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230 N.C. 515

53 S.E.2d 457

Perry v. Perry

Supreme Court of North Carolina

Decided May 25, 1949

Supreme Court of North Carolina · decided 1949-05-25

Cited by 2 later decisions — most recently May 2004

2 state decisions

Key passage — most relied on by later courts

“as a subterfuge to escape payment of costs which otherwise might be taxed against the [party].”

quoted by 1 later decision, including 164 N.C. App. 329 - Griffis v. Lazarovich

Good law ✅— No negative treatment on recordhow we know

Decided 1949-05-25

View the full empirical analysis of this case →

Per. Curiam.

¶1 The statutory provision for appeals in forma pauperis is to preserve the right of appeal to those who, by reason of their poverty, are unable to make a reasonable deposit or give security for the payment of costs incurred on appeal to this Court. It is not to be used as a subter *516 fuge to escape payment of costs which otherwise might be taxed against the appellant.

¶2 The co.urt below found as a fact, on admissions made in open court, that defendant is now earning $300 per month. Even so, the defendant made a motion to be allowed to appeal in forma pauperis, supported by the statutory affidavit. The court, in allowing the motion, at least impliedly found that the affidavit was made in good faith and that the facts as therein stated are true.

¶3 If defendant is earning $300 per month, he is able to make a reasonable deposit to secure the payment of the costs of his appeal. On the question of his ability to make such deposit, the findings of the court on the one hand, and the defendant’s affidavit and the order based thereon on the other, are contradictory. This raises a serious question as to whether the affidavit was made in good faith.

¶4 In view of this situation, the trial judge should be afforded an opportunity to review the motion and reconsider his order based thereon, to the end that he may determine whether the defendant is in fact entitled to appeal in forma pauperis. For that purpose only the cause is

¶5 Remanded.

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