Feazell v. Staltzfus

Anderson, J., delivered the opinion of the court. The appellant, Mrs. Clara Feazell, sued the appellee, B. F. S.talzfus, for slander. The suit was brought to the September term, 1910, of circuit .court of Jones county for the second district. On the 26th day of September, 1910, the appellee filed an affidavit and motion to require the appellant to give security for the costs, as provided by section 940, Code 1906. On October 3, 1910, the court entered an order sustaining this motion and fixing the cost bond to he given by appellant at two hundred and fifty dollars, with sureties to he approved by the clerk, and in this order the case was set for trial “for the fourth Thursday of the term.” The appellant presented a cost bond to the clerk, with her husband and another as sureties,, which the clerk declined to approve. Thereupon the appellant filed, on October 14th, an affidavit in accordance with section 947, Code 1906, setting up that because of her poverty she was unable either to pay or [890] secure the cost, and, to the best of her judgment, she was entitled to the redress which she sought.. On October 18th thereafter appellee filed a demurrer to the declaration, which, on October 20th, was heard by the court and overruled. In the judgment overruling the demurrer there is this recital: “Thereupon the plaintiff demanded a judgment final against the defendant, and the award of a writ of inquiry to assess her damages, which the court, on the request of the defendant to be allowed to plead instanter, declined, and granted the defendant leave to plead.” To the action of the court in allowing the defendant to plead, and denying a judgment final, the appellant excepted. On the same day another order was entered, dismissing appellant’s suit, in this language: “This cause coming on this day to be heard, and the court having on a former day ordered plaintiff to give security for costs in the sum of two hundred and fifty dollars, and the plaintiff having failed to give such security, but instead took the oath in forma pauperis, and the court stating that it had been reliably informed that the plaintiff is able to give, and can give, security for costs, and so orders, and the plaintiff declining to open court to make further effort to give security for costs, it is ordered that said suit be, and the same is, hereby dismissed, to all of which plaintiff then and there excepted. It is further ordered the plaintiff pay the costs, for which let execution issue.” Certain statements made by the court and counsel, at the time the above order was made, are embodied in a bill of exceptions and made a part of the record. The facts set out in this bill of exceptions are substantially as follows: When the demurrer to the declaration was overruled, the appellant demanded judgment on the ground that appellee had not made the affidavit of merits required by section 755, Code 1906. The appellee’s attorney asked leave of court to file pleas, which leave the court granted, denying appellant judgment for the [891] want of the affidavit above referred to. The appellant then demanded a trial, which was denied by the court. These adverse rulings to appellant were duly excepted to by her attorney. The judge, in dismissing the case, made this statement: “The court is not going to allow this case to go to trial unless the plaintiff gives security for costs. There are about seventy-two witnesses, business men and workingmen, who are forced to leave their business and come to court and stay here from time to time, without being compensated for it, it being shown that the plaintiff is a married woman, having a husband able to work, and she has a brother-in-law able to give bond for costs, and for these reasons the court is not going to allow this case to go to the jury, or to be-heard in court, until plaintiff gives security for costs. If it appeared to the court that this woman was a pauper, he would allow the case to be heard.” It is contended on behalf of appellee that the action of the court in dismissing the case was authorized by section 948, Code 1906, which provides: “The court may dismiss an action commenced or continued on affidavit of poverty, if satisfied that the allegation of poverty was untrue.” The judgment of the court in dismissing a cause under this statute must be based on testimony capable of being embodied in a bill of exceptions and made a part of the record in the case. Such a judgment is reviewable by this court op appeal. The question must be heard and determined on testimony adduced before the court in the regular way. This was not done. Therefore the court was in error in dismissing the case. It is contended on behalf of appellant that, when appellee’s demurrer to the declaration was overruled, appellant was entitled to a judgment quod recuperet under section 755, Code 1906, because of the failure of appellee to make the affidavit of merits provided by that statute. The statute provides: “If the demurrer of the defendant to the declaration be overruled, the court [892] shall give judgment for the plaintiff for the amount due and interest; and a plea shall not be admitted unless the defendant malee oath that he has a good and substantial defense, setting forth fully the uature of the defense, that the court may judge whether the plea ought to be admitted or not.” The statute applies to all actions, whether on contract or sounding in tort. It is argued that the language, “The court shall give judgment for the plaintiff for the amount due and interest,” indicates a purpose that the statute shall not apply to .actions sounding in tort. This position is unsound. Where the cause of action hears no interest, none, of course, is calculated. The court below erred in permitting appellee to plead without having first made, the affidavit provided for by this • statute. The statute is mandatory. The court is left no discretion as to whether the affidavit shall he filed. When the cause goes back, if the affidavit is not made by the appellee, on being given an opportunity to do so by the court, judgment quod recuperet should he rendered for the appellant, and a. writ of inquiry awarded to assess her damages. Reversed and remanded.