Brakel v. Scott , 53 Okla. 157 ( 1916 )

This case is presented on motion to dismiss. There are several grounds for dismissal assigned in the motion which appear to be well taken. The only ground necessary to consider is the first, that the petition in error herein was not filed in this court and summons in error issued thereon within six months from the date of the final order appealed from. Motion for new trial was overruled June 19, 1915, and petition in error, with case-made attached, was filed in the office of the clerk of this court December 20, 1915. December 19th being Sunday, it is conceded by counsel that filing same on the 20th would be within time. Pr æcipe for summons in error was not filed until January 14, 1916, and summons in error issued on said date and was returned January 24th, not served; and no waiver of same has been filed nor general appearance entered herein. In McMurtry v. Byrd et al., 23 Okla. 597,101 P. 1117, it was said:

"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." C., R.I. P. Ry. Co. v. Bradham, 24 Okla. 250,103 P. 591; Watkins v. Barnwell, 35 Okla. 205, 128 P. 511.

The motion is sustained and the cause dismissed.

All the Justices concur.