Wigginton v. Wigginton

Orth, J., delivered the opinion of the Court. I There are three laws, codified as Code, Art. 24, §§ 10, 11 and 12, in this State which deal with the payment of ³³¹ costs in court actions at law and in equity. This appeal from an order of 25 April 1972 of the Circuit Court for Prince George’s County requires interpretation of §§ 10 and ll. 1 As reenacted by Acts 1966, Ch. 591, § 10 of Art. 24 applies to the circuit courts of all of the counties of this State and to the civil common-law and equity courts of Baltimore City. 2 It provides in subsection (a) that the clerks of such courts “shall not docket any suit or issue process in any original suit, matter, proceeding or action at law until the plaintiff, or someone in his behalf, shall first deposit with the clerk of the court in which such suit, matter or proceeding shall be brought, toward the payment of the costs of the clerk and sheriff for which the plaintiff is liable” certain specified sums. It seems that it is concerned with the initiation of an action and the Court of Appeals has found that the legislative intent was probably twofold — “the discouraging of frivolous litigation and assuring payment of at least a part of the costs should the plaintiff be the losing party.” Glanville v. David Hairstylist, 249 Md. 162, 166 .

The costs so ³³² assured are sums specified in § 10 (a) for the clerk for docketing the suit, matter or proceeding — “the sum of $10 for any law case and $15 for any equity case,” and the costs of the sheriff for issuing process in any original suit, matter, proceeding or action at law for which the plaintiff is liable, see Code, Art. 36, §§ 25, 25A, 25B, 26, 26A, 26B. Section 11 of Art. 24, as amended by Acts 1968, ch. 184, also deals with the prepayment of costs for docketing a case at law or in equity, but is limited in its application to specified counties. “No case at law or in equity shall be docketed in the circuit court of Anne Arundel, Harford, Montgomery, Charles, St. Mary’s, Somerset, Worcester and Prince George’s counties * * * until the clerk of the circuit court shall have been paid the costs therefor; * * 3 In this respect, as to the counties specified, it covers the same ground as does § 10 without specifying the sum to be deposited. Section 11 does not include certain costs of the sheriff but does include other matters which § 10 does not. Section 11 further provides: “nor shall any attachment, writ of fieri facias or execution on judgment be issued until the costs therefor shall have been paid to the said clerk.” Each of § 10 and § 11 provides an exception.

Section 10 (b) reads: “Exception when petitioner not able to make deposit. — Such deposits need not be made by any person, who by petition under oath filed in such suit, matter or proceeding or action at law, shall satisfy the judge thereof that the petitioner is not able to make such deposit, and whose coun ³³³ sel shall certify that the petitioner’s said suit, matter, proceeding or action at law is meritorious, in which event the court shall pass an order allowing process to be issued and action taken without such deposit.” 4 Section 11 has this proviso: “* * * provided, however, that the provisions of this section shall not apply to any indigent plaintiff, or to any person unable to pay the costs of docketing any said case or the issuance of any attachment, writ of fieri facias or execution on judgment as provided herein.” 5 In § 10 the legislature has made clear the procedure with respect to the required deposit. Process may be issued and “action taken” without prepayment of costs only by order of the court. The court shall pass such order, (1) upon the filing of a petition sufficient to satisfy the court that the petitioner is unable to make the required deposit, and (2) upon certification of the petitioner’s counsel that the suit is meritorious. 6 Thus the test is whether the person desiring to have the case docketed and process issued is unable to make the required deposit. When the petition and certification have been properly submitted, the deposit may be excused upon the court being satisfied that the petitioner is unable to make it.

This determination is a matter of judicial discretion. ³³⁴ Section 11 asserts baldly that its provisions “shall not apply to any indigent plaintiff, or to any person unable to pay” the prescribed costs. 7 It spells out no procedure for the determination of indigency or inability to pay. We believe that the legislature intended that the determination of whether a person was indigent or unable to pay the costs was within the sound discretion of the court. However, with respect to the docketing of a case, which is covered by § 10 as to all counties and Baltimore City and also by § 11 with respect to certain counties, we think that the clerk’s costs for docketing cases at law and in equity in the circuit courts for the counties and in the civil common-law courts and equity courts of Baltimore City and the procedure under which exception is to be made to the prepayment requirement, are to be in accordance with the clear and specific provisions of § 10. We note that the title to ch. 591, Acts 1966, states that § 10 was repealed and reenacted with amendments “to provide that court costs be uniform throughout the State.” 8 Therefore, a person seeking to have a case docketed at law or in equity without prepayment of costs must file a petition under oath sufficient to satisfy the judge that the petitioner is unable to make the required deposit and the petitioner’s counsel must certify that the suit is meritorious.

II Nellie Wigginton presented to the Circuit Court for Prince George’s County for docketing a bill of complaint ³³⁵ for a divorce a vinculo matrimonii against her husband, Frank Clark Wigginton, address unknown. She submitted a “Petition to Waive Payment of Fees and Costs,” alleging that she was without sufficient funds to pay “the filing fees, sheriff fees, cost of publication and other costs which may be involved in this litigation,” that she was a recipient of Medical Assistance and that she had been assigned counsel under the Maryland Legal Services Program (Judicare). She asserted that other than her personal clothing and effects she had no assets, and unless granted leave to file the action without payment of fees and costs, “she will be unable to present what she feels is meritorious litigation to the Court.” She attached a financial statement under oath showing income of $200 from Federal Aid to Dependent Children and an amount of $108 in United States Department of Agriculture Food Stamps. Whether this is weekly or monthly income is not indicated.

The expenses, again with no indication of whether weekly or monthly, are listed as rent — $180; food — $100; light, gas, telephone $28. We view the income and expenses as being on a monthly basis. The liabilities are shown as $700 owed to Hecht Co. It appears from the record before us that the final action taken by the Master for Domestic Relations Causes, Circuit Court for Prince George’s County, was set forth in a Memorandum dated 11 April 1972 by him to Mrs. Wigginton’s counsel: “The Petition for Waiving Pre-Payment of Court Costs has come to the Master for review and recommendation, and I am returning the file herewith as it is not clear why the plaintiff is not employed. She states that she is an indigent and it occurs to me that if she had a job she might not be an indigent.

It is common knowledge that a great segment of the population would perhaps be indigent if they did not work.” Counsel excepted. Praying that his exceptions be sustained, he claimed: ³³⁶ “The finding of indigency has already been made by the fact that the Plaintiff is receiving assistance from Federal Aid to Dependent Children and food stamps from the United States Department of Agriculture. The Plaintiff also has been granted a Medical Assistance Card by the Government which is No. 16035337340, and has been assigned Counsel under the Maryland Legal Services Program (Judicare).” He asserted: “To deny the Plaintiff the right to have her case filed with prepayment of costs waived defeats the whole purpose of the Judicare Program, and would appear to be in violation of the Supreme Court’s Mandate in Boddie v. Connecticut, 91 S. Ct. 780 .” On 25 April 1972, the Circuit Court for Prince George’s County passed an order as follows: “Upon consideration of the Report of the Master, dated the 11th day of April, 1972, and the Exceptions filed thereto, it is, by the Circuit Court for Prince George’s County, Maryland, Sitting in Equity, this 25th day of April 1972, ORDERED,