Opinion
No. 5704
Opinion Filed June 23, 1914.
APPEAL AND ERROR — Dismissal — Failure to Serve Summons. A motion to dismiss an appeal will be sustained where the record discloses that neither a defendant in error, who was the sole plaintiff below, nor his attorneys of record in the original case, have been served with summons in error.
(Syllabus by the Court.)
Error from District Court, Johnston County; Robt. M. Rainey, Judge.
Action by William D. Murrell against Katie O'Brien and others. Judgment for plaintiff, and Katie O'Brien brings error. Dismissed.
Cornelius Hardy, for plaintiff in error.
Potterf Walker, for defendants in error.
This is an appeal from an order of the trial court overruling the motion of plaintiff in error to set aside a sale of real estate and confirming such sale. Defendant in error William D. Murrell has filed in this court a motion to dismiss this appeal for the following, among other, reasons: That the summons in error issued out of this court upon the petition in error was not served upon him or his attorneys of record in the original case. This motion to dismiss was served on counsel for plaintiff in error on April 28, 1914.
This was an action upon promissory notes and to foreclose a mortgage on real estate securing the same. Defendant in error William D. Murrell was the sole plaintiff therein, and he is an indispensable party to this appeal. He appears in this court only for the purpose of his motion to dismiss. The order appealed from was entered on the 5th day of May, 1913, and the appeal lodged in this court on October 22, 1913. The record discloses that service of summons in error has not been had upon William D. Murrell or his attorneys of record in the original case, but was had, on October 23, 1913, upon other and different attorneys who do not appear of record in the court below, and had no connection with the case so far as is shown by the record here. Cunningham Com. Co. v. Rorer Mill Elev. Co., 25 Okla. 133, 105 P. 676; Southwestern Surety Ins. Co. v. Hall, 40 Okla. 447, 139 P. 305.
It follows, therefore, that the motion to dismiss the appeal must be sustained; and it is so ordered.
All the Justices concur.