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Sponsors: Rep. Sinclair
Document Path: l:\council\bills\bbm\10448mm05.doc
Introduced in the House on January 11, 2005
Currently residing in the House Committee on Judiciary
Summary: Appeals court must hear appeals directly from probate court
HISTORY OF LEGISLATIVE ACTIONS
Date Body Action Description with journal page number ------------------------------------------------------------------------------- 12/8/2004 House Prefiled 12/8/2004 House Referred to Committee on Judiciary 1/11/2005 House Introduced and read first time HJ-65 1/11/2005 House Referred to Committee on Judiciary HJ-65
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VERSIONS OF THIS BILL
TO AMEND SECTION 62-1-308, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO APPEALS FROM THE PROBATE COURT, SO AS TO PROVIDE THAT THE COURT OF APPEALS MUST HEAR APPEALS DIRECTLY FROM THE PROBATE COURT.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 62-1-308 of the 1976 Code, as last amended by Act 55 of 1999, is further amended to read:
"Section 62-1-308. Except as provided in subsection (g), appeals from the probate court must be to the
circuit court of appeals and are governed by the following rules:
(a) A person interested in a final order, sentence, or decree of a probate court and considering himself injured by it may appeal to the
circuit court of appeals in the same county. The notice of intention to appeal to the circuit court of appeals must be filed in the office of the circuit probate court and in the office of the probate court and a copy served on all parties within ten days after receipt of written notice of the appealed from order, sentence, or decree of the probate court. The grounds of appeal must be filed in the office of the probate court and a copy served on all parties within forty-five days after receipt of written notice of the order, sentence, or decree of the probate court.
(b) Within thirty days after the grounds of appeal has been filed in the office of the probate court, as provided in subsection (a), the probate court shall make a return to the
appellate court of appeals of the testimony, proceedings, and judgment and file it in the appellate court of appeals. Upon final disposition of the appeal, all papers included in the return must be forwarded to the probate court.
(c) When an appeal according to law is taken from
any a sentence or decree of the probate court, all proceedings in pursuance of the order, sentence, or decree appealed from shall must cease until the judgment of the circuit court, court of appeals , or Supreme Court is had. If the appellant, in writing, waives his appeal before the entry of the judgment, proceedings may be had in the probate court as if no appeal had been taken.
(d) When the return has been filed in the
circuit court of appeals as provided in subsection (b), the court shall hear and determine the appeal according to the rules of law. The hearing must be strictly on appeal and no new evidence may not be presented.
(e) The final decision and judgment in cases appealed
, as provided in this code, shall must be certified to the probate court by the circuit court, court of appeals , or Supreme Court, as the case may be, and the same proceedings shall must be had in the probate court as though the decision had been made in the probate court.
(f) A judge of a probate court must not be admitted to have any voice in judging or determining an appeal from his decision or be permitted to act as attorney or counsel.
(g) If the parties not in default consent either in writing or on the record at a hearing in the probate court, a party to a final order, sentence, or decree of a probate court who considers himself injured by it may appeal directly to the Supreme Court, and the procedure for the appeal must be governed by the South Carolina Appellate Court Rules."
SECTION 2. This act takes effect upon approval by the Governor.
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