Harvey v. Sullivan

The probate court properly allowed the will's propounder to establish the testatrix's signature in accordance with O.C.G.A. § 53-5-24, because the propounder established that one of the witnesses to the will was dead and the other was unavailable.

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After Frances E. Sullivan’s death, her nephew William E. Sullivan, appellee here, offered her will for probate. Appellant Harvey and another relative filed caveats. The other relative’s caveat and Harvey’s demand for jury trial were disallowed on procedural grounds. After hearing evidence, the trial court admitted the will to probate.

1. Conceding that he filed his demand for jury trial almost four years after filing his first caveat in this case, and recognizing that OCGA § 15-9-121 requires that demands for jury trial in probate court be filed in writing within 30 days after filing of a party’s initial pleading, Harvey contends that application of the statute’s “unrealistic” time requirement against a pro se party renders the statute unconstitutional as a denial of the constitutional right to a jury trial. However, no constitutional issue was presented to or ruled upon by the trial court, so that issue is not properly before us. Cotton, Inc. v. Phil-Dan Trucking, Inc., 270 Ga. 95 1 507 SE2d 730 1998. We note, however, that this Court has held before that the right to a jury trial is not denied so long as a jury trial can be had “by compliance with reasonable conditions.” Davis v. Gaona, 260 Ga. 450 3 396 SE2d 218 1990, quoting DeLamar v. Dollar, 128 Ga. 57, 65 57 SE 85 1907. Harvey’s only contention that the statutory time limit is unfair is based not on a contention of unreasonableness, but on his status as a pro se litigant. ” ‘Pro se parties are generally bound by the same rules of practice and procedure as a lawyer.’ Cit.” Weber v. State, 203 Ga. App. 356, 357 416 SE2d 868 1992. We find no error in the trial court’s denial of Harvey’s demand for a jury trial.

Harvey v. Sullivan

The probate court properly allowed the will's propounder to establish the testatrix's signature in accordance with O.C.G.A. § 53-5-24, because the propounder established that one of the witnesses to the will was dead and the other was unavailable.

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