Dill v. Sands

Defendant in error Roley Sands, on January 31, 1916, filed his motion to dismiss this proceeding in error, for the reason, among others, that no summons in error was served upon him, or any other defendant in error, either wthin six months from the date of the judgment appealed from, or within 60 days from the expiration thereof. The records of this court show that the case-made with petition in error attached, together with pr æcipe for summons in error, were received for filing October 12, 1915, the last day of the statutory time for filing the appeal; that summons issued October 13, 1915, to defendants in error, but that no return was made on same. And it appears from the motion of defendant in error Roley Sands that no summons has been served on him, which fact is not controverted by plaintiff in error.

This court has held that section 4659, Rev. Laws 1910, with regard to the commencement of actions, by analogy is applicable to the commencement of proceedings in error in this court, and that the summons must be served within 60 days after the expiration of the time for filing an appeal. School Dist. No.39 v. Fisher, 23 Okla. 9, 99 P. 646; Dr. Koch Vegetable TeaCo. v. Davis et al., 48 Okla. 14, 145 P. 337.

The record disclosing that defendant in error has not waived the service of summons in error, and it appearing that he was not served within 60 days from October 12, 1915, or at all, the motion to dismiss must be sustained. Coleman v. Eaton,26 Okla. 858, 110 P. 672; Hartsell v. Edwards et al., 29 Okla. 119,116 P. 942.

The action is dismissed.

All the Justices concur.