163 S.E. 19 | W. Va. | 1932
This appeal involves the correctness of the chancellor's action in dismissing plaintiff's second amended bill for non-payment of costs incurred in a former appeal to this Court.
Mike Courey Cassis died in 1919, leaving a widow and children as beneficiaries of his estate. The Beckley Department Store, in which Casis had a one-fourth interest, was appraised at $22,317.13. Cassis' one-fourth interest in the partnership was advertised and sold, at public auction, to the remaining partners for $5,200.00. In 1922, the administrator brought suit, claiming, among other things, that the leasehold had not been taken into account, and that the estate was entitled to a one-fourth interest therein. A demurrer to the bill was overruled. This Court, on March 1, 1927, held that said demurrer should have been sustained on the ground that such suit could not be maintained unless such omission is charged to be the result of fraud or mutual mistake, reversing the case and decreeing to appellants their costs in and about their appeal sustained. File, Admr., etc. v. Bsharah,
This Court, in Hannah v. Lumber Company,
The affidavit filed was ostensibly under the provision of our Code, which allows a poor person to sue upon making affidavit that he is pecuniarily unable to pay fees or costs. Code, chapter 138, section 1. The right of a personal representative to make such affidavit is challenged by the defendants as being without the spirit of this statute. The rule is stated in 24 Corpus Juris 920, that the privilege by statute allowing suits to be brought in forma pauperis is a personal one, citing Smith
v. Louisville N. R. Co.,
The administrator in the instant case says that he has no funds, assets or property in his hands or in any way accessible to him as such administrator, and that he is pecuniarily unable as such administrator to pay costs or fees. The record shows that several thousand dollars came into his hands as such officer. He has evidently paid it over to those entitled thereto. On this showing may we say that the court has abused its authority? Whether an affidavit such as this may properly be filed by a personal representative need not now be determined, because even if the filing of such affidavit by a personal representative be proper (a matter not decided), this court cannot say, that, under all the circumstances of this case, the lower court has abused its discretion.
We are of opinion that the court had the power to impose upon the plaintiff the payment of costs as a condition precedent to the filing of an amended bill, upon the history of the entire litigation, and to dismiss the same upon a failure *504 to comply with its edict. Courts are given a free hand with the question of costs and it is only upon flagrant abuse that its action will not be supported in this forum.
Affirmed.