Opinion
No. 795
Opinion Filed July 13, 1909.
APPEAL AND ERROR — Writ of Error — Dismissal — Service of Summons. 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 praecipe for the same filed, and no summons issued, or general appearance made within such time.
(Syllabus by the Court.)
Error from District Court, Garfield County; P. C. Simons, Judge Pro Tem.
Action by D. M. Bradham against the Chicago, Rock Island Pacific Railway Company. Judgment for plaintiff, and defendant brings error. Dismissed.
C. O. Blake, H. B. Low, and Robberts Curran, for plaintiff in error.
Dodson Glasser, for defendant in error.
On April 16, 1908, a judgment was rendered in the above-entitled case in favor of defendant in error. April 17, 1908, plaintiff in error filed its motion for a new trial. May 14, 1908, the motion for new trial, coming on for hearing, was by the court overruled, to which the plaintiff in error saved its exceptions, and time was given within which to make, serve and have signed and settled a case-made for appeal to the Supreme Court. In due season these proceedings were had, and the petition in error with the case-made attached were on the 21st day of April, 1909, lodged in the office of the clerk of the Supreme Court. June 7, 1909, counsel for defendant in error filed a motion to dismiss the petition in error and the proceeding pending in this court, for the reason that up to the date of the filing of the said motion plaintiff in error had not procured or had issued, and served, a summons in error against the defendant in error or his attorney of record or procured and filed a waiver of issuance of and the service of such summons in error upon the defendant in error or his attorney, or at any other time within a year from the date of the judgment rendered in the cause or the date of the overruling of the motion for new trial, and that therefor this court has no jurisdiction to examine the alleged errors.
This motion must be sustained. An inspection of the record herein shows that the averments of the motion are true, that there was neither a waiver, issuance, or service of summons in error, nor was any pr æcipe for the sume filed, nor did defendant in error in any manner make a general appearance within the year, as provided for under article 22, c. 66, Wilson's Rev. Ann. St. 1903. This court, in an opinion delivered at the May term, 1909, entitled Court of Honor v. Wallace et al. 23 Okla. 734, 102 P. 111, held in the syllabus as follows:
"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 æcipe for the same filed, and no summons issued, or general appearance made within such time."
To the same effect, see, also, McMurtry v. Byrd et al. (decided May term, 1909), 23 Okla. 597, 101 P. 1117; Walton et al. v. Williams et al., 5 Okla. 642, 49 P. 1022; Wedd v. Gates et al., 15 Okla. 602, 82 P. 808.
The petition in error is, accordingly, dismissed.
Hayes, Turner, and Williams, JJ., concur; Kane, C. J., absent and not sitting.