Montgomery v. Keziah

• Decision Date: 22 September 1981
• Docket Number: No. 21569,21569
• Citation: 277 S.C. 84,282 S.E.2d 853
• Court: South Carolina Supreme Court
• Parties: Opal C. MONTGOMERY, as Executrix of the Last Will and Testament of Mary Lewis Keziah, and James C. Wagers, Appellants, v. John W. KEZIAH, Respondent.

Page 853

282 S.E.2d 853

277 S.C. 84

Opal C. MONTGOMERY, as Executrix of the Last Will and

Testament of Mary Lewis Keziah, and James C.

Wagers, Appellants, v. John W. KEZIAH, Respondent.

No. 21569.

Supreme Court of South Carolina.

Sept. 22, 1981.

Claude S. Coleman of Hemphill, Hemphill & Coleman, Chester, for appellants.

William C. Keels of Strickland, Short & Keels, Chester, for respondent.

PER CURIAM:

This appeal arises out of a contest over the probate of the will of Mary Lewis Keziah, deceased. The Probate Court of Chester County ruled the will was void and appellants served notice of appeal therefrom to the circuit court, but did not file or serve any grounds of appeal as required by Section 18-5-20, Code of Laws of South Carolina (1976). Thereafter, the circuit court dismissed the action for failure to file the grounds of appeal. This appeal followed. We affirm.

Appellants contend that with respect to the filing of grounds of appeal, Section 18-5-20 is merely directory and that compliance with its provisions serves no useful purpose since the issue of "will or no will" may be resolved through a trial de novo in circuit court.

Section 18-5-20 provides:

Any person interested in any final order, sentence or decree of any probate court and considering himself injured thereby 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 such person shall have received notice of the decision appealed from.

We believe the filing and service of the grounds of appeal in accordance with Section 18-5-20 are integral parts of the right of appeal from probate court to circuit court. First, the statute uses the mandatory language, "shall be filed in the office of the probate court and a copy thereof served on the adverse party." (Emphasis added).

Moreover, compliance with the provision is necessary for the orderly function of the appellate process. Section 18-5-30, Code of Laws of South Carolina (1976), provides:

Within thirty days after the grounds of appeal shall have been filed in the office of the probate court, as provided in § 18-5-20, the probate court shall make a return to the appellate court of the testimony, proceedings and judgment and file it in the appellate court. Upon the appeal being finally disposed of all such papers included in the return...