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Neubeck v. Holmes

Neubeck v. Holmes, 44 App. D.C. 67 (D.C. Cir. 1915)

Court: Court of Appeals for the D.C. Circuit · U.S. Courts of Appeals
Decided: November 1, 1915
Docket: No. 2823
Judges: Shepard
Citations: 44 App. D.C. 671915 U.S. App. LEXIS 2677
Disposition: Reversed.

Cited by 2

Syllabus

Statutes; Pooh Suitoks; Costs. 1. Secs. 175 and 176, D. C. Code (31 Stat. at L. 1219, chap. 854), relating to the prosecution of actions without the payment of costs, have been repealed by the act of Congress of June 25, 1910 (36 Stat. at L. 806, chap. 384) on the same subject. (Following Sale v. Duckett, 43 App. D. C. 285.) 2. An alien is not entitled to prosecute an action in the courts of the District of Columbia without the payment of costs. (Construing act of Congress of June 25, 1910, 36 Stat. at L. 806, chap. 384.)

Summary

Hearing on an appeal, specially allowed, by the defendant from an order of the Supreme Court of the District of Columbia denying a motion to vacate a prior order granting the plaintiff permission to file an action without the payment of costs. The Court in the opinion stated the facts as follows: Plaintiff, Owen Holmes, who began his action against Neubeck & Company in the supreme court of the District of Columbia, on October 27, 1914, filed an affidavit in support of a motion to proceed without payment of costs, stating that he had been twelve years in the United States and was a resident of the District of Columbia; that he was without means and unable to raise sufficient funds to pay the costs of suit, and, having a just cause of action, asked permission to file his suit without the prepayment of the usual costs. Order was made October 27, 1914, granting this motion. Defendant moved to vacate the order and dismiss the action on the ground that plaintiff is not a citizen of the United States. This motion was verified by affidavit. It was overruled and defendant has been allowed a special appeal therefrom to this court.

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Opinion of the Court — Shepard

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Mr. Chief Justice Shepard

delivered the opinion of the Court:

The leave to prosecute without payment of costs was based on sections 175 and 176, D. C. Code [31 Stat. at L. 1219, chap. 854].

It-has been heretofore held that those sections were superseded and repealed by the act of Congress, June 25th, 1910 (see 36 Stat. at L. 806, chap. 384). Hale v. Duckett, 43 App. D. C. 285-287.

It was said in that case, “The apparent intent of Congress was to give the widest scope to its operations, and there is nothing to show that the courts of the District of Columbia were to *69 be excluded. This being tbo case, it had the effect to repeal or supersede all laws of the District in conflict therewith, and must control in this jurisdiction when it is invoked for the benefit of poor persons.”

As plaintiff does not represent himself to be a citizen of the United States, he is not entitled to the benefit of this act.

The order permitting the plaintiff to proceed with his suit, without payment of the costs required, is reversed, with costs, and the cause remanded with direction to overrule his motion and dismiss his suit unless he shall deposit the required costs.

Reversed and remanded.

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Cited by 2 cases

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Relies on it most ⓘ

Nash on Behalf of Takeshi Hashimoto v. MacArthur General of the Army184 F.2d 606 (D.C. Cir. 1950)
Lauricella v. United States84 F. Supp. 361 (S.D.N.Y. 1948)

Most recent

Nash on Behalf of Takeshi Hashimoto v. MacArthur General of the Army184 F.2d 606 (D.C. Cir. 1950)
Lauricella v. United States84 F. Supp. 361 (S.D.N.Y. 1948)

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