Opinion
No. 4931
Opinion Filed July 22, 1913.
APPEAL AND ERROR — Dismissal — Service of Summons. A petition in error was filed on the last day of the statutory period for commencing a proceeding in error, and on the same date, a summons in error was issued, but service thereof was not had within 60 days after the issuance of the same. Held, that the proceeding was not commenced within the period required by the statute, and that the same should be dismissed.
(Syllabus by the Court.)
Error from Superior Court, Grady County; Will Linn, Judge.
Action between Gibbie Durant and others and D. W. Munford. From the judgment, Durant and others bring error. Dismissed.
J. E. Whitehead, for plaintiffs in error.
Bond Melton, for defendant in error.
A petition in error and case-made was filed in this cause on the last day of the statutory period for perfecting appeal from the judgment sought to be reversed. On the same day a summons in error was issued; but it does not appear that this summons in error, or any alias summons, was ever served upon defendant in error within 60 days after the issuance of said summons in error and the expiration of the statutory period for commencing a proceeding in error in this court. In fact it does not appear that any service of summons has ever been had upon defendant in error. Upon the authority of School Dist. No. 39, Kiowa County, v. Fisher, 23 Okla. 9, 99 P. 646, and Wedd v. Gates et al., 15 Okla. 602, 82 P. 808, the cause should be dismissed.
All the Justices concur, except DUNN, J., absent and not participating.