2011-2012 Bill 58: Probate Court Appeals - South Carolina Legislature Online

1 South Carolina General Assembly 2 119th Session, 2011-2012 3 4 S. 58 5 6 STATUS INFORMATION 7 8 General Bill 9 Sponsors: Senators L. Martin, Rose and Campsen 10 Document Path: l:\s-res\lam\001prob.mrh.lam.docx 11 12 Introduced in the Senate on January 11, 2011 13 Currently residing in the Senate Committee on Judiciary 14 15 Summary: Probate court appeals 16 17 18 HISTORY OF LEGISLATIVE ACTIONS 19 20 Date Body Action Description with journal page number 21 12/1/2010 Senate Prefiled 22 12/1/2010 Senate Referred to Committee on Judiciary 23 1/11/2011 Senate Introduced and read first time ( Senate Journalpage 31) 24 1/11/2011 Senate Referred to Committee on Judiciary ( Senate Journalpage 31) 25 1/9/2012 Senate Referred to Subcommittee: Malloy (ch), Ford, Massey, S.Martin 26 27 28 VERSIONS OF THIS BILL 29 30 12/1/2010 31 1 2 3 4 5 6 7 8 9 A BILL 10 11 TO AMEND SECTION 621308 OF THE 1976 CODE, 12 RELATING TO APPEALS FROM THE PROBATE COURT, TO 13 PROVIDE THAT THE COURT OF APPEALS WILL 14 DIRECTLY HEAR APPEALS FROM THE PROBATE COURT. 15 16 Be it enacted by the General Assembly of the State of South 17 Carolina: 18 19 SECTION 1. Section 621308 of the 1976 Code is amended to 20 read: 21 22 “Except as provided in subsection (g), appeals Appeals from the 23 probate court must be to the circuit court of appeals and are 24 governed by the following rules: 25 (a) A person interested in a final order, sentence, or decree of a 26 probate court and considering himself injured by it may appeal to 27 the circuit court of appeals in the same county. The notice of 28 intention to appeal to the circuit court of appeals must be filed in 29 the office of the circuit probate court and in the office of the 30 probate court and a copy served on all parties within ten days after 31 receipt of written notice of the appealed from order, sentence, or 32 decree of the probate court. The grounds of appeal must be filed in 33 the office of the probate court and a copy served on all parties 34 within fortyfive days after receipt of written notice of the order, 35 sentence, or decree of the probate court. 36 (b) Within thirty days after the grounds of appeal has have 37 been filed in the office of the probate court, as provided in 38 subsection (a), the probate court shall make a return to the 39 appellate court of appeals of the testimony, proceedings, and 40 judgment and file it in the appellate court of appeals. Upon final 41 disposition of the appeal, all papers included in the return must be 42 forwarded to the probate court.

[58] 2 1 (c) When an appeal according to law is taken from any a 2 sentence or decree of the probate court, all proceedings in 3 pursuance of the order, sentence, or decree appealed from shall 4 must cease until the judgment of the circuit court, court of appeals, 5 or Supreme Court is had. If the appellant, in writing, waives his 6 appeal before the entry of the judgment, proceedings may be had 7 in the probate court as if no appeal had been taken. 8 (d) When the return has been filed in the circuit court of 9 appeals as provided in subsection (b), the court shall hear and 10 determine the appeal according to the rules of law. The hearing 11 must be strictly on appeal and no new evidence may not be 12 presented. 13 (e) The final decision and judgment in cases appealed, as 14 provided in this code, shall must be certified to the probate court 15 by the circuit court, court of appeals, or Supreme Court, as the case 16 may be, and the same proceedings shall must be had in the probate 17 court as though the decision had been made in the probate court. 18 (f) A judge of a probate court must not be admitted to have 19 any voice in judging or determining an appeal from his decision or 20 be permitted to act as attorney or counsel. 21 (g) If the parties not in default consent either in writing or on 22 the record at a hearing in the probate court, a party to a final order, 23 sentence, or decree of a probate court who considers himself 24 injured by it may appeal directly to the Supreme Court, and the 25 procedure for the appeal must be governed by the South Carolina 26 Appellate Court Rules.” 27 28 SECTION 2. This act takes effect upon approval by the 29 Governor. 30 XX 31

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