Johnson v. Jones

SHEPARD, Justice.

In August of 1978, plaintiffs-appellants Johnson entered into a contract to purchase Allen’s Mobile Homes Accessories, Inc., from defendants-respondents Jones. The Johnsons later filed suit against various defendants including the Joneses, alleging breach of contract and misrepresentation in connection with the sale of the business. The Joneses ultimately prevailed in the lower court, and the Johnsons filed an appeal from that judgment. The Johnsons submitted to the lower court several affidavits regarding their financial status and requested that the filing fee on the notice of appeal and the costs for the clerk’s record and court reporter’s transcript be waived.

The filing fee was waived by the district court and by this Court. However, the district court later issued an order denying the Johnsons’ petition for waiver of costs of the court reporter’s transcript and clerk’s record, finding that the plaintiffs were not indigent for the purpose of prepayment of reporter’s transcript fees or clerk’s transcript fees.

The sole issue on appeal is whether the district court erred in denying the Johnsons’ petition for waiver of costs and fees.

The applicable statutory provision, I.C. Section 31-3220, provides in pertinent part:

“Inability to pay fees — Affidavit.—(1) The district court ... may authorize the commencement or defense of any civil suit, action or proceeding, or an appeal therein, without prepayment of fees, costs or security therefor, by any person who makes affidavit that he is indigent and unable- to pay such costs or give security therefor, whenever the court finds, after informal inquiry, the person to be indigent ....

“(3) The court may, upon the filing of a like affidavit and a finding of indigency, direct that the expense of printing the transcript or record on appeal be paid out of the district court fund of the county in which the civil suit, action or proceeding is filed.”

This provision grants the district court discretion to determine whether costs and fees should be waived after the court has made a finding that the petitioning party is indigent.

In this case, the district court found that the Johnsons were not indigent. There appears to be no meritorious argument that the findings of the trial court were erroneous. Those findings indicate that plaintiffs Johnson had a net after tax monthly income of $1,334, largely from social security, since 39-year-old Curtis Johnson is disabled with arthritis; that the Johnsons donate ten per cent of their income to a church and have pledged $800 to support a college; and that Johnsons make no claim they cannot borrow funds. We agree with the order of the trial court that Johnsons have no shown indigency. As to the trial court’s remarks relating to the Johnsons’ borrowing funds, we note that they have obviously been able to borrow in the past from at least three commercial lenders, including their accrual of a Visa charge account billing of over $900.

Defendants Jones suggest that professional testimony in the trial record demonstrates conclusively that Johnson is a “con artist” and hence was not worthy of belief by the trial court, and that no credence should be given by the court to Curtis Johnson’s statements. The trial transcript is not before this Court, and hence we are not privy to the evidence. But we note that the trial judge, during the course of the 12-day trial, had ample opportunity to assess the credibility of Johnson. In a matter of this type, we assign substantial weight to the trial court’s discretion and to its exercise of that discretion. Rueth v. State, 103 Idaho 74, 644 P.2d 1333 (1982); I.R.C.P. 52(a).

Affirmed.

DONALDSON, C.J., and BAKES and HUNTLEY, JJ., concur.