Plaintiff appeals from an order entered in the Saginaw County Circuit Court on October 18, 1982, dismissing his complaint without prejudice, for the reason that plaintiff had not tendered the necessary filing fees when he attempted to institute this action._
*383 Plaintiff attempted to file his complaint against Mr. Ramah on February 25, 1982. This complaint alleged that Ramah’s ineffective assistance of counsel (legal malpractice) had caused plaintiff to be wrongfully convicted and incarcerated for crimes which he had not committed. Along with this complaint, plaintiff filed an ex parte affidavit of indigency and a motion for waiver of fees and costs, averring that he was limited to prison wages through his institutional assignment, which wages he needed for the maintenance of his personal hygiene. 1
The Saginaw County Circuit Court judges disqualified themselves because of Mr. Ramah’s membership in the Saginaw County Bar Association and active practice in Saginaw County. Consequently, this matter was reassigned to a visiting judge from Bay County. On June 1, 1982, the visiting judge denied the motion to waive fees. The trial court further ordered that the filing fees be paid within 90 days from the date of the order, or else plaintiff’s complaint would be dismissed without prejudice. When the filing fees were not tendered, the court entered an order on October 18, 1982, dismissing plaintiffs complaint.
Plaintiff then claimed an appeal to this Court. On November 5, 1982, plaintiff filed a motion in this Court to waive the fees on appeal. This motion was granted on December 7, 1982.
On September 2, 1983, Mr. Ramah filed a motion to dismiss plaintiff’s appeal on the basis that plaintiff had failed to make service of his claim of appeal in accord with GCR 1963, 804.1(l)(c). Apparently the claim of appeal was sent to Ramah’s *384 former business address and he avers, in an affidavit filed in this Court, that the claim of appeal was never received. In his answer to the motion to dismiss, plaintiff admitted sending the appellate documents to Ramah’s old business address, asserting that this was the last known address of Mr. Ramah.
I
We first consider whether Mr. Ramah’s motion to dismiss should be granted. Ramah concedes that GCR 1963, 804.1(2) and 107.3 allow a party to make effective service by mailing the applicable documents to the last known address of the attorney representing the opposition. He contends, however, that, because original service of the complaint and summons was never made, GCR 1963, 107.2 precluded service by mail of the appellate documents. While Ramah’s interpretation of the court rules may well be correct as a general proposition, we do not believe it controls this dispute.
Although plaintiff sent his complaint to the Saginaw County Circuit Court clerk and the clerk began a lower court file for this matter, until such time as the filing fees were actually paid or the circuit court waived these fees, we do not believe that an official action had been commenced such that plaintiff was obligated to serve Mr. Ramah with his complaint. GCR 1963, 101 provides that an action is commenced by the filing of a complaint. However, GCR 1963, 120.1 recognizes that, when a litigant submits a complaint accompanied by an affidavit of indigency,. the complaint is a pleading "to be filed”. The mere tendering of the complaint to the clerk of the court without the *385 appropriate fees does not constitute a completed "filing”.
GCR 1963, 120.3 specifically provides that a litigant claiming indigency may submit an ex parte affidavit setting forth facts which show his inability to pay required fees and costs. Given this fact, we believe that GCR 1963, 120 impliedly recognizes the propriety of ex parte proceedings until the required fees are actually paid or are waived. Until one of these occurs, there is simply no lawsuit officially pending to which the potential defendant is entitled to service. GCR 1963, 804.1(l)(c) requires a claim of appeal to be served upon "all other nondefaulted parties to the cause or their attorneys of record”. Here, however, Mr. Ramah is accurately characterized as a tentative or potential defendant or party. Until plaintiffs complaint was officially accepted for future judicial proceedings, service of the complaint was not required.
Our holding does not prejudice the rights of Mr. Ramah or similarly situated persons. In the event that the lower court had waived the filing fees, plaintiff would have been required to effect service in accordance with the court rules. Assuming the official acceptance of plaintiffs complaint for further proceedings, Mr. Ramah would not have been deprived of any of the procedural or substantive defenses available to any other defendant in an action in which the filing fees have been paid.
The motion to dismiss is denied.
II
We now turn to the merits of plaintiff’s appeal. We reject plaintiffs claim that the federal constitution mandates the waiver of the filing fees in
*386
this case.
2
While indigent prisoners are guaranteed access to the courts, and this guarantee requires the waiver of filing fees in criminal appeals and petitions for habeas corpus relief,
Burns v Ohio,
In
Boddie v Connecticut,
The Supreme Court of Michigan, however, by promulgating GCR 1963, 120, has extended an indigent’s right to the waiver of fees beyond what is required by the federal constitution. GCR 1963, 120.3, the rule which plaintiff relies on, provides:
*387 "In instances where the person is not receiving public assistance, the court shall order waiver of the payment of all fees and costs as to a person in the action, required to be paid by law or court rule, or shall order the suspension of the payment of those fees or costs until the conclusion of the litigation upon that person submitting to a judge of the court an ex parte affidavit stating facts showing that person’s inability to pay those fees and costs because of indigency.”
The accepted rules of statutory construction have been held to be applicable as aids to discovering and effectuating the intent of the Supreme Court in its promulgation of a particular rule.
Greek v Bassett,
In light of the foregoing, GCR 1963, 120.3 seemingly requires the trial court to waive fees and costs if the litigant seeking the waiver submits an affidavit setting forth his inability to pay the fees and costs due to indigency. In dictum, this Court, in
Bachor v Detroit,
*389 In this case, two affidavits relating to plaintiff’s indigency were filed before the court’s ruling which denied the requested fee waiver. Plaintiff’s first affidavit stated: (1) that he was a prisoner at Marquette Prison, (2) that his "only wages are the prison wages of his institutional assignment”, which wages he needed "for the maintenance of his personal hygiene”, and (3) that he had insufficient funds to pay the costs and fees necessary to commence and pursue his lawsuit. Plaintiff’s second affidavit 4 specifically represented that he had only some $5 in his prison account and no income other than the wages from his prison job of approximately $20 per month.
Given plaintiff’s affidavits, we conclude that the trial court erred in denying the waiver of fees on the document filed. The court assumed that plaintiff had no need of income because he was a prisoner 5 and, therefore, concluded that his prison wages could be used to "pay the minimal filing and service fees”. However, this assumption conflicts with plaintiff’s affidavit, and the trial court’s order fails to reveal that any investigation was conducted to obtain information supporting its assumption. Thus, we remand this matter to the trial court for further proceedings. The court may, in its discretion, conduct an evidentiary hearing to determine plaintiff’s status as an indigent, require a new affidavit from plaintiff which sets forth his current financial status, request an affidavit from appropriate representatives of the Department of *390 Corrections familiar with plaintiffs financial status or adopt some similar procedure to discover plaintiffs true financial state. The trial court may not, however, refuse to waive plaintiffs fees and costs on an assumption which is unsupported by any record evidence.
Remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
A second motion to proceed in forma pauperis and for appointment of counsel was later filed. This motion was supported by a second affidavit, stating that plaintiff had some $5 in his prison account and monthly wages of approximately $20.
We do not address whether any provision of the Michigan Constitution requires such a waiver as the issue has not been raised or briefed.
This order provides:
"Leave to appeal considered February 19, 1982 and, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we vacate the orders of the Court of Appeals which denied plaintiffs motion to waive fees and dismissed plaintiffs appeal, and remand the case to the Court of Appeals for further consideration. Under the circumstances, information which showed plaintiff may not have been indigent in May or October, 1980, was insufficient in itself to overcome plaintiffs affidavits relating to his indigency in April, 1981. GCR 1963, 120.3. On remand, the defendant may provide the Court with information indicating that plaintiff is not presently indigent. GCR 1963, 120.6. We retain no jurisdiction.”
Although the second affidavit was dated-stamped June 11, 1982, it was referred to in one of the court’s orders denying the waiver of fees, which order was date-stamped June 4, 1982. A typewritten date of May 24, 1982, appears on this second affidavit.
One of the court’s orders denying the fee waiver stated that because plaintiff was a prisoner "his basic needs should be taken care of without resort to his earned income”.