Opinion
No. 1039
Opinion Filed July 12, 1910.
APPEAL AND ERROR — Failure to Serve Summons — Dismissal. Syllabus same as in the case of McMurtry v. Byrd et al. 23 Okla. 597, 101 P. 1117.
(Syllabus by the Court.)
Error from Kay County Court; Claude Duval, Judge.
Action between James M. Coleman and George Eaton. From the judgment, Coleman brings error. Dismissed.
L. D. Thomason, for plaintiff in error.
G. A. Chappell, for defendant in error.
This case presents error from the county court of Kay county. Judgment was rendered on April 15, 1909, and a motion for new trial which was filed was denied April 17, 1909. A case-made was filed in this court August 24, 1909. Although more than one year has elapsed from the date of the overruling of the motion for new trial, no waiver of issuance or service of summons in error has been had and no pr aelig;cipe for the same filed and no summons issued or general appearance made by defendant in error. May 10, 1910, counsel for defendant in error filed a motion in this court to dismiss this action for and on account of the foregoing matters. This motion must be sustained. This court has held in a number of cases — Chicago, Rock Island Pacific Ry. Co. v. Bradham, 24 Okla. 250, 103 P. 591, McMurtry v. Byrd, 23 Okla. 597, 101 P. 1117, and Court of Honor v. Wallace, 23 Okla. 734, 102 P. 111 — 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 pr aelig;cipe for the same filed, and no summons issued or general appearance made within such time."
The action is dismissed.
All the Justices concur.