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Montgomery v. Montgomery

O.C.G.A. § 5-3-30 a, as amended in 1998 to provide for non-jury trials in magistrate court appeals, unless either party files a demand for a jury trial within 30 days, was not intended to deny the right to a jury trial or place special limitations on the right to a jury trial in appeals from the probate court.

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Following her husband’s death, Betty R. Montgomery petitioned the Upson County probate court for year’s support. The deceased’s son, Howard B. Montgomery, filed a caveat. After the probate court awarded Betty Montgomery half interest in the marital home and an automobile, Howard Montgomery appealed to the superior court. The trial court awarded Betty Montgomery the automobile, her personal property, and $14,000, and ordered that a judgment lien be placed against the residence, among other things. On appeal, Betty Montgomery contends that the trial court erred when it denied her demand for a jury trial. We agree and reverse. Howard Montgomery filed his notice of appeal to the superior court on June 7, 2006. Betty Montgomery demanded a jury trial on August 21, 2006, which the trial court denied because the demand was made more than 30 days after the filing of the appeal and was therefore untimely in light of OCGA § 5-3-30.

Before July 1, 1998, OCGA § 5-3-30 provided that all appeals to the superior court or state court shall be tried by a jury at the first term after the appeal has been entered unless good cause is shown for continuance; provided, however, that trial by jury may be waived by the consent of both parties to trial by the court without a jury as provided in Code Section 9-11-39. Effective July 1, 1998, the foregoing provision was struck and amended to provide:

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