Manheim v. Fulton

BY THE COURT

Epitomized Opinion

This case was presented on motion to dismiss proceedings in error for want of service within the statutory time. The Deputy in the sheriff’s office made an affidavit that no summons was issued or served. The 70 day period for filing of petition in error had expired, as had also the 60 days allowed for service of summons. After the expiration of both periods an alias summons was issued and served. The Court of Appeals held:

When a petition in error was filed within 70 days and where a precipe for summons had been duly filed and there is a notation on the appearance docket of the Court of Appeals, 60 days for service is allowed. It is a burden upon the plaintiff in error, however, to see that summons is served with the 60 days. Although counsel of defendant in error has been presented with a petition in error, his refusal to waive summons could, in no way aid plaintiff in error in giving him jurisdiction over the defendant in error. Since Manheim had -failed to cause such service to be made in accordance with statute he has no jurisdiction in the Court of Appeals.

Motion for dismissal of petition in error sustained.