Nebraska § 25-2301.01 - Application; contents.

§ 25-2301.01. Application; contents.

Any county or state court, except the Nebraska Workers' Compensation Court, may authorize the commencement, prosecution, defense, or appeal therein, of a civil or criminal case in forma pauperis. An application to proceed in forma pauperis shall include an affidavit stating that the affiant is unable to pay the fees and costs or give security required to proceed with the case, the nature of the action, defense, or appeal, and the affiant's belief that he or she is entitled to redress.

The timing of the appellant's execution of the poverty affidavit is not, like an "affiant" personally signing the "affidavit," fundamental to the concept of an "affidavit" set forth in this section. State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).

By obtaining permission to proceed in forma pauperis, a party is not granted the payment of his or her attorney fees. State v. Ortega, 290 Neb. 172, 859 N.W.2d 305 (2015).

In a juvenile’s appeal from a delinquency proceeding, the poverty affidavit of the juvenile’s parent may be filed in support of the juvenile’s request to proceed in forma pauperis, and a parent is a party who may state a belief that the juvenile is entitled to relief. In re Interest of Edward B., 285 Neb. 556, 827 N.W.2d 805 (2013).

The filing of a poverty affidavit, properly confirmed by oath or affirmation, serves as a substitute for the docket fee for an appeal. An in forma pauperis appeal is perfected when the appellant timely files a notice of appeal and an affidavit of poverty. In re Interest of Edward B., 285 Neb. 556, 827 N.W.2d 805 (2013).

Failure to file an application separate from the poverty affidavit under this section does not divest the court of jurisdiction. State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001).

This section does not require that a separate application to proceed in forma pauperis be filed in addition to the poverty affidavit as long as the poverty affidavit itself contains some indication that a defendant is requesting or applying for in forma pauperis status. State v. Campbell, 260 Neb. 1021, 620 N.W.2d 750 (2001).

If a request to proceed in forma pauperis is granted by the district court, an appellate court obtains jurisdiction when the notice of appeal is timely filed, and any failure of the affidavit to state the nature of the action or that the affiant is entitled to redress under this section will not divest the court of jurisdiction. State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86 (2000).

Absent good cause evident in the record, it is a jurisdictional defect for the impoverished appellant to fail to personally sign before a notary the affidavit that substitutes for the payment of fees and costs and the posting of security. State v. Guardiola, 32 Neb. App. 915, 8 N.W.3d 253 (2024).

The defendant established that the poverty affidavit he timely filed was valid because it was personally signed and authenticated by a notary public duly commissioned by the State of Nebraska. Although the notary public's verification failed to include a notarial seal, this omission was satisfactorily cured upon the notary filing an affidavit attesting to being a notary in the State of Nebraska on the date that the affidavit was signed and verified, and attaching a copy of the notary public's notarial certificate confirming her active status in Nebraska on the date the affidavit was signed and verified. State v. Guardiola, 32 Neb. App. 915, 8 N.W.3d 253 (2024).

The absence of language in a poverty affidavit indicating the nature of the action being appealed and that the affiant is entitled to redress will not divest an appellate court of jurisdiction over the appeal where the district court has already granted the application for in forma pauperis status on appeal. State v. Grant, 9 Neb. App. 919, 623 N.W.2d 337 (2001).