Sloatman v. Gibbons

448 P.2d 124, 8 Ariz. App. 554
CourtCourt of Appeals of Arizona
DecidedMarch 4, 1969
Docket2 CA-CIV 613
StatusPublished
Cited by1 cases

This text of 448 P.2d 124 (Sloatman v. Gibbons) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sloatman v. Gibbons, 448 P.2d 124, 8 Ariz. App. 554 (Ark. Ct. App. 1969).

Opinion

HATHAWAY, Chief Judge.

These extraordinary writ proceedings were instituted by the petitioner to obtain a writ of mandamus ordering the respondent judge to grant the petitioner’s motion for waiver of filing fees and the respondent clerk to accept and file a divorce complaint.

On August 28, 1968, the petitioner, by her attorney, a staff member of the Legal Aid Society, presented a verified complaint for divorce to the office of the respondent clerk for filing. An affidavit of indigency and inability to pay the required filing fee,, executed by the petitioner, was presented', simultaneously therewith. Also presented! was a motion for leave to proceed in forma, pauperis which requested an order allowing-the petitioner to file the divorce complaintr without payment of the $20 filing fee to., the clerk of the superior court.

The respondent clerk informed counsel, for petitioner that the complaint could not. be accepted for filing unless an order permitting the waiver of filing fee were secured. Petitioner’s motion for such order-was duly heard by the respondent judge- and, albeit he found the petitioner was am indigent and unable to pay all or any part: of the statutory filing fee, the motion was denied.

Before considering the merits of the case, we must pass upon the appropriateness of the remedy herein sought. While we agree with the petitioner that, mandamus is an appropriate remedy as to the respondent court, Isrin v. Superior Court, etc., 63 Cal.2d 153, 45 Cal.Rptr. 320, 403 P.2d 728 (1965), we do not believe that mandamus will lie as to the respondent clerk. Riley v. Cornwall, 48 Ariz. 10, 58 P.2d 749 (1936). We therefore confine our-considerations to the question of whether-the trial court had authority to permit the-petitioner to prosecute her action in forma, pauperis.

A.R.S. § 12-311, as amended by Laws: 1968, provides in part:

“At the commencement of each action or proceeding, except as otherwise provided by law, the plaintiff shall pay to the clerk of the superior court twenty dollars. * * * ” (Emphasis ours)

*556 The respective parties to these proceedings differ as to the meaning of the term “except as otherwise provided by law.” The respondent contends that there is no statutory authority for remission of filing fees, hence no potential right to proceed in forma pauperis. Encyclopedic authority on the subject indicates that there is a contrariety of opinion as to whether courts, in the absence of statutory authority, have inherent power to permit poor persons to proceed in forma pauperis. 20 Am.Jur.2d Costs § 47; 20 C.J.S. Costs § 147. Cases holding that authority to permit prosecution of an action in forma pauperis must be given by statute are Howe v. Federal Surety Company, 161 Okl. 144, 17 P.2d 404 (1932); Harrison v. Stanton, 146 Ind. 366, 45 N.E. 582 (1896); Bradford v. Southern Railway Company, 195 U.S. 243, 25 S.Ct. 55, 49 L.Ed. 178 (1904).

The petitioner, on the other hand, ascribes to the term “unless otherwise provided by law” a different meaning. She urges us to follow the example of the California decisions which hold, that by virtue of California’s adoption of the common law, courts have inherent in forma pauperis dispensing power. Martin v. Superior Court, etc., 176 Cal. 289, 168 P. 135 (1917); Willis v. Superior Court, etc., 130 Cal.App. 766, 20 P.2d 994 (1933); Emerson v. Superior Court, etc., 29 Cal.App.2d 539, 84 P.2d 1059 (1938); Isrin v. Superior Court, etc., supra; County of Sutter v. Superior Court, etc., 244 Cal.App.2d 770, 53 Cal.Rptr. 424 (1966).

We do not believe, however, that we are faced with a decision as to whether courts have inherent powers to dispense with fees. Accepting the respondent’s argument that statutor}r authority is necessary, we believe that the legislature has provided courts with the requisite authority. A.R.S. § 12-302 provides:'

“The court or any judge thereof may for good cause shown extend the time for paying any court fees required by law or- may relieve against a default caused by nonpayment of a fee within the time provided by law, but no fees paid shall be refunded.”

Affording this statute the liberal construction to which it is entitled, Richfield Oil Corporation v. LaPrade, 56 Ariz. 100, 105 P.2d 1115 (1940); Harrison v. Jones, 187 La. 489, 175 So. 37 (1937); Fiske v. Grider, 171 Tenn. 565, 106 S.W.2d 553 (1937), we believe that the legislature intended to open the doors of the courts to litigants whose poverty would otherwise preclude their securing justice because of inability to pay court fees in advance. A recent Law Review article, Litigation Costs: The Hidden Barrier to the Indigent, 56 Georgetown Law Journal 516, points out that 32 states, the District of Columbia, and the Federal government have enacted in forma pauperis statutes or court rules, the scope of which varies considerably. The author further points out that although some jurisdictions wholly disregard payment of fees and costs, most statutory provisions only encompass prepayment. See also 20 C.J.S. Costs § 146. For example, the Federal statute provides:

“Any court of the United States may authorize the commencement * * * or defense * * * without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefore * *
28 U.S.C.A. § 1915.

In Louisiana, it is provided:

“A person who was unable to pay the costs of court, because of his poverty and lack of means, may prosecute or defend a judicial proceeding in any trial or appellate court without paying the costs in advance, or as they accrue, or furnishing security therefor.”

LSA-C.C.P.. Article 5181.

We fail to see any material distinction between these statutes and our own A.R.S. § 12-302. Though their wording be different, they evidence a common legislative intention—to postpone payment rather *557 than absolute release from payment. The word “extend” means to “enlarge,” “continue,” or “stretch out.” Meyering v. Miller, 330 Mo. 885, 51 S.W.2d 65 (1932); Crane Enamelware Company v. Smith, 168 Tenn. 203, 76 S.W.2d 644 (1934); State v. Zazzaro, 128 Conn. 160, 20 A.2d 737 (1941).

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Related

Sloatman v. Gibbons
454 P.2d 574 (Arizona Supreme Court, 1969)

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448 P.2d 124, 8 Ariz. App. 554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sloatman-v-gibbons-arizctapp-1969.