appears that the court below ruled on the appellant’s motion without conducting a hearing, contrary to the provisions of OCGA § 9-15-2 (b). However, the hearing requirement of that Code section presupposes that a proper affidavit was filed by the party claiming indigency under OCGA § 9-15-2 (a). The purported affidavit of the appellant actually was invalid, as it did not contain a jurat.

“A signed statement of facts, purporting to be the statement of the signer, followed by the certificate of an officer, authorized to administer oaths that it was sworn to and subscribed before him, is a lawful affidavit.” (Emphasis supplied.) Phoenix Air Conditioning Co. v. Al-Carol, 129 Ga. App. 386, 387 (199 SE2d 556) (1973). Further, “ ‘[i]n the absence of a valid jurat, a writing in the form of an affidavit has no force, no validity, amounts to nothing, when standing alone, or when construed in connection with’ other evidence. Laurens County v. Keen, 214 Ga. 32, 35 (102 SE2d 697). To make a valid affidavit the affiant ‘must swear to it, and the fact of his swearing must be certified by a proper officer.’ In Re Bennett, 233 FSupp. 423. ‘In order to make an affidavit there must be present the officer, the affiant, and the paper, and there must be something done which amounts to the administration of an oath.’ Carnes v. Carnes, 138 Ga. 1, 6 (74 SE 785).” Gruber v. Fulton County, 111 Ga. App. 71, 77 (140 SE2d 552) (1965).

In short, no hearing on the matter of the appellant’s claimed in-digency was required, and the trial court’s determination that the appellant was not a pauper is supported by the appellant’s admission throughout the record that she owns real property valued at approximately $49,950. Accordingly, this court has no alternative but to affirm the judgment of the court below.

Judgment affirmed.

Banke, C. J., Birdsong, P. J., Carley and Benham, JJ., concur. McMurray, P. J., Sognier, Pope and Beasley, JJ., dissent.