Undertaking on appeal and order staying execution

(a) Upon appeal to the circuit court, the case must be heard, in a manner consistent with other appeals from magistrates court, as soon as is feasible after the appeal is docketed. (b) No court shall stay an execution of a judgment for ejectment. Upon appeal to the circuit court, the tenant may file an affidavit with the circuit court or the magistrate having jurisdiction, in which the tenant promises to pay to the landlord the amount of rent, determined by the magistrate in accordance with Section 27-40-780, as it becomes due periodically after the judgment was entered, in exchange for a stay of the execution of a judgment for ejectment. Once the affidavit is accepted by the court, any magistrate or circuit court judge shall order a stay of execution upon the undertaking. (c) The affidavit by the tenant and the order staying execution may be substantially in the following form: State of South Carolina County of ___________ ____________________ Landlord vs. ____________________ Tenant Bond to Stay Execution on Appeal to Circuit Court Now comes the tenant in the above entitled action and respectfully shows the court that a judgment of ejectment was issued against the tenant and for the landlord on the ____ day of ___________, 20__, by the magistrate. The tenant also shows the court the tenant has filed an appeal of the judgment of ejectment to the circuit court on the ___ day of ________, 20__. Pursuant to the findings of the magistrate, the tenant is obligated to pay rent in the amount of $______ per ______ , due on the ____ day of each ___________ . Tenant hereby promises to pay the periodic rent hereinafter due according to the aforesaid findings of the court and moves the circuit court to stay execution on the judgment for ejectment until this matter is heard on appeal and decided by the circuit court. This the ___________ day of ___________ , 20 ____. ______________________________ Tenant Upon execution of the above bond, execution on the judgment of ejectment is hereby stayed until the action is heard on appeal and decided by the circuit court. If tenant fails to make any rental payment within five days of the due date under the agreed terms, upon application of the landlord to whichever court accepted the affidavit in exchange for the stay of ejectment following the initiation of the appeal, the stay of execution shall dissolve, the appeal by the tenant to the circuit court on issues dealing with possession must be dismissed and the sheriff may dispossess the tenant. If the application is submitted to the magistrate, the landlord shall be required to provide notice of the application to the circuit court having appellate jurisdiction prior to ejecting the tenant and to effectuate proper dismissal of the appeal. This the ___________ day of ___________ , 20 ____. ______________________________ Judge (d) If either party disputes the amount of the payment or the due date in the affidavit, the aggrieved party may move for modification of the terms of the affidavit before the circuit court. Upon the motion and upon notice to all interested parties, the court shall hold a hearing as soon as is feasible after the filing of the motion and determine what modifications, if any, are appropriate. No judgment for ejectment may be executed pending a hearing on the motion, provided the tenant complied with the terms of the affidavit prior to moving for modification. During the pendency of the motion, the tenant shall continue to pay rent in accordance with the terms of the affidavit, and at the discretion of the judge, make payments directly to the landlord or deposit the payments into an escrow account. Upon resolution of the motion, any difference between the total rent amount paid during the appeal and the total amount owed to the landlord, as modified by the court, shall be either refunded to the tenant or become an additional obligation of the tenant to be paid to the landlord. (e) If the tenant fails to make a payment within five days of the due date according to the affidavit and order staying execution, the clerk, upon application of the landlord to whichever court accepted the affidavit in exchange for the stay of ejectment following the initiation of the appeal, shall issue a warrant of ejectment to be executed pursuant to Section 27-37-40 of the S.C. Code. If the application is submitted to a court not having appellate jurisdiction over the matter, the landlord shall be required to provide notice of the application to the court having appellate jurisdiction prior to ejecting the tenant. (f)(1) Upon appeal to the Supreme Court or to the court of appeals, a court shall not stay an execution of a judgment for ejectment unless the tenant files an affidavit with the proper appellate court, in which the tenant promises to pay to the landlord the amount of rent, determined by order of the judge of the circuit court, as it becomes due periodically after judgment was entered. Once the affidavit is accepted by the court, the judge of the court having jurisdiction shall order stay of execution upon the undertaking. (2) The tenant's failure to comply with the terms of the affidavit entitles the landlord to execution of the judgment for possession in accordance with the provisions of subsection (e) of this section.