APPEAL AND ERROR — Dismissal — Service of Summons — Necessity. 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 is filed, and no summons issued or general appearance made within such time.
(Syllabus by the Court.)
DUNN, J.
On the 31st day of October, 1908, the district court of Comanche county overruled the motion of counsel for plaintiff in error for a new trial, and rendered a judgment in favor of defendant in error. Exception was saved thereto, and time given within which to make, serve, and have signed and settled a case-made for appeal to this court. October 30, 1909, the petition of plaintiff in error with case-made attached was filed in the office of the clerk of this court. December 11, 1909, counsel for defendant in error filed their motion to dismiss the proceeding, for the reason, among others, that no summons in error had been issued or served, nor acknowledgment nor waiver thereof, nor was any pr æcipe for summons in error filed within one year of the date of the rendition of final judgment. An inspection of the record does not disclose that any of these things had been done to the date of the filing of said motion, and that the averments contained therein are true. This court and its predecessor have had occasion in a number of cases to pass upon this proposition, and it has been uniformly held 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 æcipe for the same filed, and no summons issued or general appearance made within such time." ( Chicago, R.I. P. Ry. Co. v. Bradham, 24 Okla. 250, 103 P. 591.)
See, also, McMurtry v. Byrd et al., 23 Okla. 597, 101 P. 1117; Court of Honor v. Wallace, 23 Okla. 734, 102 P. 111; 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.
All the Justices concur.