Opinion
No. 4995
Opinion Filed July 13, 1915.
APPEAL AND ERROR — Failure to Issue Summons in Error — Dismissal. Where summons in error is not issued and served within the time allowed by statute, and no praecipe therefor has been filed, and where the defendant in error has not appeared in this court, and the time has expired in which a valid summons may issue, the appeal will be dismissed for want of jurisdiction.
(Syllabus by Watts, C.)
Error from District Court, McClain County; R. McMillan, Judge.
Action by H. L. Vaden against the Purcell Compress Company, a corporation. Judgment for defendant, and plaintiff brings error. Dismissed.
J. W. Hocker, for plaintiff in error.
Carter Cook, for defendant in error.
The plaintiff in error, plaintiff below, sued the defendant in error, defendant below, in the district court of McClain county, where a demurrer was interposed to the petition and was sustained by the trial court. Plaintiff declined to plead further, and judgment was rendered dismissing plaintiff's petition, and he brings error.
The petition in error and transcript were filed in this court April 9, 1913. It does not appear that a pr æcipe for summons in error was filed, or that summons in error was served upon the defendant, or that it waived same, nor has the defendant appeared in this court. In Springfield Fire Marine Ins. Co. v. Belt, 45 Okla. 49, 144 P. 606, it was held:
"Where summons in error is not issued and served within the time allowed by statute, and no pr æcipe therefor has been filed, * * * and the time has expired in which a valid summons may issue, the appeal will be dismissed for want of jurisdiction."
It was also held in Garland v. Henderson, 43 Okla. 597, 143 P. 661:
"A petition in error will be dismissed on motion, even though the same is filed within the statutory period, where no waiver of issuance and service of summons is had, and no praecipe for same filed, and no summons is issued or general appearance made within such time."
See, also, Oklahoma City v. Wheeland, 40 Okla. 308, 117 P. 1172; O'Brien v. Murrell, 43 Okla. 164, 141 P. 770.
We therefore recommend that the petition in error be dismissed.
By the Court: It is so ordered.