Opinion
No. 1735
Opinion Filed June 27, 1911.
APPEAL AND ERROR — Dismissal — Failure to Serve Summons. A petition in error will be dismissed on motion even though the same is filed in this court within one year allowed under the statute, where no waiver of issuance and service of summons is had, and no general appearance made within such time, or where a summons is issued on a praecipe duly filed but is never served.
(Syllabus by the Court.)
Error from Jefferson County Court; Cham Jones, Judge.
Action between J. C. Hartsell and Bob Edwards and A. W. Atwood. From the judgment, Hartsell brings error. Dismissed.
C. E. Davis, for plaintiff in error.
J. H. Harper, for defendants in error.
This case presents error from the county court of Jefferson county, and was filed in this court May 31, 1910, to review a judgment of that court dated January 17, 1910. May 22, 1911, counsel for defendant's in error filed their motion to dismiss the proceeding because plaintiff has failed to have summons in error issued and served upon defendants in error or either of them within one year from the date of the judgment from which the appeal is sought to be prosecuted. The records of this court show that praecipe for summons was filed on October 27, 1910, and summons issued, but that no return was made upon the same, and defendants in error and their counsel each make oath that no summons in error was ever served upon them, and there is no evidence of any waiver or general appearance having been made. Under these circumstances the motion to dismiss must be sustained. Coleman v. Eaton, 26 Okla. 858, 110 P. 672; Chicago, Rock Island Pacific Ry. Co. v. Bradham, 24 Okla. 250, 103 P. 591; McMurtry v. Byrd et al., 23 Okla. 597, 101 P. 1117; and Court of Honor v. Wallace, 23 Okla. 734, 102 P. 111.
The action is dismissed.
All the Justices concur.