Fultz v. McKnight

• Decision Date: 13 June 1923
• Docket Number: 11255.
• Citation: 118 S.E. 37,125 S.C. 115
• Parties: FULTZ ET AL. v. MCKNIGHT ET AL.
• Court: South Carolina Supreme Court

118 S.E. 37

125 S.C. 115

FULTZ ET AL. v. MCKNIGHT ET AL.

No. 11255.

Supreme Court of South Carolina

June 13, 1923

Appeal from Common Pleas Circuit Court of Berkeley County; R. W Memminger, Judge.

Proceeding by Lewis G. Fultz, executor of the last will and testament of Elias Cumbee, deceased, and Emily H. Cumbee, sole devisee and legatee under this will and testament, against Sarah McKnight and others. From an order of the circuit judge refusing to dismiss respondents' appeal from a decree of the probate court, appellants appeal. Order reversed, and cause remanded.

Octavus Cohen, of Charleston, for appellants.

E. J Dennis, of Moncks Corner, for respondents.

MARION J.

On February 6, 1922, respondents here served notice of intention to appeal to the circuit court from a decree of the probate court of Berkeley county admitting a will to probate in due form of law. No "certified copy of the record of the proceedings appealed from and of the grounds of the appeal filed in the probate court," together with "proper evidence" of notice of appeal "given the adverse party according to law," was filed in the circuit court, as required by section 64, Code Civ. Proc 1912, prior to the "stated session next after such appeal" (section 63, Code Civ. Proc. 1912), which appears to have been the session fixed by law to be held in June, 1922. At the next session of the circuit court, a term of the court of common pleas, held in September, the proponent of the will, the appellant here, moved pursuant to notice served August 24, 1922, to dismiss the appeal from the probate court and for an order affirming the proceedings appealed from under section 64, Code, Civ. Proc. 1912. The attorney for the contestants, respondents here, stating that he was not then prepared to argue the motion, the court made the following entry on the docket:

"Motion heard and to be argued at coming criminal court."

When the motion was thus marked "Heard" the return required by section 64 had not been filed in the circuit court. When the motion came on for argument at the ensuing "criminal court" (presumably the court of general sessions) on November 8, 1922, it appearing that the certified copy of the record of the proceedings of the probate court, etc., had been filed in the circuit court on November 6, 1922, the presiding judge held that the parties appealing from the probate court were entitled to have their appeal considered, and refused to dismiss the appeal and affirm the proceedings appealed from. From the order of the circuit judge so holding, this appeal is taken.

The pertinent statutory provisions (Code Civ. Proc. 1912) are as follows:

Section 63: "Any person interested in any final order, sentence, or decree of any probate court, * * * may appeal therefrom to the circuit court in the same county, at the stated session next after such appeal. The grounds of appeal shall be filed in the office of the probate court, and a copy thereof served on the adverse party, within fifteen days after notice of the decision appealed from."

Section 64: "The person appealing shall procure and file in the circuit court to which such appeal is taken a certified copy of the record of the proceedings appealed from, and of the grounds of the appeal filed in the probate court, together with the proper evidence that notice has been given the adverse party according to law."

Section 67: "If the person appealing from the proceedings of the probate court, as provided in this title, shall neglect to enter his appeal, the circuit court to which such appeal shall be taken, on motion, and producing attested copies of such appeal by the adverse party, shall affirm the proceedings appealed from," etc.

In Ex parte Apeler, 35 S.C. at page 420, 14 S.E. at page 932, Mr. Justice McIver, in discussing the sections of the Code here involved, said:

"The next section [now section 64] provides that the appellant shall file in the circuit court a certified copy of the record of the proceedings in the probate court, including the notice and grounds of appeal; but prescribes no limit as to the time within which such certified copy shall be filed in the circuit court, though, we presume, construing these two sections [now sections 63 and 64] together, it must be done before 'the stated session' of the circuit court 'next after such appeal.' "

In Watson v. Pollitzer, 72 S.C. 387, 51 S.E. 914, where notice of an appeal from the probate court was given and such notice and the grounds of appeal filed in the circuit court...