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Petrauskas v. Kipnis

OPINION FILED NOVEMBER 4, 1976.

PETRONELE PETRAUSKAS, PLAINTIFF-APPELLANT,

v.

IRWIN KIPNIS ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE J. SCHALLER, Judge, presiding.

PER CURIAM (FIRST DISTRICT, THIRD DIVISION):

Rehearing denied December 7, 1976.

Pursuant to Supreme Court Rule 364, a rule was entered against plaintiff-appellant to show cause why this appeal should not be dismissed for failure to file a cost bond. Appellant responded in timely fashion. The question before this court is whether the insolvent appellant has shown sufficient cause why this appeal should not be dismissed.

Appeal dismissed.

The pleadings before this court and the common law record below indicate the following. Petronele Petrauskas was seriously injured in an automobile accident in 1960. She brought suit in the circuit court of Cook County pursuant to the Dram Shop Act. A jury returned a verdict in favor of the tavern owners against plaintiff, and a verdict in favor of plaintiff against the driver of the car. Judgments were entered upon the verdicts. Plaintiff's appeal was filed, but dismissed for want of prosecution. Subsequently, Ms. Petrauskas filed a section 72 petition seeking a new trial upon the grounds of newly discovered evidence. This petition was denied by the trial court, and the denial was affirmed by this court. (Petrauskas v. Motejunas (1971), 133 Ill. App.2d 293, 272 N.E.2d 805.) The opinion of the court contains the following passage:

"Examining the affidavits in the instant case in that light, it is clear that an adequate pretrial investigation would have resulted in discovery of the evidence now presented in the affidavits of plaintiff's landlord and of the host of the party she attended the night of the accident. Plaintiff's failure to diligently prepare her case for trial also accounts for the fact that Matas Naujokus, known by plaintiff prior to the trial to be a material witness, was never contacted." (133 Ill. App.2d 293, 296, 272 N.E.2d 805, 808.) (Emphasis added.)

As concerns the section 72 petition, the court found that plaintiff was not diligent.

Ms. Petrauskas then filed the instant lawsuit for legal malpractice against the attorneys who represented her in the original action. A jury found for defendants and against plaintiff. Judgment was entered upon the verdict, and plaintiff's post-trial motion was denied. Plaintiff filed notice of appeal, and this court summarily granted her petition for leave to proceed in forma pauperis.

Defendants-appellees submitted to this court a motion with accompanying affidavit presented pursuant to Supreme Court Rule 364, which alleged that appellant is insolvent and no bond for costs has been filed. Since appellant is admittedly insolvent, with proof of service of the motion and affidavit upon appellant, a rule was entered against appellant to show cause why the appeal should not be dismissed.

• 1 Civil proceedings in forma pauperis in trial courts are expressly authorized by statute (Ill. Rev. Stat. 1973, ch. 33, pars. 5 and 6), but there is no express authority for such proceedings in civil appeals because the statutes refer to "the commencement of any suit." When enacted in 1874, these statutes applied to proceedings on appeal because a writ of error was considered to be the commencement of a new action. (Roberts v. Fahs (1863), 32 Ill. 474; Hickman v. Haines (1848), 10 Ill. 20; Ripley v. Morris (1845), 7 Ill. 381.) This rule was changed, so that today an appeal is considered to be a continuation of the proceedings in the circuit court. (Supreme Court Rule 301.) We do not believe that it was intended to deprive paupers of their privilege of proceeding in forma pauperis in civil appeals.

The Costs Act (Ill. Rev. Stat. 1973, ch. 33) contemplates a three-stage process in such cases, as was described in Roberts v. Brunz (1900), 92 Ill. App. 479. (1) The plaintiff or appellant commences the action by filing the affidavit described in section 6 (Ill. Rev. Stat. 1973, ch. 33, par. 6), and set forth in Supreme Court Rule 298. The complaint or notice of appeal is then accepted for filing without the payment of filing fees. (2) The defendant or appellee may move the court to rule the insolvent plaintiff or appellant to give a security for the costs defendant or appellee would be entitled to receive upon prevailing. (Ill. Rev. Stat. 1973, ch. 33, pars. 4, 8 and 22.) In civil appeals, this motion is set forth in Supreme Court Rule 364, which states:

"In any appeal to a reviewing court in a civil action, upon the filing by the appellee of an affidavit that any appellant is not a resident of this State or is insolvent and that no bond for costs has been filed, with proof of service of a copy of the affidavit, a rule shall be entered against the appellant to show cause why the appeal should not be dismissed."

A rule to show cause is entered against plaintiff or appellant. (3) Plaintiff or appellant then petitions the court for leave to proceed as a poor person, pursuant to section 5 of the Costs Act. (Ill. Rev. Stat. 1973, ch. 33, par. 5.) By setting forth the precise nature of his meritorious claim or appeal, the insolvent petitioner shows cause why the case should not be dismissed for failure to post a security for costs.

It is generally considered that if the pauper has what appears to be a meritorious claim, the court, in its discretion, may waive the posting of a security. (Roberts v. Brunz Chicago & Iowa R.R. Co. v. Lane (1889), 130 Ill. 116.) Should the pauper fail to sufficiently describe the nature of his claim, or not be possessed of a meritorious claim, the court may, in its discretion, dismiss the cause. (Behrman v. Livingston (1898), 83 Ill. App. 51; Supreme Court Rule ...


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