Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1898-12-21
RIGHT TO SUE In FORMA PAUPERIS.
Territorial Supreme Court Clearly Defined
Standing Of Poor Litigants in Courts
Decision in Eiectment Case.

In the session OF the lellllolldl Su-
preme court held Saturday, December
II, the following opinion, which was
concurred in by Chief Justice Mills and
Associate Justice Parker, was handed
down by Associate Justice C%rumpacker,
| Justices McFie and Leland not sitting
in the case:
Case No. 10, d. e. Bearup, plaintiff
in error, VS.. John E. Cotfey, defendant
in error, error from the district court
of Socorro county. This was an action
in ejectment brought for the recovery
of certain mining grounds described in
the declaration.
The plaintiff in error was duly ruled
on the 2Sth day of January, 1897, which
was during a regular term of the dis
trict court of the 5th judicial district
of the territory of New Mexico, within
and for the county of Socorro, to give
bond for costs in the sum Of $500 in said
cause within so days from and after the
date of said order. The order was later
extended to the first day of April, 1897,
! dllu vi 20 lllClc a llc III lllC
office of the clerk of said court, by the
plaintiffs in error, an affidavit in pow
erty in conformity with the statute;
later, said court entered judgment
abating said cause for failure to give
bond for costs. On October s, 1897,
| plaintiffs in error filed a motion to set
aside the Judgment of abatement,
which motion was overruled and the
case was taken to the supreme court
on a writ of error.
Each of the alleged errors complained
of grows out of the courts ruling in
sustaining the motion of defendant in
error to abate the cause for failure of
plaintiffs in error to give security for
costs, and the adjudication of abate-
ment of the cause. Where, as in this
case, the record shows the making by
plaintiffs in error, within the time by
which they We're ruled to give security
for costs, of a sufficient oath that they
We're too poor to pay costs, the material
question is whether or not such oath is
IN answer to the rule. 1t is solvable
by the construction of the statutes in
volved, which read as follows:
Compiled Laws of 1897, section 1892:
In all cases the plaintiff, on motion of
any person interested in the suit or
costs, may be ruled to give security for
costs, and in case he shall fail to do so,
on or before the first day of next term
after such rule, the cause shall abate.''
Section 1893: "If any person wishing
to institute suit, or having lone so,
shall make oath that he is too poor to
a costs, he shall have any and all
process Of the court free of charge"
These laws, sequent sections of one
enactment, tested by the accepted prin-
each other and are readily harmonized.
They evince the Legislative intent clear
ly to be that the courts of justice shall
be open to every person. rich or poor,
who has suffered a legal injury to his
lands, goods, person or reputation. In
deed, any other construction would rem
der nugatory a beneficent law. Given.
then, the oath required by section 1898, |
the statute is mandatory, and by vir-
tue thereof, plaintiffs in error were Sc
cure in their right to sue in forma pau
peris as well after as before the instl:u-
ton of their suit; and such oath, stand
ing in the stead of a cost bond, was suf-
ftcient answer in this case to the rule
for security In this case for costs.
The assignment of errors we find well
predicated, and the cause Is reversed
with direction to the court below to set
aside it's judgment of abatement, AMI to
proceed in accordance with the views
here expressed.
The syllabus in the case prepared BY
the court reads:
Where a plaintiff makes oath re-
quired by section 1898 onf the Compiled
Laws of New Mexico, 1897, after suit is
and prior to the time in
which he is ruled to give security for
costs, it is error for the court to abate
the cause for failure to give such Sc
the oath standing in the stead
the cost bond being sufficient answer
to the rule"