ON MOTION. The judgment obtained by appellee in the trial court was reversed and the cause remanded on November 25, 1940,198 So. 746. A previous judgment in favor of appellee *Page 772 was reversed on November 29, 1937, 180 Miss. 384, 177 So. 47. The present motion is for an order upon the Clerk to send down mandate on an affidavit by appellee in forma pauperis in accordance with the ruling promulgated by this Court on June 12, 1939, in Jackson County v. Meaut, 185 Miss. 235, 189 So. 819.
When the first judgment was reversed and the costs taxed against appellee, the costs were not paid by appellee, who had sued in the trial court upon a pauper's affidavit, and an execution was issued against the successful appellant, who paid the costs on March 16, 1938. On December 28, 1939, soon after the publication of the opinion in the Meaut case, appellee filed a pauper's affidavit in this Court with a motion to send down the mandate, without payment of the costs by appellee as required by Rule 29 of this Court; and the mandate was sent as demanded. Now, as already stated, there is another motion and another pauper's affidavit demanding that the mandate be sent down from the second appeal.
To the present motion counsel for the successful appellant has responded that if for the second time the appellant is required to pay the costs, with no responsibility whatever on appellee in respect thereto, it would have been better, so far as out of pocket expenses are concerned, for appellant, the defendant in the trial court, to have at once paid the amount sued for to wit, $500, however unjust the demand rather than take the expense of litigation which these erroneous trials have imposed upon appellant, and which appellant alone must pay, without any fault on appellant's part; and appellant suggests that if appellee shall, as in the past, continue to procure judgments under erroneous records, as to which she has no responsibility in costs, there will be no discernible end to the costs which will be wrongfully imposed upon appellant, so that if appellant finally wins its case on the true merits, it will have lost it in costs, as a result of the errors brought into the trials by its opponent proceeding in forma pauperis. *Page 773
It must have been considerations such as above mentioned, along with others, which caused this Court to promulgate on November 14, 1904, 83 Miss. XXVII, its Rule 30, reading as follows: "When costs are awarded in this court against the appellee, and there shall have been a return of nulla bona to an execution against him, and the costs shall be paid by appellant, no mandate shall issue upon the application of the appellee until he shall pay into the court, for the use of appellant, the costs paid by him." This is the exact language of Rule 29 of the revised rules of 1916 in force at this date.
The rule was originally promulgated by this Court when its membership was composed of men unsurpassed in legal ability in the judicial history of this State. There existed then, as it had existed for years theretofore, the statute, now Section 663, Code 1930, which allowed any citizen of this State to commence any suit or action, or answer any rule for security for costs in any court, by suing in forma pauperis: and there was also before the members the case, Woods v. Davidson, 57 Miss. 206, in which it was held that a person suing in forma pauperis could not appeal without bond, the Court saying: "Construing the two sections together, it must be held that the latter [the pauper statute] applies only to the court in which the suit is commenced, and authorizes its prosecution to final judgment there."
Plainer language could hardly have been used to the effect that the pauper statute applies only to a court of original jurisdiction, and not to courts of appeal. And when, in 1904, the Court adopted the rule which we are now discussing, there was also before it the case Mobile O.R. Co. v. Watly, 69 Miss. 475, 12 So. 558, construing Section 1442, Code 1880, in substantially the same language as Section 3406, Code 1930, which is the section which lies back of old Rule 30, and its continuation as the present Rule 29.
The cited statute dealing with Supreme Court costs made no exception, the Watly case made none, the quoted *Page 774 rule made none, and the first time an attempt was urged to get down a mandate on a pauper's affidavit was in 1933 in DuBois v. Thomas, referred to by McGowen, J., in his dissenting opinion in the Meaut case, wherein he pointed out that the case was fully briefed and the motion was denied on June 12, 1933, but, unfortunately, as it has turned out to be, without a written opinion. Then came the Meaut case holding to the contrary in 1939.
Since the rendition of the majority opinion in the Meaut case, incidents have come to our notice which in themselves had caused some of us to be shaken in our confidence in the correctness of that opinion as well as in its wisdom and salutariness, and the situations such as mentioned by appellant and above noted is only one among the observed incidents. The majority opinion in the Meaut case departed from the rule and practice, the wise and salutary rule and practice, which had been consistently adhered to for sixty years, and, so far as we can find, from the beginning of the history of the state. It brushed aside the decision of the Court on the same point rendered only six years before; and we have determined, upon a mature reconsideration of the Meaut case, to acknowledge our error in it; to overrule the majority opinion and to adopt the dissenting opinion therein — to return to the previous time-tested and correct rule, announced in Woods v. Davidson, that the statute dealing with suits in forma pauperis applies only to courts of original jurisdiction, and not to courts of appeal.
Motion overruled.