{
  "id": 8358610,
  "name": "ATLANTIC INSURANCE & REALTY COMPANY v. IDA MAE DAVIDSON",
  "name_abbreviation": "Atlantic Insurance & Realty Co. v. Davidson",
  "decision_date": "1986-08-05",
  "docket_number": "No. 8618DC45",
  "first_page": "251",
  "last_page": "255",
  "citations": [
    {
      "type": "official",
      "cite": "82 N.C. App. 251"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "93 L.Ed. 43",
      "category": "reporters:federal",
      "reporter": "L. Ed.",
      "year": 1948,
      "opinion_index": 0
    },
    {
      "cite": "335 U.S. 331",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6159189
      ],
      "weight": 2,
      "year": 1948,
      "opinion_index": 0,
      "case_paths": [
        "/us/335/0331-01"
      ]
    },
    {
      "cite": "401 U.S. 371",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11712525
      ],
      "weight": 3,
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/us/401/0371-01"
      ]
    },
    {
      "cite": "327 S.E. 2d 880",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 0
    },
    {
      "cite": "313 N.C. 315",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4723010
      ],
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/nc/313/0315-01"
      ]
    },
    {
      "cite": "226 S.E. 2d 882",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
      "pin_cites": [
        {
          "page": "884"
        }
      ],
      "opinion_index": 1
    },
    {
      "cite": "30 N.C. App. 365",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8554152
      ],
      "year": 1976,
      "pin_cites": [
        {
          "page": "368"
        }
      ],
      "opinion_index": 1,
      "case_paths": [
        "/nc-app/30/0365-01"
      ]
    },
    {
      "cite": "304 S.E. 2d 199",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1983,
      "pin_cites": [
        {
          "page": "203"
        }
      ],
      "opinion_index": 1
    },
    {
      "cite": "308 N.C. 759",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4710017
      ],
      "year": 1983,
      "pin_cites": [
        {
          "page": "765"
        }
      ],
      "opinion_index": 1,
      "case_paths": [
        "/nc/308/0759-01"
      ]
    },
    {
      "cite": "322 S.E. 2d 762",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "case_ids": [
        2166877
      ],
      "year": 1984,
      "pin_cites": [
        {
          "page": "765"
        }
      ],
      "opinion_index": 1,
      "case_paths": [
        "/sc/286/0070-01"
      ]
    },
    {
      "cite": "312 N.C. 410",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4758734
      ],
      "year": 1984,
      "pin_cites": [
        {
          "page": "416"
        }
      ],
      "opinion_index": 1,
      "case_paths": [
        "/nc/312/0410-01"
      ]
    },
    {
      "cite": "20 L.Ed. 2d 285",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 1968,
      "opinion_index": 1
    },
    {
      "cite": "88 S.Ct. 1418",
      "category": "reporters:federal",
      "reporter": "S. Ct.",
      "year": 1968,
      "opinion_index": 1
    },
    {
      "cite": "390 U.S. 1028",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6373131,
        6372972,
        6372621,
        6372466,
        6372790
      ],
      "year": 1968,
      "opinion_index": 1,
      "case_paths": [
        "/us/390/1028-05",
        "/us/390/1028-04",
        "/us/390/1028-02",
        "/us/390/1028-01",
        "/us/390/1028-03"
      ]
    },
    {
      "cite": "158 S.E. 2d 37",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1967,
      "pin_cites": [
        {
          "page": "42-43"
        }
      ],
      "opinion_index": 1
    },
    {
      "cite": "272 N.C. 147",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8571698
      ],
      "year": 1967,
      "pin_cites": [
        {
          "page": "153-54"
        }
      ],
      "opinion_index": 1,
      "case_paths": [
        "/nc/272/0147-01"
      ]
    },
    {
      "cite": "93 L.Ed. 43",
      "category": "reporters:federal",
      "reporter": "L. Ed.",
      "year": 1948,
      "opinion_index": 2
    },
    {
      "cite": "335 U.S. 331",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6159189
      ],
      "weight": 2,
      "year": 1948,
      "opinion_index": 2,
      "case_paths": [
        "/us/335/0331-01"
      ]
    },
    {
      "cite": "401 U.S. 371",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11712525
      ],
      "weight": 3,
      "year": 1971,
      "opinion_index": 2,
      "case_paths": [
        "/us/401/0371-01"
      ]
    },
    {
      "cite": "327 S.E. 2d 880",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 2
    },
    {
      "cite": "313 N.C. 315",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4723010
      ],
      "year": 1985,
      "opinion_index": 2,
      "case_paths": [
        "/nc/313/0315-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 480,
    "char_count": 8748,
    "ocr_confidence": 0.811,
    "pagerank": {
      "raw": 6.087085966315723e-08,
      "percentile": 0.378530756040217
    },
    "sha256": "9138b59b7b7afba01617a36a080607ded67ffe829b661e2fd5619ed65cab7754",
    "simhash": "1:8fd296ebb3083043",
    "word_count": 1514
  },
  "last_updated": "2023-07-14T22:29:18.916973+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge WHICHARD concurs in the result.",
      "Judge JOHNSON dissents."
    ],
    "parties": [
      "ATLANTIC INSURANCE & REALTY COMPANY v. IDA MAE DAVIDSON"
    ],
    "opinions": [
      {
        "text": "WEBB, Judge.\nThe question posed by this appeal is whether it was error not to allow the petitioner to appeal as a pauper from the magistrate to the district court. G.S. 1-110 provides for a person to bring an action in the district court as a pauper but does not provide for an appeal from a magistrate as a pauper. G.S. 1-288 provides for an appeal as a pauper from the district and superior courts but does not provide for an appeal from a magistrate to the district court.\nIf a defendant against whom a magistrate has rendered a judgment may appeal as a pauper it is within the discretion of the judge as to whether it shall be allowed. See In re McCarroll, 313 N.C. 315, 327 S.E. 2d 880 (1985). We cannot hold the court abused its discretion by not allowing the petitioner to appeal as a pauper when her affidavit showed she owned a home worth $27,150.00.\nWe do not believe our decision in this case violates the constitutional requirements enunciated in Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed. 2d 113 (1971) upon which the petitioner relies. That case holds it is a violation of due process to deprive a person of the right to file a divorce action if the person cannot pay the court costs. In this case there is evidence that the petitioner had the means to pay for the costs of the appeal. Adkins v. E. I. Dupont de Nemours & Co., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43 (1948) deals with the interpretation of a federal statute in regard to appeals. It is not applicable to this case. The petitioner also relies on cases from other jurisdictions which are not binding upon us.\nAffirmed.\nJudge WHICHARD concurs in the result.\nJudge JOHNSON dissents.",
        "type": "majority",
        "author": "WEBB, Judge."
      },
      {
        "text": "Judge WHICHARD\nconcurring in the result.\nI concur in the result reached. I believe, however, that in the absence of any express statutory authorization for proceeding as a pauper when appealing to district court from an adverse ruling by a magistrate, we must hold that the trial court was not permitted to consider defendant\u2019s petition \u201cto sue as\u201d a pauper.\nN.C. Gen. Stat. 1-110 provides that a court \u201cmay authorize a person to sue as a pauper . . . .\u201d (Emphasis supplied.) This language is clear and unambiguous and therefore must be construed as written. See State v. Wiggins, 272 N.C. 147, 153-54, 158 S.E. 2d 37, 42-43 (1967), cert. denied, 390 U.S. 1028, 88 S.Ct. 1418, 20 L.Ed. 2d 285 (1968). It cannot be construed to permit a trial judge or clerk to authorize an appeal as a pauper to district court from an adverse judgment rendered in magistrate\u2019s court.\nN.C. Gen. Stat. 1-288 provides for appeals as a pauper from superior or district court to the Appellate Division. Like N.C. Gen. Stat. 1-110, N.C. Gen. Stat. 1-288 requires submission of an affidavit of indigency. Unlike N.C. Gen. Stat. 1-110, however, N.C. Gen. Stat. 1-288 also requires that \u201c[t]he affidavit must be accompanied by a written statement from a practicing attorney . . . that he has examined the . . . case, and is of the opinion that the decision of the Court ... is contrary to law.\u201d As with N.C. Gen. Stat. 1-110, N.C. Gen. Stat. 1-288 cannot be construed to permit an appeal in this instance.\nFor whatever reasons, our legislature has failed to enact statutory provisions similar to those in N.C. Gen. Stat. 1-288 for appeals to district court from an adverse ruling rendered in magistrate\u2019s court. Further, N.C. Gen. Stat. 1-288 greatly circumscribes the availability of pauper status for appeals to this Court by requiring a written assertion by an attorney that there has been an error of law. Before reaching the question of whether the court properly exercised its discretion, we would first have to resolve 1) whether persons in defendant\u2019s situation may ever proceed as paupers when appealing to district court from magistrate\u2019s court, and 2) if they can, whether the availability of pauper status for such appeals should be limited in a manner similar to the requirements of N.C. Gen. Stat. 1-288 or otherwise. These are policy questions for the legislature.\nI thus would not reach the question of whether the court abused its discretion by not allowing petitioner to appeal as a pauper. If that question should be reached, in my view it is impossible to ascertain from this record whether the court in fact exercised its discretion or whether it ruled as a matter of law, based on petitioner\u2019s ownership of her home, that she could not appeal. Accordingly, if the court had discretion to allow the appeal, and I do not believe it did, I would remand for findings establishing that it in fact exercised its discretion.\nThe constitutionality of this state of the law was not raised and considered in the trial court, and we thus should not pass upon it here. Powe v. Odell, 312 N.C. 410, 416, 322 S.E. 2d 762, 765 (1984); White v. Pate, 308 N.C. 759, 765, 304 S.E. 2d 199, 203 (1983); Brice v. Moore, 30 N.C. App. 365, 368, 226 S.E. 2d 882, 884 (1976).",
        "type": "concurrence",
        "author": "Judge WHICHARD"
      },
      {
        "text": "Judge JOHNSON\ndissenting.\nI respectfully dissent from the majority opinion for the following reasons. First of all, it is not clear to me from the \u201cOrder\u201d the basis upon which the trial court exercised its discretion and denied petitioner\u2019s appeal as a pauper. Said \u201cOrder\u201d is merely a handwritten statement \u201cdefendant owns a home worth $27,150.00 or more and has personal property that is unencumbered.\u201d There are no findings with respect to petitioner\u2019s sworn affidavit whereby she states that she is 65 years of age and unable to work due to high blood pressure and a heart condition; that her sole source of income is a $220.00 per month social security check and a monthly $120.00 SSI check; that her monthly expenses total $362.00 per month; that her money runs out about the 20th of each month whereupon she subsists on leftover crackers, bread and beans until her next month\u2019s check arrives. I do not believe the absence of findings regarding petitioner\u2019s ability to finance her appeal complies with In re McCarroll, 313 N.C. 315, 327 S.E. 2d 880 (1985). Secondly, the majority opinion makes much of the fact that G.S. 1-110 and G.S. 1-288 do not specifically provide for an appeal in forma pauperis from a magistrate to the district court. I think it would be anomalous for the General Assembly to provide for a person to bring an action in the district court, G.S. 1-110, and provide for a pauper to appeal from district court to superior court, G.S. 1-288, but not allow for a pauper to appeal from an adverse judgment rendered in magistrate\u2019s court. Moreover, I believe G.S. 6-24 expresses the General Assembly\u2019s intent to allow for such an appeal by a pauper.\nLastly, I remain unconvinced that Boddie v. Connecticut, 401 U.S. 371, 28 L.Ed. 2d 113, 91 S.Ct. 780 (1971), allows for such a troublesome result as in the case sub judice. Moreover, while Adkins v. E. I. Dupont de Nemours & Co., 335 U.S. 331, 93 L.Ed. 43, 69 S.Ct. 85 (1948), did interpret a Federal Statute, I agree with the sentiments expressed by the Court and would not require a person to be completely destitute to appeal in forma pauperis from magistrate\u2019s court to district court.",
        "type": "dissent",
        "author": "Judge JOHNSON"
      }
    ],
    "attorneys": [
      "The petitioner appealed.",
      "No brief filed by plaintiff appellee.",
      "Central Carolina Legal Services, Inc., by Stanley B. Sprague, for petitioner appellant."
    ],
    "corrections": "",
    "head_matter": "ATLANTIC INSURANCE & REALTY COMPANY v. IDA MAE DAVIDSON\nNo. 8618DC45\n(Filed 5 August 1986)\nAppeal and Error \u00a7 19\u2014 appeal as pauper denied \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in refusing to allow petitioner to appeal as a pauper from the magistrate to the district court when her affidavit showed she owned a home worth $27,150.\nJudge Whichard concurring in the result.\nJudge Johnson dissenting.\nAppeal by petitioner from Bencini, Judge. Order entered 11 October 1985 in District Court, Guilford County. Heard in the Court of Appeals 3 June 1986.\nThe petitioner appeals from an order of the District Court of Guilford County which denied her the right to appeal from a magistrate to the district court in forma pauperis. On 1 October 1985 a magistrate entered a judgment in favor of the plaintiff against the defendant petitioner for $47.00 plus court costs. She filed a petition to sue as a pauper in the district court. The affidavit in support of this petition showed that she owned a house and lot with a tax value of $27,150.00. The assistant clerk of the superior court filed an order in which she concluded, \u201c[i]n view of the Affidavit and Certification appearing above, it is ordered that the individual petitioner in the above entitled action is not authorized to bring suit in this action [a]s a pauper.\u201d Judge Bencini in an order made the same conclusion and recited \u201c[petitioner] owns a home worth $27,150.00 or more and has personal property that is unencumbered.\u201d\nThe petitioner appealed.\nNo brief filed by plaintiff appellee.\nCentral Carolina Legal Services, Inc., by Stanley B. Sprague, for petitioner appellant."
  },
  "file_name": "0251-01",
  "first_page_order": 279,
  "last_page_order": 283
}