
    268 So.2d 662
    CITY STORES COMPANY v. Quimet J. PETERSEN.
    No. 52369.
    Nov. 6, 1972.
    
      Maurice R. Franks, New Orleans, for defendant-relator.
    Guste, Barnett & Colomb, William M. Barnett, Sidney L. Shushan, New Orleans, for plaintiff-respondent.
   SANDERS, Justice.

We granted supervisory writs to review the trial judge’s instanter rescission of an order waiving the prepayment of court costs by defendant because of poverty. We hold that the trial judge erred in rescinding the order without an evidentiary hearing and remand the case for further proceedings.

On November 5, 1971, City Stores Company filed suit against Quimet J. Petersen on an open account for merchandise. Pursuant to LSA-C.C.P. Article 5183, the defendant filed a motion for leave to proceed without the prepayment of costs. The motion was supported by the required affidavits. The trial judge granted a temporary order but assigned the matter for hearing. After the evidentiary hearing, the court reconfirmed its initial order.

Six weeks later, at a hearing relating to pre-trial discovery and a trial continuance, defense counsel stated to the court that “any dislosure of the amount and whereabouts of his [defendant’s] assets may tend to incriminate him” in connection with a federal indictment pending against him. After a colloquy between the trial judge and counsel, during which counsel expressed doubt of his ability to contact his client, the judge rescinded the previous forma pauperis order instanter in accordance with the following written order:

“IT IS FURTHER ORDERED that considering and upon the statements made in open court by the counsel for the defendant, that the order of this Court heretofore rendered permitting the defendant to proceed in this matter in forma pauperis is herewith recalled and rescinded and the defendant is ordered to pay the costs of court within thirty (30) days or have his Answers filed in this cause stricken., all without denying defendant’s right to bring a further rule to have the defendant prove his right to proceed by way of forma pauperis.”

On application of defendant under our supervisory jurisdiction, we granted writs to determine the validity of the instanter rescission of the forma pauperis order. City Stores Co. v. Petersen, 261 La. 537, 260 So.2d 321.

In this Court, defendant contends that when a forma pauperis order has been entered after a contradictory hearing, it cannot be rescinded summarily by the trial court without evidence of a change in financial condition. Defendant further contends that the Due Process and the Equal Protection Clauses of the Fourteenth Amendment preclude the State of Louisiana from exacting costs in advance of judgment in a civil proceeding from any defendant, rich or poor.

City Stores phrases its opposition in various ways, but the central contention is that the forma pauperis order is an interlocutory order subject to recall by the trial judge at any time; that defense counsel’s statement was an adequate basis for reexamination of the order; and that since relator has never been finally ordered to pay the costs, he has no standing to raise the constitutional question.

Article 5182 of the Louisiana Code of Civil Procedure provides:

“The privilege granted by this Chapter shall be restricted to litigants who are clearly entitled to it, with due regard to the nature of the proceeding, the court costs which otherwise would have to be paid, and the ability of the litigant to pay them or to furnish security therefor, so that the fomentation. of litigation by an indiscriminate resort thereto may be discouraged, without depriving a litigant of its benefits if he is entitled thereto.”

Under this article, the trial judge has both the authority and duty to subject forma pauperis orders to continuing scrutiny to prevent abuse. A trial judge may, therefore, reconsider a poverty determination whenever he has cause to believe either that circumstances have changed or that the order was improvidently granted. Like all judicial authority, however, it must be exercised in accordance with established procedures. These procedures require an evidentiary hearing when rescission depends upon contested factual issues. See LSA-C.C.P. Art. 5184.

In the present case, defense counsel made only a general reference to assets. His statement contained no factual admission sufficient to disqualify the defendant for the prior cost waiver. It was sufficient, however, to warrant a further hearing as to defendant’s poverty, but no such hearing was ordered. Hence, the order of the trial judge rescinding the forma pauperis authorization without a hearing must be set aside and the case remanded for further proceedings.

Because of this conclusion, we do not reach the constitutional question posed in defendant’s brief.

For the reasons assigned, the order of the district court rescinding the forma pauperis order is now reversed and set aside and the case is remanded to the Civil District Court for the Parish of Orleans for further proceedings consistent with the views herein expressed and according to law. The assessment of costs shall await the final outcome of the suit.

DIXON, Justice

(dissenting).

I respectfully dissent.

The statement of defendant’s counsel in argument was a sufficient basis, in my opinion, for the trial judge to rescind the forma pauperis order.

BARI-IAM, Justice

(dissenting).

I am of the opinion that the majority has done a grave injustice to the trial court and has actually interfered with that court’s attempt to proceed with order and decorum in discharging its judicial duties. The majority has correctly stated that under Code of Civil Procedure Article 5182 “* * * the trial judge has both the authority and duty to subject forma pauperis orders to continuing scrutiny to prevent abuse”. The trial court in conversation with the litigant’s counsel found valid reason for questioning the forma pauperis order. The court sought a contradictory hearing with the litigant. Counsel informed the court that it could not be had because he could not contact or produce the litigant. A careful reading of the following colloquy, I believe, demonstrates the correctness of my position.

“THE COURT: Yes, it does. He does not want to disclose here the man’s inability to pay.

“MR. FRANKS: Yes, because that would embarrass him in connection with his right to remain silent in connection with the Federal indictment. More particularly, he will again decline to answer on the grounds that any disclosure of the amount and whereabouts of his assets may tend to incriminate him as he did in this Court.

“TPIE COURT: In what Court did he do that?

“MR. FRANKS: Right here in the forma pauperis rule.

“THE COURT: Before me?

“MR. FRANKS: Yes, Your Honor.

“MR. BARNETT: He just said he doesn’t know anything about it. He claims he didn’t know.

“THE COURT: I am going to reorder his appearance and reopen his determination of the right to proceed in forma pauperis.

“MR. FRANKS: Mr. Peterson is presently out of town.

“THE COURT: When can he be here?

“MR. FRANKS: I have had difficulty in locating him.

“THE COURT: On counsel’s statement today the order to proceed in forma pauperis is rescinded and Mr. Peterson is ordered to pay the cost in thirty days or his answer will be stricken.

“MR. FRANKS: I believe the Court interrogated him and got answers to his questions.

“THE COURT: I got entirely satisfactory answers, entirely contrary to your statement j list. now.

“MR. FRANKS:' Again I fail to see why, Your Honor.. Mr. Peterson, apparently, at the time satisfied the Court.

“THE COURT: Yes, he did.

“MR. FRANKS: And we disclosed at that time that he was under indictment.

“THE COURT: Yes, sir, and if he doesn’t appear on his return and clarify that statement that you just made—

“MR. FRANKS: How was my statement different from his?

“THE COURT: The record will reflect that.

“MR. FRANKS: My statement was any question as to the amount of his income' — •

“THE COURT: Assets.

“MR. FRANKS: Well, he does not have any large amount of assets.

“THE COURT: The order to allow him to proceed in forma pauperis is rescinded and he is order [ed] to pay costs in thirty days or suffer striking of his answer. . If you want relief from that, bring him back.

“MR. FRANKS : All right. May it please the Court, Your Plonor, I respectfully, at this time notify the Court that my client respectfully intends, to apply to the Louisiana Supreme Court for a writ of certiorari, prohibition and mandamus in order to rescind on the grounds that there has been no testimony to 'the contrary, merely a representation that questions as to his present income might tend to embarrass him; that he should not be deprived of the right to present all defenses and of the right to litigate under forma pauperis merely because he is under Federal indictment.

“THE COURT: I take it from you that you represent your client and I have great respect for lawyers, and when you tell me what you told me, to me ifs just as Mr. Peterson would tell me that and if he were here I would want to inquire further into

that. I order his appearance and you tell me he’s out of town and you further tell me ifs difficult to locate him. On your presentation of the case, I order a rescission of the order allowing him to proceed in forma pauperis. If you want to proceed in forma pauperis, bring him back and convince me again, but armed with a recollection, I hope, of your statement today, I certainly intend to go further into the details.

“With that statement, of course, you have the right always to apply for remedial writs to the Fourth Circuit.

“The motion for continuance will be denied.” (Emphasis supplied.)

The trial judge correctly interpreted the attorney’s answers to mean that he could not and would not voluntarily produce the party litigant so that the court could exercise the codal mandate for continuous scrutiny of the forma pauperis order. He used an effective but not onerous method for securing the party’s presence in court to ascertain the party’s present right to continue in forma pauperis. Since he could not obtain a voluntary contradictory hearing, he ordered a rescission of the for-ma pauperis order subject to the litigant’s right to reopen if he would appear in court. The court acted with restraint and good discretion under the circumstances to maintain its authority.

For these reasons I respectfully dissent. 
      
      . The appellate decisions prior to the Louisiana Code of Civil Procedure are conflicting on this point. In Palmer v. Wyatt Lumber Co., La.App., 146 So. 494 (1933), the Second Circuit Court of Appeal stated: “It is always within the power of the trial judge with or without a traverse of plaintiffs’ allegations of poverty, to prevent any abuse of this act ...” In dicta, the Fourth Circuit in Singleton v. First Nat. Life Ins. Co., La.App., 157 So. 620 (1934) said that the allegation of poverty must be taken as true in the absence of a formal traverse.
     
      
      . Aa to the constitutional question, defendant states in brief: “This issue need be reached . . . only if each of the arguments presented above are resolved unfavorably to relator.” In effect, therefore, it represents an alternative contention.
     