Opinion
No. 8618DC45
Filed 5 August 1986
Appeal and Error 19 — appeal as pauper denied — no abuse of discretion The trial court did not abuse its discretion in refusing to allow petitioner to appeal as a pauper from the magistrate to the district court when her affidavit showed she owned a home worth $27,150.
APPEAL by petitioner from Bencini, Judge. Order entered 11 October 1985 in District Court, GUILFORD County. Heard in the Court of Appeals 3 June 1986.
No brief filed by plaintiff appellee.
Central Carolina Legal Services, Inc., by Stanley B. Sprague, for petitioner appellant.
Judge WHICHARD concurring in the result.
Judge JOHNSON dissenting.
The petitioner appeals from an order of the District Court of Guilford County which denied her the right to appeal from a magistrate to the district court in forma pauperis. On 1 October 1985 a magistrate entered a judgment in favor of the plaintiff against the defendant petitioner for $47.00 plus court costs. She filed a petition to sue as a pauper in the district court. The affidavit in support of this petition showed that she owned a house and lot with a tax value of $27,150.00. The assistant clerk of the superior court filed an order in which she concluded, "[i]n view of the Affidavit and Certification appearing above, it is ordered that the individual petitioner in the above entitled action is not authorized to bring suit in this action [a]s a pauper." Judge Bencini in an order made the same conclusion and recited "[petitioner] owns a home worth $27,150.00 or more and has personal property that is unencumbered."
The petitioner appealed.
The question posed by this appeal is whether it was error not to allow the petitioner to appeal as a pauper from the magistrate to the district court. G.S. 1-110 provides for a person to bring an action in the district court as a pauper but does not provide for an appeal from a magistrate as a pauper. G.S. 1-288 provides for an appeal as a pauper from the district and superior courts but does not provide for an appeal from a magistrate to the district court.
If a defendant against whom a magistrate has rendered a judgment may appeal as a pauper it is within the discretion of the judge as to whether it shall be allowed. See In re McCarroll, 313 N.C. 315, 327 S.E.2d 880 (1985). We cannot hold the court abused its discretion by not allowing the petitioner to appeal as a pauper when her affidavit showed she owned a home worth $27,150.00.
We do not believe our decision in this case violates the constitutional requirements enunciated in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) upon which the petitioner relies. That case holds it is a violation of due process to deprive a person of the right to file a divorce action if the person cannot pay the court costs. In this case there is evidence that the petitioner had the means to pay for the costs of the appeal. Adkins v. E. I. Dupont de Nemours Co., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43 (1948) deals with the interpretation of a federal statute in regard to appeals. It is not applicable to this case. The petitioner also relies on cases from other jurisdictions which are not binding upon us.
Affirmed.
Judge WHICHARD concurs in the result.
Judge JOHNSON dissents.