Anderson v. Worthington

78 S.E.2d 333 (1953)

238 N.C. 577

ANDERSON v. WORTHINGTON.

No. 316.

Supreme Court of North Carolina.

November 11, 1953.

Dan H. Jones, Farmville, for plaintiff appellant.

James & Speight, W. W. Speight, and Sam O. Worthington, Greenville, for defendant, appellee.

ERVIN, Justice.

Appeals in forma pauperis in civil actions tried and determined in the superior court are governed by G.S. § 1-288. Under this statute, the party aggrieved by the judgment of the superior court may apply to either the trial judge or the clerk of the superior court for leave to appeal to the Supreme Court in forma pauperis. In either case, the essential requirements of the statute must be observed, for they are mandatory and jurisdictional in character. Williams v. Tillman, 229 N.C. 434, 50 S.E.2d 33; McIntire v. McIntire, 203 N.C. 631, 166 S.E. 732.

The plaintiff elected to apply to the clerk of the superior court for leave to appeal in forma pauperis. It was essential under the statute for her to present to the clerk "during the term at which the judgment was *334 rendered or within ten days from the expiration by law of the term" an affidavit of poverty made by herself and a written statement made by a practicing attorney complying substantially with the requirements of the statute as to form and content. Clark v. Clark, 225 N.C. 687, 36 S.E.2d 261; Franklin v. Gentry, 222 N.C. 41, 21 S.E.2d 828; Stell v. Barham, 85 N.C. 88. It was likewise essential under the statute for the clerk to pass upon and grant the plaintiff's application for leave to appeal in forma pauperis "within ten days from the expiration by law" of the term at which the judgment was rendered. Cole v. Gaither, 205 N.C. 473, 171 S.E. 611; Powell v. Moore, 204 N.C. 654, 169 S.E. 281.

Since the essential requirements of the statute in respect to the time for seeking and granting leave to appeal in forma pauperis were not observed by the plaintiff and the clerk, we are without jurisdiction to entertain the appeal. Franklin v. Gentry, supra; Powell v. Moore, supra.

Appeal dismissed.