Opinion
No. 5408
Opinion Filed January 13, 1914.
APPEAL AND ERROR — Summons — Necessity — Dismissal. A petition in error will be dismissed on motion, even though the same is filed in this court within the time allowed under the statute, where no waiver of issuance and service of summons in error is had, and no praecipe for same is filed, and no summons issued, or general appearance made, within such time.
(Syllabus by the Court.)
Error from Superior Court, Oklahoma County; Edward D. Oldfield, Judge.
Action between Oklahoma City and Thomas E. Wheeland and others. From the judgment, the City brings error. Dismissed.
J. W. Johnson, for plaintiff in error.
W. A. Smith, for defendants in error.
The judgment from which this appeal is attempted to be prosecuted was rendered in the court below on February 1, 1913. Petition in error and case-made were filed in this court on July 31, 1913. No waiver of issuance and service of summons in error and no praecipe for same was filed within the time allowed by chapter 18, p. 35, Sess. Laws 1910-11, and no general appearance has been made. Defendants in error have moved to dismiss the appeal, for the reason that no summons in error has been issued, served, or waived, and that no praecipe therefor has been filed within the time required by law. Upon the authority of McConnell v. Security State Bank et al., 35 Okla. 151, 128 P. 683, and authorities therein cited, the appeal must be dismissed; and it is so ordered.
All the Justices concur.