Opinion
No. 999
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 in error 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 Wagoner County Court; W. T. Drake, Judge.
Action between J. W. Simmons and B. F. Lauffer. From the judgment, Simmons brings error. Dismissed.
Allen Pinson, for the plaintiff in error.
W. A. Brigham, for defendant in error.
This case presents error from the county court of Wagoner county, and was filed in this court July 30, 1909, to secure a review of a judgment of that court dated August 22, 1908. May 8, 1911, counsel for defendant in error filed a motion to dismiss the proceeding for the reason that no summons in error had to that date been served upon defendant in error or on his attorney of record, and no waiver thereof nor general appearance had been made and more than one year had elapsed since the filing of the appeal. The records of this court disclose that on October 8, 1909, a praecipe was filed and summons issued, which was returned October 23, 1909, showing defendant not found. On November 12, 1909, a praecipe for an alias summons was filed, and the alias summons issued, which was returned on November 19, 1909, also showing that defendant was not found. Under these circumstances, under the authority of Hartsell v. Edwards et al., ( ante) 116 P. 942, an opinion of this court handed down at this term, and a uniform line of authorities, the motion is sustained and the action dismissed.
All the Justices concur.