2020 Georgia Code
Title 15 - Courts
Chapter 9 - Probate Courts
Article 6 - Jury Trials and Appeals
§ 15-9-120. Definitions

Universal Citation: GA Code § 15-9-120 (2020)

As used in this article, the term:

  1. "Civil case" means those civil matters:
    1. Over which the judge of the probate court exercises judicial powers;
    2. Within the original, exclusive, or general subject matter jurisdiction of the probate court; and
    3. Which, if not for this article and Code Section 5-6-33, could be appealed to superior court for a de novo investigation with the right to a jury trial under Code Sections 5-3-2 and 5-3-29.
  2. "Probate court" means a probate court of a county having a population of more than 90,000 persons according to the United States decennial census of 2010 or any future such census in which the judge thereof has been admitted to the practice of law for at least seven years.

(Code 1981, §15-9-120, enacted by Ga. L. 1986, p. 982, § 6; Ga. L. 1988, p. 743, § 2; Ga. L. 1988, p. 745, § 2; Ga. L. 1988, p. 746, § 2; Ga. L. 1994, p. 1665, § 2; Ga. L. 2012, p. 683, § 3/HB 534.)

Law reviews.

- For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012).

JUDICIAL DECISIONS

Statute was not an unconstitutional special law.

- O.C.G.A. § 15-9-120(2), granting the right to a jury trial in the probate courts of counties with a certain population according to the 1990 decennial census "or any future such census" was not an unconstitutional special law, under Ga. Const. 1983, Art. III, Sec. VI, Para. IV(a), because the statute's use of the disjunctive "or" gave the statute the elasticity required to make the statute a general law as this allowed counties to move into or out of this class of counties according to the latest census. Ellis v. Johnson, 291 Ga. 127, 728 S.E.2d 200 (2012).

County that did not have a population of more than 100,000 persons according to either the 1980 or 1990 decennial census lacked authority to entertain a motion for new trial, and any such motion therefore being without legal force and effect before the county probate court would not serve to extend the time for filing a notice of appeal under either O.C.G.A. § 5-3-20 or O.C.G.A. § 5-6-38(a). Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993).

Construction with O.C.G.A. § 5-3-30. - Because appeals from the probate court to the superior court continue without special limitations on the right to a jury trial and de novo appeals to the superior court from the probate court are tried by a jury unless the right to a jury trial is waived, the trial court erred in denying the widow's request for a jury trial. Montgomery v. Montgomery, 287 Ga. App. 77, 650 S.E.2d 754 (2007).

Dougherty County probate court allowed to hold jury trials.

- Dougherty County, Ga., Probate Court (Probate Court) had jurisdiction to hold jury trials because: (1) the 2010 census, which dropped the county's population below that required by O.C.G.A. § 15-9-120(2) to allow jury trials in probate court was not effective until July 1, 2012, under O.C.G.A. § 1-3-1(d)(2)(D); and (2) a statutory amendment, effective on that date, decreased the population requirement. Ellis v. Johnson, 291 Ga. 127, 728 S.E.2d 200 (2012).

Cited in Lawhorne v. Horace, 188 Ga. App. 427, 373 S.E.2d 263 (1988); In re E.P.M., 189 Ga. App. 770, 377 S.E.2d 535 (1989); In re Estate of Dasher, 259 Ga. App. 201, 575 S.E.2d 921 (2002); In re Estate of Taylor, 270 Ga. App. 807, 608 S.E.2d 299 (2004); Honeycutt v. Honeycutt, 284 Ga. 42, 663 S.E.2d 232 (2008); Mays v. Rancine-Kinchen, 291 Ga. 283, 729 S.E.2d 321 (2012).

OPINIONS OF THE ATTORNEY GENERAL

O.C.G.A. § 15-9-120 et seq. does not affect mental health cases heard by probate courts under O.C.G.A. §§ 37-3-150,37-4-110, and37-7-150. 1986 Op. Att'y Gen. No. U86-18.

Right to jury trial in proceedings to appoint emergency guardian.

- If the appointment of an emergency guardian under former O.C.G.A. § 29-5-8 is only for that period of time pending the outcome either of the emergency guardianship hearing or the permanent guardianship hearing, the order would not be final or appealable to a jury in superior court under current law, and hence would not be subject to Ga. L. 1986, p. 982, affecting procedures before the probate court in certain counties; on the other hand, if the petition before the probate court seeks only an emergency guardian for a period not to exceed 45 days, as in a situation where immediate surgical or other medical consent is required for a seriously ill proposed ward, an order granting such a petition, which would leave nothing further to be decided by the probate court, would be final, appealable to a superior court jury under current law, and hence would be a "civil case" under the 1986 Act, giving a party a right to demand a jury trial. 1986 Op. Att'y Gen. No. U86-18.

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