Opinion
No. 1731
Opinion Filed November 14, 1911.
APPEAL AND ERROR — Dismissal — Issuance of Summons. A petition in error will be dismissed on motion, even though the same is filed in this court within the year allowed under the statute, where no waiver of issuance and service of summons in error is had, and no praecipe for the same filed, and no summons issued or general appearance made, within such time.
(Syllabus by the Court.)
Error from District Court, Garvin County; R. McMillan, Judge.
Action between T. J. Hudson and Wade Lapsley and another. From the judgment, Hudson brings error. Dismissed.
H. M. Carr, for plaintiff in error.
J. B. Thompson, for defendants in error.
This cause comes on to be heard upon a motion to dismiss the petition in error and appeal herein, upon the ground that no summons in error or praecipe therefor, or waiver of issuance and service of same, were filed in this court until after the expiration of one year from the date of the rendition of the judgment in the court below. The record shows that the judgment was rendered below on the 2nd day of November, 1909; that the petition in error, with case-made attached, was filed in this court on the 30th day of May, 1910; that no summons in error was ever issued, and no praecipe therefor filed; that on the 31st day of March, 1911, waiver of issuance and service of summons in error, signed by counsel for defendants in error, was filed.
The appeal must be dismissed. The rule is that "a petition in error will be dismissed, on motion, even though the same is filed in this court within the year allowed under the statute, where no waiver of issuance and service of summons in error is had, and no praecipe for the same filed, and no summons issued or general appearance made, within such time." McMurtry v. Byrd et al., 23 Okla. 597, 101 P. 1117; Court of Honor v. Wallace, 23 Okla. 734, 102 P. 111; C., R.I. P. Ry. Co. v. Bradham, 24 Okla. 250, 103 P. 591; Coleman v. Eaton, 26 Okla. 858, 110 P. 672.
The appeal is therefore dismissed.
All the Justices concur.