Wright v. Peurifoy

260 S.W.2d 234, 1953 Tex. App. LEXIS 1932

• Court: Court of Appeals of Texas
• Decided: May 5, 1953
• Docket: 14716
• Status: Published

Opinions

PER CURIAM.

This is an original application by E. Roy Wright for a writ of mandamus directed to Honorable Paul Peurifoy, Judge of the 95th District Court, Dallas County, Texas, for permission to prosecute an appeal by filing his affidavit of inability to pay costs as provided in Rule 355, Texas Rules of Civil Procedure.

Relator was plaintiff in a case against Paul R. Luther, Mrs. A. B. Luther, Citizens Service Co., Reserve Loan Service, V. L. Ware, E-Z Finance Co., Acme Company Loans, Texas State Finance Co., General Finance Loans, and W. Lee Moore. Jr., individually and as executor of the estate of W. Lee Moore, Sr. His cause of action was based on allegations of usury, personal injuries, both physical and mental, harassment, and exemplary damages. A trial before a jury resulted in a verdict for plaintiff of approximately $37,000. On motion for judgment the trial judge rendered’ judgment for only $7,800. Before a motion for new trial was acted upon, a change of judges took place, Hon. Paul Peurifoy ascending the bench on Jan. 1, 1953. The motion for new trial came on for hearing before Judge Peurifoy who overruled the motion, but reduced the amount of the judgment to $780.

Relator Wright, desiring to appeal from both the order of the court rendering judgment in his favor for only $7,800 and the order of the court reducing the judgment to $780, filed his affidavit of inability to pay costs. Relator’s affidavit was contested and on April 7, 1953 Judge Peurifoy sustained the contest to the extent of ordering E. Roy Wright to pay $250 on the court costs.

The uncontradicted testimony on the hearing on respondents’ contest of inability to pay costs discloses the following: E. Roy Wright owns no property at all except his household goods consisting of five rooms of furniture against which there is a mortgage of $350; he also owes the following debts: To Dr. Burford $115, to Dr. Simmons $155, to the National Finance and Thrift Co. $300, to the United Credit Clothing Store $35, to the Plunt Department Store $50, to Cherry Grocery Co. $60. The monthly expenses of the relator are shown to be the following: United Finance and Thrift Co. $40, Groceries $115 per month, United Clothing Store $15 per month, Stanford Furniture Co. $42 per month, Hunt Department Store $12 a month, rental of apartment $85 a month, utilities $15 a month, carfare to work and back $6 per month, expenditure for uniforms for work $10 a month, life and accident insurance $6 a month, and telephone $10 per month. Relator is supporting five persons in his household: himself, his wife, his daughter, and two grandchildren. Relator makes about $320 per month, based on an hourly wage. The testimony also shows that the relator has recently tried unsuccessfully to refinance the imortgage on his furniture. He has also tried unsuccessfully on two other occasions recently to place second mortgages against his furniture. In connection with costs of appeal, he also twice tried unsuccessfully to obtain security on a bond for costs in' this case. Relator further testified that he does not know of any one who will go on a bond for him and that he has tried unsuccessfully to borrow money to pay the costs of appeal. The court reporter has estimated that the cost of a statement of facts will be $1,200. The record further shows that while the suit was pending in the trial court, relator made cash deposits on the court costs as follows: On May 15, 1951, $35; on August 12, 1951, $10; on January 3, 1952, $25; but that at the time of the hearing the total amount of cash in the possession of himself and his wife was $1.

After a careful consideration of the un-contradicted testimony offered at the hearing, we think the inescapable conclusion, supported by the overwhelming weight of the testimony, is that relator cannot raise the $250 cash deposit required of him by the court. He owns no property except his furniture, which is already mortgaged; he owes numerous debts; he has tried unsuccessfully to borrow additional money; at the time of the hearing he and his wife possessed a total sum of money in the amount of $1. Though he makes about $300 per month, his reasonably necessary expenses, under the circumstances present in his case, exceed that amount. It is true that while his case was pending he raised $35 cash at one time, $10 on another occasion, and $25 on still another to apply on-the court costs. But these payments were made over a period of about seven months and offer no criterion of his ability to raise $250 now.

We are of the opinion that the application for a writ of mandamus should be granted as prayed for. Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19; Burleson v. Rawlins, Tex.Civ.App., 174 S.W.2d 979; Aguirre v. Hanney, Tex.Civ.App. 107 S.W.2d 917; Van Benthuysen v. Gengler, Tex.Civ.App., 100 S.W.2d 116. It is so ordered.