Opinion
No. 5466
Opinion Filed January 13, 1914.
APPEAL AND ERROR — Service of Summons in Error — Sufficiency. A petition in error was filed on the last day of the statutory period for commencing a proceeding in error, and on the same date a summons in error was issued, but service thereof was not had within 60 days after the issuance of the same. Held, that the proceeding was not commenced within the period required by the statute, and that the same should be dismissed.
(Syllabus by the Court.)
Error from District Court, Muskogee County; R. C. Allen, Judge.
In the matter of the estate of Amanda Herod, deceased. From a judgment decreeing and finding the purported will of Amanda Herod to be a forgery, Wallace Herod and others bring error. Dismissed.
O. B. Jefferson, for plaintiffs in error.
Geo. C. Beidleman and Wright Blinn, for defendants in error.
In February, 1912, Wallace Herod filed a petition in the county court of Muskogee county, Okla., asking for the admission to probate of a purported will of Amanda Herod, deceased. Georgia Smith, an heir at law of the decedent, and certain other heirs contested said will. Same was admitted to probate by the judge of the county court, and from his order and decree Georgia Smith and others appealed to the district court of said county. Judgment was entered by said district court in favor of contestants, finding and decreeing that said purported will of Amanda Herod was and is a forgery. From this judgment Wallace Herod, F. P. Mayes, and J. C. Johnson appeal to this court.
The defendants in error filed a motion to dismiss this appeal for the reason: Third:
"That summons in error has not been served upon Georgia Smith within 60 days after the issuance of said summons in error and the expiration of the statutory period for commencing the proceeding in error in this court."
The record shows that Georgia Smith is a necessary party defendant, but no summons in error has been served upon her, nor has she waived service of the same. The petition in error and case-made were filed in this court on August 13, 1913, the last day of the statutory period for perfecting the appeal from the judgment sought to be reversed.
Upon the authority of School District No. 39, Kiowa County, v. Fisher, 23 Okla. 9, 99 P. 646; Wedd v. Gates et al., 15 Okla. 602, 82 P. 808; Durant et al. v. Munford, 38 Okla. 552, 134 P. 50, this appeal must be dismissed.
All the Justices concur.