Ex parte Apeler

Citations

• 35 S.C. 417
• 14 S.E. 931
• 1892 S.C. LEXIS 190

Syllabus

<p>1. Appeals prom Probate Court — Trial.—Under the practice regulating appeals from the Court of Probate to the Court of Common Pleas, as prescribed by statute and construed by decisions of this court, all issues arising on such appeals must be tried by the court, except that issues may be referred to a jury in the mode prescribed by rulo 28 of the Circuit Court. Therefore on an appeal from a decree of the Court of Probate, declaring that a paper offered for probate in solemn form was no will, it was error for the Circuit Court to frame issues and submit them to a jury without notice to appellant, and a judgment based upon a verdict on those issues must be set aside.</p> <p>2. Orders — -Notice—Telephone.—-Orders in the Court of Common Pleas may be granted only after four days’ notice in writing to the opposing counsel. Notice by telephone is a verbal notice.</p> <p>3. Notices — Counsel—Trial.—Counsel for appellant received notice in writing from the respective counsel of two of the respondents, that on February 9, at 5 p. m., testimony of a witness would be taken de bene esse before a notary public in the city of Charleston, pursuant to an order of the Circuit Judge, a copy of which was served. On the morn-of the 9th, the counsel for one of these respondents notified appellant’s attorney in Charleston that such testimony would not be taken, and that the order authorizing it had not been signed by the judge. Held, that the trial was improperly had during the forenoon of the 9th in Berkeley, an adjoining county, for the reason that the notice withdrawing the prior notice was too short, and was not conjointly given by the counsel for the other respondents.</p>