Perry v. Perry

53 S.E.2d 457, 230 N.C. 515, 1949 N.C. LEXIS 361

• Court: Supreme Court of North Carolina
• Decided: May 25, 1949
• Status: Published

Opinion

Per. Curiam.

The statutory provision for appeals in forma pauperis is to preserve the right of appeal to those who, by reason of their poverty, are unable to make a reasonable deposit or give security for the payment of costs incurred on appeal to this Court. It is not to be used as a subter fuge to escape payment of costs which otherwise might be taxed against the appellant.

The co.urt below found as a fact, on admissions made in open court, that defendant is now earning $300 per month. Even so, the defendant made a motion to be allowed to appeal in forma pauperis, supported by the statutory affidavit. The court, in allowing the motion, at least impliedly found that the affidavit was made in good faith and that the facts as therein stated are true.

If defendant is earning $300 per month, he is able to make a reasonable deposit to secure the payment of the costs of his appeal. On the question of his ability to make such deposit, the findings of the court on the one hand, and the defendant’s affidavit and the order based thereon on the other, are contradictory. This raises a serious question as to whether the affidavit was made in good faith.

In view of this situation, the trial judge should be afforded an opportunity to review the motion and reconsider his order based thereon, to the end that he may determine whether the defendant is in fact entitled to appeal in forma pauperis. For that purpose only the cause is

Remanded.