(Laws 1805, Cobb's 1851 Digest, p. 283; Laws 1823, Cobb's 1851 Digest, p. 497; Ga. L. 1851-52, p. 49, § 1; Ga. L. 1851-52, p. 91, § 19; Ga. L. 1859, p. 33, § 5; Code 1863, § 3530; Ga. L. 1866, p. 24, § 1; Code 1868, § 3553; Code 1873, § 3611; Code 1882, § 3611; Civil Code 1895, § 4454; Civil Code 1910, § 4999; Code 1933, § 6-201; Ga. L. 1972, p. 738, § 6; Ga. L. 1986, p. 982, § 1.)
Cross references.- Exercise of judicial power, Ga. Const. 1983, Art. VI, Sec. I, Para. VI.
Editor's notes.- Ga. L. 1986, p. 982, § 25, not codified by the General Assembly, provided that that Act would apply to all cases filed on or after July 1, 1986.
Law reviews.- For annual survey on trial practice and procedure, see 38 Mercer L. Rev. 383 (1986).
JUDICIAL DECISIONSANALYSIS
General Consideration
Applicability.
- This section is general, and applies to all cases. Goodwyn v. Veal, 50 Ga. App. 657, 179 S.E. 126 (1935).
O.C.G.A. § 5-3-2 applies only to final judgments rendered by the probate court. Sears v. State, 196 Ga. App. 207, 396 S.E.2d 1 (1990).
Appeal granted under statute extends to any interested party.
- Any interested party, dissatisfied with judgment of court of ordinary (now probate court) may appeal, except in cases involving removal of a guardian. Hobbs v. Cody, 45 Ga. 478 (1872).
Creditor served by citation becomes party to proceeding, and may appeal under section if the creditor is dissatisfied with appointment of the administrator by ordinary (now judge of probate court), whether the creditor objects in court or not. Mitchell v. Pyron, 17 Ga. 416 (1855).
General statutory meaning of appeal from inferior court to superior court is that, after having been tried in inferior court, jurisdiction of entire case is transferred to superior court for another complete trial. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).
Sections dealing with appeals to superior court from inferior courts are in pari materia.
- In case of appeal from ordinary's court (now probate court) to superior court, the various Code sections relating to appeals to superior court from justice's courts, county courts, and courts of ordinary are in pari materia, and should be construed as providing for a single system of appellate procedure. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).
Effect on probate court's original jurisdiction over probate of wills.
- Former Code 1933, § 6-201 (see O.C.G.A. § 5-3-2) was not intended to invade original jurisdiction of courts of ordinary (now probate courts) granted by Ga. Const. 1976, Art. VI, Sec. VI, Para. I (see Ga. Const. 1983, Art. VI, Sec. I, Para. I) and former Code 1933, § 113-603 over probate of wills. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).
Appeal to superior court with waiver of judgment of probate court.
- When appraisers filed their return for year's support, objections thereto were filed and matter was appealed by consent to superior court, and judgment of court of ordinary (now judge of probate court) was thereby expressly waived; such express waiver had same legal effect as formal decision or judgment of court of ordinary (now probate court) as to matter at issue, and status of widow as to vesting of her title was same as if decision or judgment had been formally rendered. Tilley v. King, 193 Ga. 602, 19 S.E.2d 281 (1942), later appeal, 69 Ga. App. 561, 26 S.E.2d 293 (1943).
In no case, except by consent of parties, can an appeal be entered from court of ordinary (now judge of probate court) to superior court until after judgment has been rendered in case by court of ordinary. Bates v. Weaver, 145 Ga. 241, 88 S.E. 986 (1916) (decided under former Code 1910, § 5011).
Forwarding of lower court original pleadings.
- It is duty of ordinary (now judge of probate court) to send to clerk of superior court the original pleadings. Robinson v. McAlpin, 130 Ga. 489, 61 S.E. 115 (1908) (decided under former Code 1895, § 4467).
Failure to send up certificate that appellant has paid costs not ground for dismissal of appeal. Morgan v. Campbell, 133 Ga. 549, 66 S.E. 369 (1909) (decided under former Code 1895, § 4467).
This section does not require that ordinary (now judge of probate court) send up with appeal papers a certificate or other evidence showing that appellant has paid costs which accrued in trial of case. Morgan v. Campbell, 133 Ga. 549, 66 S.E. 369 (1909) (decided under former Code 1895, § 4466).
Inability to extend time for appeal.
- Pretermitting when the final order occurred, the superior court correctly held that the probate court had no authority to extend the time to appeal beyond the statutorily-prescribed period of 30 days. Accordingly, the probate court's order extending the period beyond that provided for in the statute was of no legal consequence, and the superior court did not err in granting summary judgment. Duncan v. Moreland, 325 Ga. App. 364, 751 S.E.2d 139 (2013).
Parties participating fully in probate court participating in appeal to superior court.
- Superior court erred in dismissing an appeal from a probate proceeding under O.C.G.A. § 5-3-2(a) based on the court's finding that appellants, a decedent's mother and cousin, were not parties to the probate proceeding because appellants were treated by the probate court as parties and participated fully in the proceeding. In re Estate of Rogers, 323 Ga. App. 869, 748 S.E.2d 505 (2013).
Cited in Baber v. Woods, 39 Ga. 643 (1869); Redd v. Dure, 40 Ga. 389 (1869); Fite v. Black, 85 Ga. 413, 11 S.E. 782 (1890); Brodhead v. Shoemaker, 44 Ga. 518, 11 L.R.A. 567 (N.D. Ga. 1890); Ford v. Redfearn, 145 Ga. 498, 89 S.E. 611 (1916); Head v. Waldrup, 193 Ga. 165, 17 S.E.2d 585 (1941); Forrester v. Pullman Co., 66 Ga. App. 745, 19 S.E.2d 330 (1942); Bethea County v. Dixon, 72 Ga. App. 384, 33 S.E.2d 723 (1945); Whitehurst v. Singletary, 77 Ga. App. 811, 50 S.E.2d 80 (1948); Jones v. Cannady, 78 Ga. App. 453, 51 S.E.2d 551 (1949); Gray v. Gunby, 206 Ga. 63, 55 S.E.2d 588 (1949); Harnesberger v. Davis, 86 Ga. App. 41, 70 S.E.2d 615 (1952); May v. Hadden, 211 Ga. 84, 84 S.E.2d 65 (1954); Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957); Brumbelow v. Brumbelow, 111 Ga. App. 665, 142 S.E.2d 855 (1965); Burson v. Bishop, 117 Ga. App. 602, 161 S.E.2d 518 (1968); State Bd. of Equalization v. Pineland Tel. Coop., 135 Ga. App. 796, 219 S.E.2d 1 (1975); Mathews v. Mathews, 136 Ga. App. 833, 222 S.E.2d 609 (1975); Montgomery v. DeKalb Steel, Inc., 144 Ga. App. 191, 240 S.E.2d 741 (1977); Hunter v. Hunter, 149 Ga. App. 324, 254 S.E.2d 477 (1979); Brown v. Frachiseur, 247 Ga. 463, 277 S.E.2d 16 (1981); Kariuki v. DeKalb County, 253 Ga. 713, 324 S.E.2d 450 (1985); Copeland v. White, 178 Ga. App. 644, 344 S.E.2d 436 (1986); Hunt v. Henderson, 178 Ga. App. 688, 344 S.E.2d 470 (1986); Smith v. Watts, 181 Ga. App. 524, 352 S.E.2d 840 (1987); Hamrick v. Bonner, 182 Ga. App. 76, 354 S.E.2d 687 (1987); Hart v. Fortson, 263 Ga. 389, 435 S.E.2d 45 (1993); Clark v. Davis, 242 Ga. App. 425, 530 S.E.2d 49 (2000); Candies v. Hulsey, 277 Ga. 630, 593 S.E.2d 353 (2004); In the Interest of J.R.R., 281 Ga. 662, 641 S.E.2d 526 (2007); Montgomery v. Montgomery, 287 Ga. App. 77, 650 S.E.2d 754 (2007); Mays v. Rancine-Kinchen, 291 Ga. 283, 729 S.E.2d 321 (2012); Shirley v. Sailors, 329 Ga. App. 850, 766 S.E.2d 201 (2014).
Applicability
1. In General
Appeal only where probate court's exclusive jurisdiction in whole case involved.
- Appeal must be from decision of court of ordinary (now probate court) in exercise of exclusive jurisdiction in whole case made by application to probate. A ruling striking some but not all grounds of caveat to application to probate a will is not such a decision. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).
Motion to amend judgment does not extend time to file.
- An appeal from a motion to amend judgment of a probate court is not a final judgment and thus, is not an appealable decision within the meaning of subsection (a) of this section. Nor will such a motion extend the date for filing a notice of appeal under the plain and literal language of § 5-3-20(a). Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993).
An executrix's appeal from a probate court's decision was untimely and a motion to reconsider, which actually was a motion to amend, did not extend the time for appeal, and, under O.C.G.A. §§ 5-3-2 and5-3-20, the executrix should have appealed within 30 days of a final order discharging her and ordering that she return a certain amount to the estate. In re Estate of Thomas, 285 Ga. App. 615, 647 S.E.2d 326 (2007).
Appeal allowed from appointment of permanent administrator. Deckle v. McLeod, 144 Ga. 289, 86 S.E. 1082 (1915).
Decision regarding compensation and discharge of temporary administrator is appealable. Comer v. Ross, 100 Ga. 652, 28 S.E. 387 (1897).
Decision concerning application of administrator or guardian for discharge is appealable. Maloy v. Maloy, 131 Ga. 579, 62 S.E. 991 (1908).
Dismissal of petition to remove administrator is appealable. Wells v. Chambers, 28 Ga. App. 429, 111 S.E. 677 (1922).
Order denying petition by incompetent World War I veteran for removal of guardian.
- Appeal lies from order denying petition by incompetent World War I veteran for removal of guardian and appointment of new guardian, for accounting and recovery of moneys due, and for other relief, on account of alleged returns by guardian without proper vouchers and a devastavit as to certain amounts. Dillon v. Sills, 54 Ga. App. 299, 187 S.E. 725 (1936).
Appeal allowed from revocation of letters of guardianship, though no issue of fact is involved. Teasley v. Campbell, 133 Ga. 545, 66 S.E. 273 (1909); Teasley v. Vickery, 133 Ga. 721, 66 S.E. 918 (1910); Wash v. Wash, 145 Ga. 405, 89 S.E. 364 (1916).
When guardian is removed and the guardian's letters revoked, upon rule issued by ordinary (now judge of probate court), after hearing on the answer to such rule filed by guardian, the person may appeal to superior court. Bruce v. Dunn, 52 Ga. App. 758, 184 S.E. 361 (1936).
Decision refusing ex parte application made by executor or administrator is appealable. Findlay v. Whitmire, 15 Ga. 334 (1854).
Judgment for money against administrator or guardian under citation for settlement is appealable. Hobbs v. Cody, 45 Ga. 478 (1872).
Probate court's refusal to grant letters pendente lite is appealable. Barksdale v. Cobb, 16 Ga. 13 (1854); Gresham v. Pyron, 17 Ga. 263 (1855).
Judgment, final insofar as it adjudges that certain disbursements made by administrator were unauthorized, is appealable even though it reserves to ordinary (now judge of probate court) the right at a later date to order distribution of estate according to terms of will. Cubine v. Cubine, 69 Ga. App. 656, 26 S.E.2d 462 (1943).
Prerequisite to appeal from judgment setting apart homestead.
- Judgment of ordinary (now judge of probate court) setting apart a homestead can only be reviewed by certiorari unless objected to as provided for under former Civil Code 1895, § 2838 (see O.C.G.A. § 44-13-13). Fontano v. Mozley & Co., 121 Ga. 46, 48 S.E. 707 (1904).
Appeal from dismissal of application for homestead.
- No appeal lies from decision of ordinary (now judge of probate court) sustaining demurrer (now motion to dismiss) to application for homestead. In such case, certiorari is exclusive remedy for reviewing judgment. Cunningham v. United States Sav. & Loan Co., 109 Ga. 616, 34 S.E. 1024 (1900).
Habeas corpus proceedings.
- Section does not confer right of appeal from decision of ordinary (now judge of probate court) in habeas corpus proceeding. Burden v. Barron, 154 Ga. 630, 115 S.E. 1 (1922) (decided under former Code 1910, § 5011).
No direct appeal from interlocutory order.
- Appeal from probate court to superior court is for the purpose of conducting a de novo investigation in the superior court, and not for the purpose of correcting errors of law committed in the probate court. Thus, there can be no direct appeal to the superior court from an interlocutory ruling in the probate court. Driver v. State, 198 Ga. App. 643, 402 S.E.2d 524, cert. denied, 198 Ga. App. 897, 402 S.E.2d 524 (1991).
Decisions regarding annual returns of administrators are not covered by this section. Adams v. Beall, 60 Ga. 325 (1878) (decided under former Code 1873, § 3624).
Appeal by mental health facility from adverse commitment decision.
- Mental health facility did not have the right to appeal from an adverse involuntary commitment decision and the facility did not have statutory authority, nor would it have been constitutional to detain the patient pending appeal of a probate court order of discharge. Georgia Mental Health Inst. v. Brady, 263 Ga. 591, 436 S.E.2d 219 (1993).
Appeal from decisions of commissioners appointed by ordinary (now judge of probate court) not authorized. Pope v. Hays, 30 Ga. 539 (1860).
Decedent's non-party mother lacked standing to appeal.
- Notwithstanding a settlement agreement in which the decedent's wife released any interest in the decedent's estate, given that the decedent's mother was not a party in the probate court, despite publication of notice and service by the wife, the mother lacked standing to appeal the probate court's decision to award the wife a year's support. Booker v. Booker, 286 Ga. App. 6, 648 S.E.2d 445 (2007).
No appeal lies from preliminary ruling in main case.
- Appeal to superior court from preliminary ruling and before court of ordinary (now probate court) rendered judgment in the main case, would improperly usurp jurisdiction of court of ordinary, in violation of Ga. Const. 1976, Art. VI, Sec. VI, Para. I (see Ga. Const. 1983, Art. VI. Sec. I, Para. I) and former Code 1933, § 113-613 (see O.C.G.A. § 53-5-1) depriving that court of jurisdiction to decide main question. Hartley v. Holwell, 202 Ga. 724, 44 S.E.2d 896 (1947).
2. Distinction Between Appeal and Certiorari
Certiorari is proper but not exclusive remedy to correct certain errors in decisions of courts of ordinary (now probate courts). Stephens v. Bell, 41 Ga. App. 353, 153 S.E. 99 (1930).
Election of remedy.
- When either appeal under former Civil Code 1910, § 4999 (see O.C.G.A. § 5-3-2), or certiorari under former Civil Code 1910, § 5181 (see O.C.G.A. § 5-4-2) was appropriate, movant may elect which one the movant will pursue. Pierce v. Felts, 146 Ga. 809, 92 S.E. 541 (1917).
Distinction between statutory appeal on merits and appeal by writ of error.
- Statutory appeal providing for another trial in appellate court on merits of the case is altogether different from writ of error on appeal for correction of errors in trial eventuating in judgment from which appeal is taken. In latter proceeding the inquiry is into correctness of judgment upon pleading and evidence before the trial court. Appellate court affirms or reverses in whole or in part the judgment on review and certifies result to trial court, where final judgment is entered. That procedure has nothing in common with that of a statutory appeal. The statutory appeal allows litigants in certain cases the right to another trial in superior court upon compliance with certain requisites. Trial in superior court is had without reference to evidence introduced in former trial, and is a de novo investigation. City of Macon v. Ries, 179 Ga. 320, 176 S.E. 21 (1934).
Jurisdiction
Appeal imparts same jurisdiction as was possessed by probate court.
- Appeal brings whole case up for new hearing but with same jurisdiction as was possessed by court of ordinary (now probate court). Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972).
Superior court on trial of appeal from court of ordinary (now probate court) has no broader powers than court of ordinary itself had. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957).
Province of probate court versus proper trial court.
- In a child's appeal of a trial court's declaratory judgment that the will of a parent was republished by a codicil and that a portion of a prior order of a probate court that the ex-spouse of the testator was to be treated as if having predeceased the testator was null and void was upheld on appeal as the issue regarding the construction of the will regarding the ex-spouse was a question of law for the trial court and was not within the jurisdiction of the probate court. Honeycutt v. Honeycutt, 284 Ga. 42, 663 S.E.2d 232 (2008).
Effect of Appeal
Whole case brought up.
- By § 5-3-29, appeal under this section brings up whole case for new hearing. Moody v. Moody, 29 Ga. 519 (1859).
Case on appeal from the court of ordinary (now probate court) brings the whole case up for a new hearing. Goodman v. Little, 213 Ga. 178, 97 S.E.2d 567 (1957).
De novo investigation.
- Appeal under section places matter in superior court for de novo investigation under § 5-3-29. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972).
When such appeal is made, it is a de novo investigation for subject matter appealed. Anderson v. Smith, 76 Ga. App. 171, 45 S.E.2d 282 (1947), overruled on other grounds, Sorrells v. Sorrells, 247 Ga. 9, 274 S.E.2d 314 (1981).
Trial in superior court of statutory appeals is had without reference to evidence introduced in former trial, and is a de novo investigation; when a case is on appeal, any amendment, whether in matter of form or substance, may be made which could have been made while case was in primary court. Wofford v. Vandiver, 72 Ga. App. 623, 34 S.E.2d 579 (1945).
Appeal of an application for a year's support award by a probate court is a de novo proceeding in the superior court, and as such, the appeal is subject to the established procedures for civil actions, thus entitling a party to invoke summary judgment. Bright v. Knecht, 182 Ga. App. 820, 357 S.E.2d 159 (1987).
Case appealed must be tried anew.
- It is not the province of superior court on such appeal to review and affirm or reverse rulings of ordinary (now judge of probate court), but to try issue anew and pass original judgments on questions involved as if there had been no previous trial. Knowles v. Knowles, 125 Ga. App. 642, 188 S.E.2d 800 (1972).
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Appellate Review, § 183 et seq.
ALR.- Questions or legal theories affecting trust estates as subject to consideration on appeal though not raised below, 11 A.L.R.2d 317.
Change of law after decision of lower court as affecting decision on appeal or error, 111 A.L.R. 1317; 151 A.L.R. 987.
Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586.
Appealability of order, of court possessing probate jurisdiction, allowing or denying tardy presentation of claim to personal representative, 66 A.L.R.2d 659.
Appealability of order entered in connection with pretrial conference, 95 A.L.R.2d 1361.
Judgment subject to appeal as entitled to full faith and credit, 2 A.L.R.3d 1384.