Burleson v. Rawlins

LOONEY, Justice. This is an original application by Mrs. Wallace Anthony Burleson, joined pro forma by her husband M. M. Burleson, against Honorable John A. Rawlins, Judge of the 116th Judicial District Court of Dallas County, .seeking permission, without payment of cost or giving security therefor, to prosecute a cause of action for damages in a suit originally filed in the 101st Judicial District Court of Dallas County, by Wallace Anthony, a feme sole (since married to M. M. Burleson), against B. P. Blasingame, et al., being cause No. 63180-F. on the docket of said Court. The facts, in short, are these: The suit was filed on February 24, 1942, by Wallace Anthony, plaintiff, against B. P. Blasingame et al., for the recovery of damages resulting from personal injuries allegedly caused by the negligence of the defendants. At the institution of suit, plaintiff filed an affidavit of inability to pay the court cost or give security therefor, in compliance with Rule 145, Texas Rules of Civil Procedure, and later, on April 11, 1942, filed an affidavit of inability to pay a jury fee or give security therefor. On March 21, 1942, defendants filed their original answer but failed to contest plaintiff’s affidavits of inability to pay cost or give security until November 24, 1942, terms of court having intervened between the filing of the affidavit of inability and filing of the contest thereof, and a full term had intervened between the filing of the affidavit of inability to pay a jury fee or to give security therefor, and the contest. On January 10, 1943, plaintiff and M. M. Burleson were married', after which an amended petition was filed by plaintiff in which her husband joined pro forma as plaintiff. At the time defendants filed the contest, plaintiff, in open court, objected to its consideration on the ground that it came too late; thereafter, other pleadings were filed by both parties, pre-trial hearings were had, but the hearing on the contest of the affidavit of inability was postponed, subject to plaintiff’s objections as above mentioned. *980 Thereafter, the cause was set for trial on its merits for a date in May, reset for a day in June, and again was reset for July 6, 1943, at which time the parties announced ready for trial, and the cause was transferred to the 116th Judicial District Court for trial; after which, and when called for trial in the latter court, before a jury was selected, the defendants called to the attention of court their contest of plaintiff’s affidavits of inability. At this juncture, plaintiffs called to the court’s attention the provisions of Rule 145, Texas Rules of Civil Procedure, and insisted that the contest came too late and moved to dismiss same. The court overruled the motion to dismiss, heard evidence, sustained the contest and entered an order requiring plaintiffs to either give a good and sufficient bond for costs or deposit with the Clerk of Court the sum of $75 in cash, in default of which plaintiff’s suit would be dismissed. The order of court sustaining the contest not being appealable, we think plaintiff pursued the proper procedural remedy in applying for the writ of mandamus. See Thomas v. Eskew, Tex.Civ. App., 81 S.W.2d 713. The affidavits in forma pauperis, filed by plaintiff, constituted prima facie evidence of the facts therein alleged, and not having been contested by defendants until after the expiration of the term of court when filed, became conclusive and thereafter were incontestable. This, we think, is the plain meaning of Rule 145, Texas Rules of Civil Procedure. As shown above, when the belated contest was filed, plaintiff objected to its consideration on the ground that it came too late, and, consistent with this contention, when defendants called up the contest at the time the trial of the case on its merits was being entered upon, plaintiff again protested and filed a formal motion to dismiss the contest for the reasons stated. The court overruled plaintiff’s motion, heard and sustained the contest, and made the order heretofore mentioned. We think the court erred in not dismissing the belated contest. The source of Rule 145 was Art. 2070, R.C.S.; the change made by the rule was the introduction of the provisions directing that a contest of, an affidavit of inability be heard during the term at which the affidavit is filed. This procedure was not pursued in the instant case, plaintiff’s affidavit of inability became incontestable at the expiration of the term when filed, hence plaintiff’s motion to dismiss the contest should have been sustained. However, on careful consideration of the evidence offered at the hearing, we think the conclusion inescapable that plaintiff sustained the truth of the allegations of inability to pay the cost or give security therefor. Plaintiff testified that before being injured, she was earning $100 per month; that she incurred large medical bills, some of which were still hanging over her, unpaid, and, at the time of the hearing, was without work; that the only property she owned was her clothing, a wrist watch, wedding ring, and a piano costing $400, purchased in 1941, encumbered with a mortgage of $200; that her husband, whom she married after the institution of the suit, was without property except an automobile encumbered with a mortgage of $500; that they resided in the town of Irving and her husband was working at a defense plant in Fort Worth and used the car for daily trips going to and • from his work; that he earned 56‡ per hour— sometimes as much as $36 per week — but helped to take care of his mother, and that it took all they made to get along; that they had no way of raising money for court costs and could not give bond as security. It also appeared that after the court made the order sustaining the contest and requiring the execution of a bond for costs, or the deposit in court of $75 in cash, plaintiffs made further efforts to comply with this order but could find no one who would go on their bond, and were unable to procure the money for the cash deposit. The defendants offered no evidence at the hearing. The undisputed evidence shows, we think, that plaintiffs had no money with which to pay costs and were unable to raise any on the only property they owned, that is, a secondhand piano, mortgaged for $200, doubtless could not be sold for more than that sum, and the automobile which, in addition to being exempt property, was mortgaged for $500, and that, after efforts made, were unable to make bond for costs. For the reasons stated, we conclude, first that the court erred in overruling plaintiffs’ motion to dismiss the contest because filed too late, and, second, the hearing on the merits, we think, showed indisputably that the truth of the affidavits of inability was established (see Rutherford v. Vandygriff, Tex.Civ.App., 73 S.W.2d 569; Van Benthuysen v. Gengler, Tex.Civ.App., 100 *981 S.W.2d 116; Aguirre v. Hanney, District Judge, Tex.Civ.App., 107 S.W.2d 917), hence, in either case, plaintiffs were entitled to the issuance of mandamus as prayed, and it is so ordered.