HASTINGS COLLEGE OF THE LAW L1RARY

REPORTS OF CASES

DETERMINED IN

TIlE SUPREME COURT

OF TUE

STATE OF CALIFORNIA

11JVNDOLIIT V. WHITING
RE PU RT ER

VOLUME 176

SAN Y}UNCTSCO
BANCROPT—Wil ITNEY COMPANY
,

C’ -,
[176 Ca]. Oct. 1917] MARTIN V. SUPERIOR COURT. 289
oved the
Ott to was
;88, [144 [S. F. No. 8213. rn Bank,—October 11, 1917.]
152 Pac.
ANDREW MARTIN, Petitioner, v. SUPERIOR COURT OF
showing, ALAMEDA COUNTY et aL, Respondents.
that the COMMON LAW AS RULE OF DECISIoN—CONSTRUCTIoN OF
PoLnneAL coot,
care and SEcrIoN 4168.—Section 44158 of the Political Code, making tha
ud hence common law of England the rule of decision in all courts of the
or con state so far as not repugnant to or inconsistent with the constitu
)pointed. tion of the United States or the constitution or laws of this state,
had in contemplation the whole body of common-law jurisprudence
that the
as it stool, ijijuoneed by statute at the time when the code section
ent, may
was adopted, and embraced equity also in its contemplation.
tither of
Ia—SUING IN FoRitA PAUPERIS POWERS OF ENGLISH COURT.—The
inted by
—

power to remit fees -was one of the inherent powers of the English
of the courts quite independently of statute.
e estate SUING IN FORMA PAUPERIS—POWERS or SUPERIoR CouRt—The power in
tnd gone this state to admit suitors in forma pauperis exists in our courts of
an unfit general jurisdiction without statute.
dud had ID.—JUSTICES’ COURTS—QONSPRUCTION OF SECTION 91, coot or Cn’u.
‘ntended PR0OEDURE.—It is quite plain that the legislature by this section,
so
t person recogrilaing the power of courts of record to admit suitors in forma
relating .s expressly conferred the power upon inferior courts of
4
pauper
limited jurisdiction with the design to save all question.
Lon thus OF Couap NO-P CuaTAIL BY STnUTE—Statutes, such as

[or, and section 4295 of the Political Code, and other general statutes dealing
with the collection and disposition of fees. have reference only to
and the
cases where the court has not remitted the fees and are neither
person individually nor collectively susceptible of the construction that they
tas been were designed to deny to the courts the exercise of their inherent
rd°r in— power to remit fees.
e estate. ID—S ris-ipvcy OF Fan-t-s—Anonnry’s yt-:-r!yG5NT I DO1TF:FU —in
r not is formation and P lief of the judge that an attorney has a eotingent
dich the interest or fee dependent on the outcome of the Utigateon does not
ardship jusdfy refusal of permissan to sue in f-s’o.a puup::r in a proper
flee for
a ease 1n—Thoiti: jnv Ta!Ar—t ne who is y,ermitted to sue without pay
.

mont of ooutt fees is not by their retnissoen deprived of his right

to a ma’ i-v
neither
titian Pumt:s.—-A no:oo of notion for leave to
further orose.cute in [orson po-soperds is not tnisieading becaase
ent:Iled n a notice of motion “:for leave to sued’
To- —i;sv It: T:ost ntJt::---To ots’ 0

CLXXVI CaL—ID
20

statute.
M.wriw a Sui’uioa Cor:wr.

‘hr nntion to be rna’Ie, akhongh those wc:r4s

la.—-Riour to Panszcr’rr Acriow.—One who

[176 Cal.

are not found in any

ha paid the original filing

I
I
Oet. If

the pay
sid fairy
serted
by debarred from the
fees on eonimneing an action Is nor there plicatin
right to apply for a remission of subseq
uwmt fcnc.
Of resp.
of merits is not a prerequisite
Itt—A rn,Avrr or MERITS.—An affidavit
to a motion for leave to prosecute
an action in forma pauperü. 1 1
of thus.
the Cod
APPLICATION for Writ of Mandate to
be directed .1 the sev
nty of Alameda. lion. con trac
a2ainst the Superior Court of the Cou fi
erty.
T. W. Harris, Judge. sion, to
The facts are stated in the opinion of the
court. I any, thi
Furtl
ner.
Elwin B. Carson, and C. A. Lian, for Petitio p. 188)
vendlet
D. C. Button, for Respondents. pay the
jury be
Alden Ames, for Legal Aid Society, Arnicus Curi
ae. the fees
the jur:
action In the
HENSHAW, J.—Plaintiff commenced this Code ft
superior court of the county of Alameda aga inst Ergo A.
forming
Majors, to recover damages for the death of plai
ntiff’s minor 4 in proec
the wrongful
daughter, alleged to have been occasioned by fees, ex
nt of this
acts of Ergo A. Majors. After the commenceme and any
ried and the
action this petitioner, who is a day laborer, mar or body
father of ten minor children, all of whom are
living and de
upon ti1
of the court to
pendent upon him for support, sought leave is it ma
a panperis. His
be allowed to prosecute his action in orm services.
the effect that,
application was supported by an affidavit to perior “

essed of more
saving for his chose in action, he was not poss “In t;
was interested in
than $25, and that no one saving himself quired d
The superior court
the suceessful prosecution of the action. for trial
from the court
denied his application. He sought by mandate money n
erior court
of appeal to secure an order directed to the sup such da:
his ape
Alameda County compelling the latter court to rant ( money s
the man date,
pUcation. The court of appeal declined to issue The jut
issue the writ
assigning no reasons for its order refusing to the part’
being made by
It was in effect a dismissal. Application then the same
t of mandate was,.;
petitioner to this court, an alternative wri to this
itsued.
the right of,, ;:.M depositit
The fundamental question thus presented is of We ha
on his action i&P
the petitioner to proceed with the proseenti of s-hj
efore without,, :
laws
supe rior cou rt im fornias ;au. peth . nud ther
the laws tha’
176 Cal. Oct 1917.] MARTIN V. Sn’rmxoa Couwr. 291
nd In Y the payment in advance of the legal fees. Certain minor sub
sidiary questions are raised by respondents, going to the as
Inst filing serted insufficiency of the papers filed in support of the ap
from the
plication made to the superior court, but the principal answer
rerequlsit. of respondents is based upon our laws and their construction
a uper€s. of those laws. Thus it is pointed out that by section 631 of
the Code of Civil Procedure, “Trial by jury may be waived by
directed the several parties to an issue of fact in actions arising on
a. Hon. contract, or for the recovery of specific real or personal prop
erty. . . 5. By failing, at the beginning of each day’s ses
sion, to deposit with the cleric the jury fees and, if there be
any, the mileage for such day.”
Further, that the statutes of 1571—72 (Stats. 1871—72.
p. 188) declare that in civil eases the party in who”e favor
verdict is rendercd, before the same shall be entered, shall
pay the jury fees, and that if in any trial in a civil ease the
jury be for any cause discharged without finding a verdict,
the fees of the jury shall be paid by the party who demanded
i In the
the jury. Still further, that section 4295 of the Political
Ergo A Code forbids state, county, and township officers from per
‘s minor forming any service for which fees may be required (saving
vrongful in proceedings on habeas corpus) without prepayment of such
of this fees, excepting from the operation of this law only the state
and the - —,
and any county, city, city and coimty, public officer, board,
and de- or body acting in his or its official capacity, and that only
upon the payment by any person of the fees required by law
is.His is it made the duty of the officer to perform the required
ect that, services. And, finally, we are referred to a rule of the sil
o! more perior ‘nurt of the county of Alanaeda to the following effect:
‘ested in “In the trial of a civil action by a jury, each party is re
or court R quired daily, during the trial, at or kfnre the case is called
he court for trial each day, to deposit with the clerk the atn’,nhit of
court of money necessary to pay the jury fees, including mileage for
t his ap- •such day and one-half of the reporter’s fees. Out of the
nandate, .
money so deposited the clerk shall pay the reporter’s fees.
the writ The jury fees shall be paid out of the moneys deposited by
male by the rmrty who is required by 11w statutes o this s1;tv 10 pay
Ia the same. All moneys not req’nred to be paid out pursuant
to this rule shall be returned by the clerk w the party
right of depositing the same.”
wtion in I We have thus been at pains to set forth all of the written
laws which respondents present, Rince it s by virtue of these
without I laws that they insist that the order of the superior court of
 [17G Cal,
4i
292 u. SupEnroR Count Oct. 19:
I
petitioner’s applb’ation
Alameda County refusing to grant cone? us?
further and assert that I
was well founded. Tndeed. they go Cut
no power to grant the
by virtue of these laws the court had I to the i(
is that the right of one I
application. Herein their argument it is ho
to prosecute, his ac
so to commence, and having commenced I

a
CO Hi jI
unknown to the common St
tion in fo’nna paupers is a right IOgaiati,
and goes no further
law; it exists only by virtue of statute the ucn 11
lish law it owed its
than the statute permits; that in the Eng rules an
s respondents’ argu
origin solely to statute. Next (so run to take
ment) our adoption of the English com
of our jurisprudence was an adoptio
mon law as the basis
n of lex lion scripta, the 4 broaden

immemorial usage and custom out of

law system, and, therefore, the English
which grew the common-
statutes, however
4 sive ella
hold tl

IJ
law. Finally, the law’’ ha
ancient, form no part of the body of that denee as
law the authority of the
argument is that tinder the English code see
application rested wholly
court to waive fees under a pauper’s braced
the inherent common-law
upon statute and formed no part of coadjuc
conclusion is advanced,
power of those courts. From this the of this
in the matter, that as our
as being unescapable and controlling V. Wai/a
necessary implication.
statutes have not in terms, nor yet by 236, 70
ve fees upon such poor
vested our courts with power to wai done by
man’s petition, it cannot be (lone. that I an
ning of the lancuage of our
Little need be said as to the mea system t
makes the common law of
Political Code (section 4468), which to nor 1:
ant to nor inconsistent with
England, so far as it is not repugn
our constitution and laws, the rule
of this state. Learned, indeed exh
of decision in all the courts
austive, discussions of the
4I we need
on so pl:

and the note in 30 (1913 Struetioj

matter will be found in 8 Cyc. 366,
, 1252, [Ann. Cas, 1913E, put upom
ed,) Am. & Eng. Ann, Cas. 1222
ms to be seriously pressed Suitors
1222, 1252], But as the matter see the coma
under the statement that
upon the attention of this court,
meaning of this section Ot usc’ c
we have not distinctly defined the
is further said that our to ren:er
of the Political Code, and as it sub:
h as People v, IRis quez, —if such
decisions adverting to tfe matter (suc
Lx porte. Karlson, 160 Cal. s’Ji fart
9 CaL App. 548, [99 Poe. 9821, ; for this
. 44 71: Peters v, Peten,
382, [.Ann. Gas, 1.9121), 1334, 117 Pac
-

, ‘L’ • ‘-‘SJf 5. ]
156C-a 91, ‘21 P A N Can.:I lion ..i
trt, 157 Cal. 794, [21 Ann,
of Pasv4eva v. .8 epe.i’ibr (iou Mc CIa fire.
733, 102
51 P9 lao u29’ P lute tf 8tt’o )55 Cal, S24.
NI IF A L R A,
No °251 jJcJb,m#,j V ( ‘u 0’ t ii’, O
Pea’, 112 CV 534, N-i Am, Buucv;:
575 2 1 2*
p’,int to the I,Li’5 O(j1:L-s-

Pp 70 3u Pa” 442 ‘4 Pa ,
S.C.
176 Cal,
Oct. 1917.] MARTIN V. SUPERIOR CounT. 293
,lieation
ert that conclusion that the language of the section of the Political
rant the Code above mentioned is to be construed as referring solely
t of one to the lex non scriptu, the common law unmodified by statute,
his ac it is here proper to say that such a view of our decisions is
common completely mistaken. It would be strange, indeed, if our
further legislature should have designed to limit the applicability of
owed its the code section to the ancient and frequently most barbarons
s’ argu rules and customs of the common law, and in so doing refuse
;he basis to take into account the mitigation of their harshness and the
ipta, the broadening of the rules themselves which followed the succes
common- sive enactments of the English statutes, To the contrary, we
however hold that our legislature in its use of the phrase “common
ally, the law” had iu contemplation the whole body of that jurispru
:y of the dence as it stood, influenced by statute, at the time when the
d wholly code section was adopted. And more than that, that it em
mon-law braced also in its contemplation the great handmaiden and
dvaneed, coadjutor of the common law, equity. And in exemplication
at as our of this we need but refer to the language of this court in Katz
)lieation, v. Walkinsliaw, 141 Cal. 116, [99 Am, St. Rep. 35, 64 L. R. A.
ich poor 236, 70 Pac. 663, 74 Pac. 766]. Manifestly no harm can be
done by this construction of the language of the code, since
e of our that language itself limits the applicability of the common-law
)fl law of system to such of its rules and principles as are not repugnant
tent wit” to nor inconsistent with the spirit of our own law. And if
he courts we needed further support than that given by pure reason
s of the on so plain a proposition, it can be found in the similar con
30 (1913 struction which the supreme court of the United States has
1913E, put upon the language of one of its own statutes, “saving to
pressed suitors in all cases the right of a common-law remedy where
Lent that the common law is competent to give it,” The. supreme court
s section of the United States construes this language not to be limited
that our to remedies as they existed at common law, but to embrace
Vasque•z, such substituted remedies as might be provided by statute, and
160 CaL still furthe.r, to such relief as equity might afford, equity being
v, Peters, for this purpose considered as a branch of the common law,
.9] ; City (North. Paa:fle Nrtanishsp Co. v. hid act rid Accident Comanis—
tnn. Cas. sion., 174 Cal. 346, [163 Pac, 199] ; Knapp, Stout & Co V.
733, 102 McCoffrey, 177 U. S. 638, [44 L, E%l, 921, 20 Sup. Ct. Rep.
L, B. A. 824],)
[84 Am. But quit.e independently of this det.ermination, there is still
t to the the controlling fac.t that the pewer of the English common-law
courts to remit fees on petition in• fonna pauperis did not have
294 MARTIN a Suniuoa Count [176 Cal. Oct. 19]

its origin in any statute, but was in fact exercised as one of plaintiff
the inherent liowers of the courts themselves, quite inclepend entitJed
ently of statute. And this one wotdd naturally expeet to find render
since. imperfect as was the ancient common-law system, harsh as rega:
as it was in many of its methods and measures. it would strike common
one with árprise to be credibly informed that the common- to pay
law courts of England shut their doors upon all poor suitors enter th
who could not pay fees, until parliament came to their relict In the
Even greater would be the reproach to the system of juris p. 1093,
prudence of the state of California if it could be truly de behalf c
clared that in this twentieth century, by its codes and statutes, charged
it had said the same thing, and yet this is precisely the posi paupers
tion which respondents to this application take. court ag
r.
Respondents do cite certain authorities, such as Hoey toasse&
i,cCartky, 124 lad. 466, [24 N. E. 1038] : Campbell v. Chicago suffered
it is
& .aVortkwestern Ry. Co., 23 Wig. 490; 11 Cyc. 200, where election.
declared that this power rests npon statute, and therefore 1254, th
cannot be exercised saving under the statute. An examina plaintiff
tion satisfies us that this error in the declaration of these cation to
courts and others has arisen from a misconstruction of the be made
language of Blackstone’s Commentaries. He declares as fol plaintiff
lows: “And paupers, that is, such as will swear themselves his assoc
not worth five pounds, are, by statute (Stats. 11 Hen. VII, court to;
c. 12), to have original writs and subpoenas gratis, and coun the chief
sel and attorney assigned them without fee; and are excused c. 12, an
from paying costs, when plaintiffs, by the statute (Stats. 23 In the l(
Hen. VIII, c. 15), but shall stiffer other punishment at the dis Manning
cretion of the judges. And it was formerly usual to give such in the Si
paupers, if nonsuited, their election either to be whipped or that act,
pay the costs: though that practice is now disused.” It will would sw
be noted that Blackstone does not found the existence of the the office:
power upon statute. He is merely discussing the exercise of court the
the power under existing statutes, which is of course a wholly that tile i
different matter. But a very brief review will establish that 4 tiff was e
the power was an existent power, recognized and exercised dente Ute
t
before the enactment of these or other acts of parliamen :;r\ S., addej
Thus says Marsha1l in his “Law of Costs in all Suits and charged.
h
Proceedings in Courts of Common Law” (page 347): “Wit is that th
a view to enable snch poor persons as have not ability to pauper is,
the expenses ineidental to the prosecution of an action to en ported b’
’z
%
force their rights, they may, upon such inability being show
the
Those de
be advntd to sue in ‘rn’a nvnLp’rit When so admitted have beet
176 Cal Oct 1917] MuniN i. SLPLRI0R C LRT i
4
2;

s one of plaintiff is exempt fiom the pa3mcnt of court feec and he is

id€ pend entitled to the service of counsel, arid of an attoine who
t to find render their services without reward This prixilege so far
m, harsh as regards the exemption from court fces \as conceded at
id strike N common law , for where the plaintiff swore th it he wa unahie
omrnoIi- I to pay for entering his pleadings, the officer was bound to
r suitors enter them gratis.”
ix relief In the case of 3lavnrordi Pale, 82 Eng Rep Full Reprint ,

Df juris p 1O3, S C 1 Kehle’s Rep 913, the motion sas made on

rub de- behalf of a plaintiff appl nur in. [anna paupert.s to be di’.
statutes charged of co.ts ‘‘there being none at common lay, and
Lire posi paupers theicbx diccharged ‘‘ Discus.ion followed, an I ‘ the
coart agreed with Twisden that thc corrtii umd practice 1 i
1
Hoey ; to assess costs, the plaintiff (in farina pauperts who ha
Ckzcago I suffered nonsuit) must pay them or submit to be whipt at
iere it is election.’’ In Bnuz.t v. Wardle, 133 Eng. Rep., Full Reprint,
herefore 1254 the principal question before the justwes was whether a
xamina- plaintiff upon the institution of his action must make appli
of these cation to sue in forma pau.peris, or whether Luch order could
i of the be made after the commencement of the action to enable a
s as fol plaintiff to prosecute it in farina paupenc Tindal, C J , and
‘mselves I his associate iusticcs held that it was within the power of the
3fl VII, court to make the order aftei the commencement of the action
ii coun- the chief jusiee sa inz ‘‘After all is the Stats 11 Ii \ II,
excused c 12 anthing more than eon’ii maton of the common I’n
tats 23 - In the learred report of the Sci Cahts cae in m bi othe
the dis- ng p 41, note (d), a case is referi ed to that occur Nd
1
Main
e such in the Stats 15 Ed IV twcnt ‘ears tx fore the passmnir of
PPC 0 that act from which it appears ti at at common law if a r ‘ t.
It w ill would s ear tflat he co’ild not pa for c nt’ i g his jnc it ii .15
e of the the officer was bound to cuter them qi i and that iii thi’

V
C ot
0
4 court there was a piesignator jrUr is ru’
that the proper i for u to c n
coneluQ’ ta
eenic to mc
t at t plain
ish that tiff was entitled to be admitted to i•n. fenton pauperhs, pen
sue

U
,
L 4 dente tile, and the i o’u un
tnat

J added “I am also of opunon to this

,
b di& I a a •
st

21 sin
1 MauP
an

4 Ut c1i
U aiI 4 char ged I he objection to the oi dci t mx t
1 bç Coitman
Wit’ is that the court has no power to ath’ it a peiU tc sue in forum
to e 4 paupern pendentc 1 Ic, and the objet I or is ( meet to be sup
tc

S°t U
C’ I pc’ ted ox the reecnt de iio”s in ti umu I cxs m t
lb se dccnitns hong’ e’, arc opti to ths o at ‘is V 1
ttco I haxe hoer aircads wade— +flt ti i’L n - ‘oh rm He to

I
 I

MARTiN v. Suniuoa Cent. [176 Cal.

296
j
not appear to Oct. 19
costs, and that the attention of the court does
authority of
have been called to the undoubted common-law conside
eris. The
the court to admit parties to sue in fonna jiep ments
shows that
authority cited by my lord from the Serjeants’ case questioi
d prac-
so early as the Stats. 15 Ed. IV it was the establishe it is oh
various
tice to admit a party to sue in forma p1ruperis: and intenti
es bein g so
instances are to be found in the books of parti We finc
” This case,
admitted after the commencement of the suit with tb
as conclu-
decided so recently as 1841, may well be regarded :. 4295 of
and d
the in its constnietion of the common law of Engl have to
law the
controlling upon our section of the code making that fees, pa
any con-
basis of our jurisprudence, and this quite apart from Neither
of Engl and
sideration of the modifications of the common law of the
worked by acts of parliament. deny tc
ion
It is pointed out that our Code of Civil Procedure (sect uecessaj
r in a Jim-
91) makes express provision for the right of a suito eases W
cris, while
flee court to prosecute such an action in. forma poup remitte(
icable
no such express provision of our statute is made appl and in.
of Civil
to our courts of record. Thus section 91 of the Code dent w
nce “shall
Procedure declares that the payment of fees in adva fees to c
faction
not be exacted from parties who may prove to the satis
ç.
e of action Our
of the presiding justice that they have a good caus urged t
the
and that they are not of sufficient pecuniary ability to pay moving
erited
legal fees.” Again we say that it would be an unm these ap
rn-
reproach cast upon the legislative branch of our state gove The pla
his
meat to hold that it meant to permit a suitor to prosecute declared
amount
action in. forma pa.upcris in a justice court, where the in the
the liti-
involved could not be large nor the consequences of return d
suitor
gation great, and yet designed to forbid such a poor that the
land
from prosecuting his action according to the laws of the being a
d be all-
in a court of record, where rights might and coul tion, am
. No
important and his recovery of the utmost consequences was refu
legis-
such reproach justly attaches. It is quite plain that the
rd to adm it upon th
lature, recognizing the power of courts of reco
the more is r
suitors in fr-ma pauperLs, designed to save all question in
on, of the c
case of inferior courts not exercising common-law jurisdicti
h exist in s
and that it is for this reason that the power whic
essly that the
our courts of general jurisdiction without statute is expr
court, it
conferred upon the inferior courts of limited jurisdiction.
to that plal
With the power in our superior courts thus declared,
ecute refusing
admit suitors to commence or having commenced to pros
next right to
their actions in fonna pau.peris in all proper cases, the
Cause wit
quacy of
176 Cal.

.ppearto Oct. 1917.] MARTIN v. SuPERIoR CoURT. 297

ioritv of
is. The consideration is whether or not the legislature has by its enact-
tow’s that ments designed to curtail that power. Quite aside from the
cd prac- question as to the power of the legislature to do this thing,
I various it is obvious that only the plainest dec]aration of legislative
being so intent would he construed as even an effort to do this thing.
his case, We find no such expressed intent. All of the statutes dealing
collelu- with the payment and prepayment of fees, such as section
and and 4295 of the Political Code, are general in their nature and
law the have to do with the orderly collection and dicposition of the
any con fees, payment or prepayment of .hieh is prescribed by law
England Neither individually nor collectively are they even susceptible
of the construction that the design of the legislature was to
(section deny to the courts the exercise of their most just and most
in a jus necessary inherent power They have applicability to all
while cases where the court has not, in the exercise of that power,
plicable remitted the payment of the fees on behalf of a poor suitor,
of Ciii] - and in eeiy instance the court’s order to this effect is suffi
e “shall dent iarrant to evciy officer eha”ged iith the collection of
isfaction fees to omit the pcifoimance of that duti in the specified case
)f action Our next considetation is the nariow one of objections
pay the urged by respondents to the sufflueney of the petitioner’s
imerited moving papers addres 11 to the superior court Certain of
goiern these appear in the xenfled returr :f the adge of that court
2cute his The plaintff’s verified petition before the superior court
amount declared that no person other than himself had any interest
the liti- in the successful prosecution of the action. The judge’s
r suitor return declares that he had information and belief to the effect
the land that the attorneys for the plaintiff had a contingent interest,
I be all- being a contingent fee, in the successful outcome of the litiga
ces, No tion,and that for this added reason the plaintiff’s application
he legis- was refused, But if it he conceded that issue was here joined
a admit upon the direct averment of plaintiff’s petition, something
‘n in the more is required as to tee nature, source, origin, and sonndness
sd iction. of the court’s belief. before its order can he. upheld on this
Ixists in cround. This srowmg s not made, Yet in view of the fact
xriiessiv that the atorncvs for the plaintin were before the superior
ion, court, it could most easily have been made. Next, it. is said
ared. to that plaintiff was rot rernediloss, since the order of the court
- — a, i ‘i 1
,‘-- •—

:he next riL’hr to a tra he jury, but left onen to him the ti id of his
t,,Sek nta,i ‘ ;aCSc it ,

quacy of such a response. Where the suitor was: allowed to

 MARTiN 1’. 3upcRIoa C4wwr. [1G Cd. Oct. 191
298
Lu
proeente in fonna pawjxris, all the rights which were open
imike
(5) The
to hint upon the payment of fees were open to him by virtue
merits n
of the order, and every ofFker was required to perform his
the ta’:ts
duty without the payment of fees as fully as though the
at law, a
legal fees had bevn paid. Precisely as anciently such a
cause of
plaintiff in form a paupiris was entitled to prosecute his
action “after the course of the common law,” so in this state erso;i v.
he is equally entitled to prosecute his action under our etnt 66 Cal.
stitution and laws, and the right of trial by jury is one of 12, [92
the most important of these. Therefore we will not say that of this
a suitor who can pay court fees shall have his trial by jury support
and the suitor who cannot pay court fees must be content to going to

go to trial without a jury. The law does not say this, and not ealle
we will not read such a declaration into the law. mon lass
Respondents’ final contention is that petitioner’s moving cause of
papers before the superior court were defective. (1) They be “whi:
were entitled “Notice of Motion for Leave to Site in F’orma the supt
Pan pens,” whereas in fact it was not a motion for leave to asserted
sue, but a motion for leave further to prosecute the action affidavit
in fonna paw perk. Suffice it here to say that the mi’;nomer over, the
could have misled, and in fact did mislead, nobody. (2) The a suffiele
moving papers were imperfect in not defining what was cause of
meant by the request “for permission to prosecute the above- sufficient

entitled action ia fonna panperLc,” since the phrase “in of satisf;

bmw pan perk” is not us°d in the statutes of this state. But action to
supportii
we cannot yield acquiescence to the suggestion that the
learned judge or the learned attorneys for the defendant did case, the
not fully undewtand the meaning of this Latin phrase so Nor won
frequently emjiloyed in the common law. (3) The moving court in
papers are said to be deficient in failing to specify the remis all other
don of just what fees was sought by plaintiff. It seems him an c
quite manifest that he sonp’ht. as he had the right to seek, the requ
For U
the remission of all fees eiuw;e.l by law. (4) It is said that
there was a failure to show that the application ;vns season ing to

abiy made. What we are to understand by this h not made aceordin:

plain. We have shown, and ind&d quoted from the deci Mclvir
sions showing, that the right to ptn:eeite ut farina pt,uperis coneuirre
was fully recognized n ith the rieit to .‘°nwence an action
in fonina uperis. The right here sought is the right t* StTAV
prosecute after the plaintiff had paid the oriczinal filing feet
f.’r the emnueiwq’r,witt •f t :w:inn. C.”tainly by having the •,1Tec
rid this first fee he d14 ret •!t’Hr hn,’vif of the rirht to
 ..;.

[in; CaL L
Q
tct 1917.] M.wr1N V. Susnioa Couat. 299

were OJ’fli .pae ml tire apflinuion for a rcmisirin of subeqnent fees.

by virtue panied by an affidavit of
ç5) ‘flit application was aca’ii
1
‘rforzn his merits made by plaiti;? and th-claring ‘‘that he has stated
hough the 4he facts of his said suit to said 0. A. Linn, Esq., attorney
Ly’ such a j law, and is advised that he has a good, sufficient, and just
seente his tause of action against the defendant” Such ca cs as Nick
state v. Califonda Raisin Co., 61 Cal. 268, Pco’1e v. Lane,
r our eon ‘66 Cal. 235, [5 I’ac. 157], and Jensen v. Don, 9 Cal. App.
is one of 18, [9$ Pac. 45], are relied c’n in suj’p’n’t of thy ticflcicittty
t say that of this affidavit of merits. The cases are in ‘.‘‘t. hut to
J by jurt support such an application as this, an affidav
i of rnPrits
4
2Ofltdnt to going to the just ice and sufficiency of the cau of action is
this, and -, not called for Ii) our law, nor was it called for by the corn

juon law. At common law the unfortunate suitor whose

‘S moving 4ause of action proved to be nonmeritorious stood liable to
(1) They :: “whipt.” Furl her, we arc advised that the attention of
Hi Por;na the superior court was not in any way directed to this
leave to asserted insufficiency in the affidavit of nierits. An amended
he action affidavit could and would doubtles have been filed. More-
IflinOnicjr over, the case was at issue on mattvrs of fact, arid there was
(2) The sufficient showing in the complaint at least of a meritorious
vhat was 4Scause of action. Therefore, while the court may call for a
he above r suffleinit affidavit of meritx, or indeed for any other form
rase “in • of satisfactory evidence before issuing its order allowing an
tie. But action to be cOmherlI’ a! in fornia puperis, the need of such
that the t:. support lug affidavit becomes very much less when, as in this
tip ut did case. the action has l’cen brought and is at issue on its fu.tt.
so Nor would such a defective affidavit of merits justify the
It)OV;ng court in refusing to the poor suitor the relief ‘night, if in
e remis all other respcct he was entitled to it, without at least giving
It seems him an opportunity to present an aeiavit measu ring up to
to seek, the recjuirements of the Jaw.
! that For these nasons we hold that the court errr’d in refus
trig t’; cT-ant the order prayed for. Let inIi!tte Issuc
::j :4(h accordingly.
•i.

f’ its rrj$ Melvin, J., Lasdor 3’., Lorigan, 3’., and Angc!iotti, C. 1,
II 1i”flon concurred.
right to
ITiL fees STIAW, .T.—T concur in the judement and in all of the
opn±; n of Mr. .ti;stiee llt:TISløiw txc,cpt the slainments 1
tL. ;‘Iet t!:! -:s;n n htw of England.’ rcicrred to
 I
300 MPKS
KI
U
1 V. ALL PERSoNS [170 cliI, I
—
Oct 1917
iR’ n4403of’LePi i1lr i€’ 31
‘flth.”- t’’ “not’7L’ ’
4
‘ittour t; ttr
I I?. i1
srt-n lax, ,: 1 pji t it Ia v “as a 1 I y
4
d +,’p. it t,tz

th t A, on Apt. 13, 18311. (Stats,

w_n ton
p 219 Th
-na— Li ttrL”
I I. ,

prof cition, as lie opinton shoas, is not nuecary to the onoet

deei’ion, for the right to sue Lit forma pdUfe119 existed at 4
common law in England before any statutes reaulatory Sfl’AW,
then of were ena lcd, In l”30 there were in England. I MoEn tilt.
have no doubt. many CeRt tat acts of parhament in for e of land u
itnib no ‘n’ tnid L ‘-i x;ere al vpd as parts of unr liv
by ftc aet of oar lej slatitre. The statement of ;4hat is j-Ji’ntff.
neluded in that se”Hon needs more qualiPeation and elaho. I The udn
anon t\’n Is iven to it in the main opiti ion. I t’i nk it I ‘ C pi
nab, isable to at [nnipf to state any rule on the subject, cx- the: i-of.
cept ‘n eases tihete it is necessarily involved. The fln
4 was acquit
1 J,, concurred.
Slnss
4 prior to h
mary, 188
ronv’ ci s
[S. F. No t5’t5 P uartmnt Oa —Oomhpr 13 l7 3 1 a
is no
Jl1N G. ELCMPKE. Appellant, v. ALL PERt,ON9, etc.,
that he ‘it’
Respomlaits. 1
rer oath
HucnT e-p Wrr’_ pwE._roJnr4rIoN__st.pncr CY 2? EVmFNCE, err- i
In this action troagat under the MeEnerney kct to declare and L it as
establish plaintiff’s title to a parnel of land nhrein certain —or-
duly proha
Sons claiming to be the devisees of the deceased wife of the pain
to rcspond
tiff appeared an I opposed the plvntiff’s cla’w, it is held the evi
nec is quffie r to support the finding that ‘he real con’idn—’t- same
tIcu for the lend fran the ha-’ and to the aAe mdcv which the -- 3 Appellap
1’ o’nd rrcoip ta c I univ 15 sap-
the
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j jjZ p—t(-r’. €‘“‘t

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it’ m is any r raVe gron” I ‘ e wh eh “ v can be snpponL
the c’ tree
APPEAL from a judgment of the Paperer Court of the either expi
C art! Count) of S a’ Feat eo, Geoige A, Stuiter ant land C
JuLue,

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