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SMITH v. FIRESTONE TIRE & RUBBER CO.

July 7, 1966

William SMITH t/a W. Smith Tire Company
v.
FIRESTONE TIRE AND RUBBER COMPANY



The opinion of the court was delivered by: LORD, JR.

 JOHN W. LORD, Jr., District Judge.

 Plaintiff, William Smith, t/a W. Smith Tire Company, now asks this Court for the following special relief:

 (a) to authorize plaintiff to file Notice of Appeal to the Court of Appeals for the Third Circuit herein without prepayment of fees or costs or security therefor; and to

 (b) direct that the expense of printing the record on appeal be paid by the United States.

 In support of his motion, plaintiff states that he is unable to pay such costs or give security therefor and is unable to pay the expense of printing the record on appeal. In a supporting affidavit he explains that the intended appeal is from this Court's denial, on June 13, 1966, of plaintiff's motion for new trial on the issue of damages only, following judgment entered April 1, 1966. Recited also are facts as to plaintiff's financial difficulties as brought out on examination before this Court on May 5, 1966.

 The occasion of the last-mentioned testimony was plaintiff's motion for leave not to order transcript for the purposes of argument on his motion for new trial. Setting forth his financial circumstances, difficulties, and debts - he asked to be relieved of the requirement of Rule 31 of the Local Rules of Civil Procedure of the United States District Court for the Eastern District of Pennsylvania, which requires a party who files a post-trial motion to order a transcript of the trial notes of testimony within ten days or suffer dismissal of such motion.

 This Court concluded, in the exercise of its discretion, that for the particular purpose then at hand the plaintiff had shown good cause for relief from the local rule in question. One especial reason was that the evidence adduced at the trial was fresh in the trial judge's mind; other reasons which induced that result were set forth in the memorandum filed by the Court. By the said memorandum and order of May 18, 1966, accordingly, the plaintiff's motion for leave not to order transcript was granted. Pursuant to notice which had been stated in the same order, the Court thereafter heard argument on plaintiff's Motion for New Trial and Defendant's Motion for Judgment N.O.V. on June 8, 1966. On June 13, 1966, plaintiff's Motion for New Trial was denied, as also was defendant's Motion for Judgment Notwithstanding the Verdict.

 The only statutes which have been cited as authority for allowance of proceedings in forma pauperis are certain parts of sections 753 and 1915 of Title 28 U.S.C.A. As will appear, however, Rule 75(m), Fed.R.Civ.P. is necessarily involved.

 Title 28 U.S.C.A. § 753(f) as amended in 1965 says in pertinent part:

 
"* * * Fees for transcripts furnished in other [i.e. other than § 2255 for post-conviction attack on criminal sentences] proceedings to persons permitted to appeal in forma pauperis shall also be paid by the United States if the trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question) * * *."

 In pertinent part, Section 1915 of 28 U.S.C.A. as amended in 1951 provides:

 
"§ 1915(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. * * *
 
"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it ...

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