THE STATE OF SOUTH CAROLINA
In the Court of Common Pleas


__________________________


APPEAL FROM AIKEN COUNTY
Probate Court
Donald B. Hocker, Special Probate Judge for Aiken County


___________________________


Case No. 2002ES02-00489


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Creighton W. Sloan ?c?c?c?c?c?c?c?c?c?c?c?c.........
Respondent


VS.


Samuel H. Sloan ?c?c?c?c?c?c?c?c?c?c?c..................
Appellant


PETITION FOR REHEARING FROM ORDER DISMISSING APPEAL


___________________________


Samuel H. Sloan, being duly sworn, deposes and says:


1. I hereby move for a rehearing of the orders dated April 6 and April
8, 2004 dismissing this appeal. The basis for my motion is that
unbeknownst to me documents had been placed in this file of this case
which were not properly before this court and which should not have
been considered by the court. In particular, there was an affidavit in
the court file signed by a secretary to Judge Hocker which formed the
basis for Judge Hocker's claim that my appeal should be dismissed.
Judge Hocker is not a judge of the Aiken County Probate Court. He sits
in Laurens County. He never came to Aiken during the course of this
case. Therefore, it is difficult to understand what an affidavit from
his secretary is doing in the court file. This affidavit was so
important that my adversary read it in full during the hearing on
April 6. I did not know what she was reading. Had I been quicker on my
feet, I would have realized that she was reading from a document which
I had never seen, which had never been served upon me and which was
not properly part of the record of this case.


2. This affidavit contained hearsay which is barred by the rules of
evidence. In essence, the affidavit stated that the secretary, Sherri
T. Osborne, had spoken to me on the telephone about a week after Judge
Hocker had rendered his decision and that I said that I had received
the decision and order of the court. This affidavit was used at the
basis for the finding that I had filed my notice of appeal more than
ten days after this conversation, and therefore my appeal should be
dismissed.


3. Judge Hocker had no right to interfere in this appeal. First he
wrote a letter to the appellate court dated January 8, 2004 stating
that my appeal should be dismissed and therefore he was not
transmitting the return. This was improper. I had filed my notice of
appeal and it had been accepted by the appellate court. At that point,
Judge Hocker's role in this case should have ended. It is specifically
unethical for a lower court judge to try to influence the outcome of
an appeal. Indeed, for this reason, Judge Hocker should be removed
from this case and the case sent back to the probate court for a new
hearing before a different judge.


4. The Code of Judicial Conduct clearly states that a lower court
judge is not to interfere with an appeal. Here, Judge Hocker has done
four unethical things to try to prevent me from appealing.


A. After I filed my notice of appeal, Judge Hocker wrote a letter
stating that he was not transmitting the record to the appellate court
because I had only ten days to file my notice of appeal and had not
filed it on time and I had also not filed my grounds for appeal.


B. After Judge Keesley of the Appellate Court ordered Judge Hocker to
transmit the record anyway, he still did not transmit the entire
record. Instead, he wrote a letter stating that he would transmit the
tapes of the proceedings "upon request". Judge William Keesley had
already requested more than just the tapes. He had also ordered a
transcript of the proceedings of the court below.


C. Judge Hocker had his secretary, Sherri T. Osborne, write and file
an affidavit dated March 31, 2004 which has been put in the record
which states that she had a telephone conversation with me sometime
between November 5, 2003 and November 10, 2003 concerning a cost sheet
I had received from her. This affidavit purports to establish the time
by which I had received Judge Hocker's decision. This affidavit was
double hearsay and does not belong in the file of this case. Again,
Judge Hocker was interfering with the appellate process which he is
ethically barred from doing.


In addition, the above affidavit was demonstrably false. It said that
I had received the decision of the court between November 5 and
November 11, 2003. However, it must be remembered that Judge Hocker
was sitting in Laurens County, but as a judge of the Aiken County
Probate Court. He made his decision on November 3, 2003. That decision
would have had to have been mailed from Laurens, South Carolina to
Aiken, South Carolina to be entered and then the clerk of that court
would have had to have mailed that decision to me in Brooklyn, New
York. According to mapquest.com the distance from Laurens to Aiken is
81.6 miles and the driving time is 1 hour 52 minutes. Therefore, the
decision would have had to have been mailed. Therefore, it was
impossible for me to have received the decision in Brooklyn, New York
by November 5, 2003. In fact, as far as I can recall, the Aiken County
Probate Court never sent me the decision at all. Judge Hocker was very
insistent that this case was pending in Aiken, that all court filings
must take place in Aiken and that nothing was to be sent to him
directly in Laurens. Yet, he claims to know when I received his
decision and when the court received my grounds for appeal.


D. In his return dated February 17, 2004, Judge Hocker states "The
appealed order provides a summary of the testimony". This statement is
patently false as can be readily seen. There were 65 exhibits entered
into evidence. The appealed order makes no mention of any of these
exhibits nor does it mention the testimony which took place in Judge
Hocker's Court. Many of these 65 exhibits were concerned with the five
lawsuits pending between Helen Marjorie Sloan (my mother) and
Creighton Wesley Sloan (my brother) in the Lynchburg Virginia Circuit
Court. My contention is that Creighton is barred from being the
personal representative of his mother because there are still to this
day lawsuits pending between them. The fox cannot be allowed to guard
the henhouse. Judge Hocker made no mention of this pending litigation
and provided no reason why he feels that these matters should be
ignored.


5. I am including the following exhibits to establish the above
points:


Exhibit A - Letter from Judge Hocker dated January 8, 2004 stating
that he is not transmitting the return of this appeal because my
appeal was untimely.


Exhibit B - Affidavit from Sherri T. Osborne dated March 31, 2004
stating that she spoke to me on the telephone between November 5 and
November 10, 2003 and therefore I knew about Judge Hocker?es decision.



Exhibit C - Order from Judge Hocker dated February 17, 2004 stating,
"The tapes are available upon request. The appealed order provides a
summary of the testimony."


6. The important point here is that I filed my notice of appeal with
the Aiken County Probate Court and the Aiken County Court of Common
Pleas. Both courts accepted my filing. It is the job of the clerk of
the court to decide whether my appeal was timely filed or not. Both
clerks decided that my appeal was timely. On the same day as the final
hearing before Judge Hocker, I drove from Laurens to Aiken and
discussed with the clerks of both courts the procedure for filing my
appeal. I asked them what the filing fee was. After consulting with
other clerks in the office they came back and said that they did not
know what the filing fee was or if there was any fee at all, but I
should file my notice of appeal and if a fee was required they would
write to inform me. I did exactly as they told me to do. When I sent
in my notice of appeal, they wrote back to inform me that a fee of
$100 was required. I promptly wrote and paid the $100. Now, this court
is using this time delay as the basis to dismiss my appeal even though
the clerk of the court accepted my appeal.


7. Opposing counsel did not file her motion to dismiss my appeal until
January 22, 2003, which was 14 days after Judge Hocker wrote his
letter of January 8, 2004 stating that my appeal should be dismissed.
It is fairly obvious that opposing counsel would probably not have
filed her motion to dismiss were it not for Judge Hocker's letter.
Then, after Judge William P. Keesley initially denied the motion to
dismiss on February 4, 2004, Judge Hocker had his secretary file an
affidavit dated March 31, 2004 recounting a telephone conversation she
said that she had with me between November 5 and November 10, 2003.
All this was clearly improper.


8. The affidavit of Sherry T, Osborne dated March 31, 2004 was read in
full to the court at the hearing on April 6, 2004. In view of the
dates of only one week later, it is obvious that I had never seen this
affidavit and had no notice of it. As this affidavit was not properly
before the court and because this court based its decision to dismiss
my appeal on this affidavit whereas the previous judge at the hearing
on February 4, 2004 had denied the same motion, therefore, this court
should grant a rehearing and upon rehearing the decision should be
reversed.


WHEREFORE, for all of the reasons set forth above, this petition for a
rehearing should be granted and, upon rehearing, the motion to dismiss
this appeal should be denied.


____________________________
Samuel H. Sloan


Sworn to before me this 5th
day of May, 2004


______________________________
NOTARY PUBLIC


Respectfully
Submitted,


Samuel H.
Sloan
920 Belmont
Avenue
Brooklyn NY
11208


(718) 277-6957


1-347-351-9352





May 5, 2004


Copy to:


Catherine H. Kennedy
Attorney for Creighton Sloan
Nelson, Mullins, Riley & Scarborough, LLP
1330 Lady Street
PO Box 11070
Columbia, South Carolina 29201


Creighton W. Sloan
102 Indian Creek Trail
Aiken, South Carolina 29803


Patricia L. Harrison
611 Holly Street
Columbia, South Carolina 29205


Affidavit of Service


Samuel H. Sloan, being duly sworn, deposes and says that on May 5,
2004 he mailed the within petition for rehearing from order dismissing
appeal to the following addresses:


Catherine H. Kennedy
Attorney for Creighton Sloan
Nelson, Mullins, Riley & Scarborough, LLP
1330 Lady Street
PO Box 11070
Columbia, South Carolina 29201


Creighton W. Sloan
102 Indian Creek Trail
Aiken, South Carolina 29803


Patricia L. Harrison
611 Holly Street
Columbia, South Carolina 29205


__________________________
Samuel H.
Sloan


Sworn to before me this 5th
Day of May 2004


______________________________
NOTARY PUBLIC