
    (73 South. 851)
    No. 22290.
    WHITE v. KAVANAUGH et al. In re WHITE.
    (Jan. 15, 1917.)
    
      (Syllabus by the Court.)
    
    Costs <&wkey;131 — Proceeding in Forma Pauperis— Statute .
    By the terms of Act No. 156 of 1912, p. 223, litigants who are unable to pay costs to litigate in the courts of the state of Louisiana as they accrue, or to give bond therefor, may proceed in forma pauperis, if they are citizens of the state, or have been domiciled in the state for three years, and are unable, because of their poverty, to pay such costs, or to give bond for the payment therefor.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 500-502; Dec. Dig. &wkey;5l31.]
    O’Niell, J., dissenting.
    Proceeding in forma pauperis by Ed. White against W. W. Kavanaugh and others. Order permitting plaintiff to litigate without pacing costs vacated, and plaintiff applies for writs of mandamus, prohibition, and certiorari.
    Writs herein issued recalled.
    Mathews & Peters, of Winnfield, for relator. Huey P. Long, Jr., of Winnfield, for respondents.
   SOMMERVILLE, J.

This is a proceeding in forma pauperis, where plaintiff alleges “that petitioner is a resident of Jackson parish, La.,” and that defendants are indebted to him in the sum of $15,000 in damages. He does not allege that because of his poverty he cannot pay the costs of court, or give bond for them. He does not allege that he is a citizen of Louisiana, or that at the time of his injury he was an alien who had resided in the state for three years. He does not say that he introduced testimony to show that he was entitled to this right on the trial of the rule filed by defendant to vacate the order permitting suit in forma pauperis.

There are attached to his petition two affidavits, in part as follows:

“He [plaintiff] deposes and says that because of his poverty and want of means he is unable to either pay the costs of this ease in advance, or as they accrue, or to give a bond for the payment of such costs. [Signed] Eddie White,” and “Before me, the undersigned authority, personally came and appeared T. E. Zuber, who after being by me duly sworn, deposes and says that he knows Eddie White, the plaintiff in the foregoing petition, and knows his financial condition, and that affiant firmly believes that said Edd White is unable to pay either .the costs of this cause in advance, or to give bond for the payment of such costs. [Signed] T. E. Zuber,” etc.

Defendant filed, what he termed “an exception of no right of action in forma pauperis” which, after trial was dismissed. Defendant filed another motion, which he styled, “motion to vacate order permitting suit in forma pauperis,” and that motion was sustained; and the order permitting plaintiff to litigate -without paying costs was vacated. On the trial of this last motion, plaintiff offered no evidence whatever.

Plaintiff applies to the court to issue writs of mandamus, prohibition, and certiorari, directing the district judge to permit relator to litigate the cause without the payment of costs in advance, or as they accrue, or to give bond for the payment of such costs.

Act No. 156, 1912, p. 223, provides in part:

“That any person, who is a citizen of this state, or who if an alien, has been domiciled in this state for three years, shall have the right to prosecute and defend in all the courts of this state all actions to which he may be a party whether as plaintiff, intervener, or defendant, without the previous or current payment of costs or the giving of bonds for costs, if he is unable because of his poverty to pay such costs or to give bond for the payment of such costs. * * * That no person shall have the right to exercise the right herein granted unless he shall file with his petition, if a plaintiff, or with the first pleading he shall file, as intervener or defendant, his own affidavit declaring that because of his poverty and want of means he is unable either to pay the costs of the case in advance or as they accrue, or to give a bond for the payment of such costs, and the affidavit of a third person declaring that he knows the party and knows his financial condition, and that he firmly believes that the party is unable either to pay the costs of the cause in advance or as they accrue or to give bond for the payment of such costs. * * * Any adverse party in any cause in which such an order is rendered shall have the right by a summary rule to traverse the truth of the applicant’s claim, and if such traverse is successful the court shall rescind such order and condemn the applicant to pay all the costs [which have] accrued to date inclusive of Hie costs of the rule.”

Petitioner attached the required affidavits to his petition; but his petition is entirely silent as to whether he is a citizen of the state or an alien who has resided in the state for three years; and the affidavits attached to his petition are silent on these points. It is necessary under the law that a certain condition shall exist to permit a plaintiff to prosecute a suit in forma pauperis in the courts 'of this state. If it does not appear from the petition or elsewhere that plaintiff is a citizen, or has been a resident of the state for three years, and that he is unable, because of his poverty, to pay court costs or to give bond for the payment of such costs, the order to permit such proceeding should be vacated. And if, on the trial of the rule of the defendant to vacate the order allowing plaintiff to proceed in forma pauperis there is no evidence offered, or the petition is not amended in these respects, the order to proceed in forma pauperis is properly vacated.

Relator had the right to amend his petition and state that he was a citizen, or that he was an alien who had resided in the state for three years. The allegation that he was a resident of the state was not sufficient under the terms of the law. He also had the right to appeal.

The writ herein issued is recalled, at the cost of relator.

O’NIELL, J., dissents, and hands down reasons. See 73 South. 852.  