Opinion
No. 5102
Opinion Filed July 14, 1914.
APPEAL AND ERROR — Summons in Error — Dismissal. A petition in error will be dismissed on motion, even though the same is filed in this court within the six months 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, Coal County; Robert M. Rainey, Judge.
Action by V. S. Cook against the Tupelo Townsite Company and others, for foreclosure of mortgage, and defendant S. B. Brooks filed cross-petition. Judgment for plaintiff, and judgment for Brooks on cross-petition, and the Tupelo Townsite Company brings error. Appeal from judgment on cross-petition dismissed.
Fooshee Brunson, for plaintiff in error.
Wimbish Duncan, for defendants in error.
V. S. Cook filed his petition in the court below against Tupelo Townsite Company et al., defendants, C. M. Witter not being made a defendant, for judgment and foreclosure of mortgage. S. B. Brooks, defendant, filed his cross-petition against Tupelo Townsite Company and C. M. Witter, for foreclosure of mortgage. On the 21st day of December, 1912, judgment was rendered in favor of plaintiff Cook and against Tupelo Townsite Company et al., and on the same day judgment was entered in favor of Brooks on his cross-petition and against Tupelo Townsite Company and C. M. Witter. A motion for a new trial was overruled as to both judgments. Case-made was prepared, served, and filed in this case, and S. B Brooks now moves to dismiss the appeal because C. M. Witter, codefendant of Tupelo Townsite Company in the court below, is not made a party to this appeal, no summons in error being issued or waived.
The appeal, in so far as the judgment on the cross-petition of S. B. Brooks is concerned, must be dismissed, but this order of dismissal shall not affect the appeal with reference to the judgment rendered in favor of V. S. Cook against Tupelo Townsite Company et al. See C., R.I. P. Ry. Co. v. Bradham, 24 Okla. 250, 103 P. 591; Watson v. Rein et al., 26 Okla. 47, 108 P. 397.
All the Justices concur.