Anderson v. McMahon

The judgment from which this proceeding in error is prosecuted was rendered by the trial court on the 25th day of February, 1911, and the motion for a new trial was overruled on the 5th day of April, 1911. The petition in error and case-made were filed in this court on the 3d day of April, 1912, but no praecipe for summons in error was filed, no summons in error issued, and no entry of general appearance of defendants in error was made before the expiration of one year from the order overruling the motion for a new trial. No summons in error has ever been issued or served. On the 8th day of April, 1912, there was filed in this court a waiver of issuance and service of summons in error, signed by defendants in error. Under numerous decisions by this court that a petition in error will be dismissed, although filed within the year allowed by statute, if summons is not issued or waived, or a praecipe filed therefor, or general appearance made by the defendant in error within one year, this proceeding in error must be dismissed for want of jurisdiction. Hudson v. Lapsley et al.,29 Okla. 681, 119 P. 125; Manes v. Hoss, 28 Okla. 489,114 P. 698; Coleman v. Eaton, 26 Okla. 858, 110 P. 672; Watsonv. Rein et al., 26 Okla. 47, 108 P. 397; Court of Honor v.Wallace et al., 23 Okla. 734, 102 P. 111. After the year allowed by statute for commencement of the proceeding in error in this court expires, parties cannot by agreement confer jurisdiction upon the court.

The motion to dismiss is sustained.

TURNER, C. J., and KANE and DUNN, JJ., concur; WILLIAMS, J., absent, and not participating.