Wickelman v. A. B. Dick Co.

Second Circuit

Wickelman v. A. B. Dick Co.

85 F. 851, 29 C.C.A. 436, 1898 U.S. App. LEXIS 2213

CourtCourt of Appeals for the Second Circuit

DecidedMarch 2, 1898

DocketNo. 98

StatusPublished

Cited by7 cases

This text of 85 F. 851 (Wickelman v. A. B. Dick Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wickelman v. A. B. Dick Co., 85 F. 851, 29 C.C.A. 436, 1898 U.S. App. LEXIS 2213 (2d Cir. 1898).

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Opinion

PER CURIAM.

It is unnecessary to decide whether the act of congress of July 20, 1892 (27 Stat. 252), entitled “An act providing when plaintiff may sue as a poor person,” etc., applies to a defendant, or authorizes an appeal to this court to be prosecuted without giving (he security required by section 1000 of the Revised Statutes of the United States. The motion to dismiss the appeal proceeds in part upon the ground that the allegation of poverty in the affidavit filed by the appellant is untrue. That allegation has been found to be untrue by the master to whom the question of its truth was referred, and we concur in his conclusions. We do not mean to imply that the appellant committed perjury, or that he did not believe his circumstance's to he such as to justify the affidavit which he made. But he was at the time in receipt of a salary of §20 per week, and was paying a rent of 8200 per annum for the house which he occupied. A person thus situated is not a poor person, within the meaning of the statute. Section 4 of the act authorizes a dismissal of the anpoal under these circumstances, and it will accordingly be dismissed unless within 10 days the appellant gives the necessary security. An appeal may be perfected notwithstanding the security has not bee given within six months after the entry of the decree sought to be reviewed. The Dos Hermanos, 10 Wheat. 306; Edmonson v. Bloomshire, 7 Wall. 306; Brandies v. Cochrane, 105 U. S. 262; Evans v. Bank, 134 U. S. 330, 10 Sup. Ct. 493.

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PER CURIAM.

It is unnecessary to decide whether the act of congress of July 20, 1892 (27 Stat. 252), entitled “An act providing when plaintiff may sue as a poor person,” etc., applies to a defendant, or authorizes an appeal to this court to be prosecuted without giving (he security required by section 1000 of the Revised Statutes of the United States. The motion to dismiss the appeal proceeds in part upon the ground that the allegation of poverty in the affidavit filed by the appellant is untrue. That allegation has been found to be untrue by the master to whom the question of its truth was referred, and we concur in his conclusions. We do not mean to imply that the appellant committed perjury, or that he did not believe his circumstance's to he such as to justify the affidavit which he made. But he was at the time in receipt of a salary of §20 per week, and was paying a rent of 8200 per annum for the house which he occupied. A person thus situated is not a poor person, within the meaning of the statute. Section 4 of the act authorizes a dismissal of the anpoal under these circumstances, and it will accordingly be dismissed unless within 10 days the appellant gives the necessary security. An appeal may be perfected notwithstanding the security has not bee given within six months after the entry of the decree sought to be reviewed. The Dos Hermanos, 10 Wheat. 306; Edmonson v. Bloomshire, 7 Wall. 306; Brandies v. Cochrane, 105 U. S. 262; Evans v. Bank, 134 U. S. 330, 10 Sup. Ct. 493.

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85 F. 851, 29 C.C.A. 436, 1898 U.S. App. LEXIS 2213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wickelman-v-a-b-dick-co-ca2-1898.

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