Merriett v. Newton

The defendants in error move to dismiss the appeal in this case, for the reason that no summons in error from the Supreme Court was issued and served as required by law.

The facts are: That the order overruling the motion for new trial was made and entered March 1, 1917. The plaintiffs in error at that time gave notice of appeal in open court, which would be sufficient under section 1, chapter 219, 1917 Session Laws. But that law did not become effective until March 23, 1917, or 22 days after the order appealed from was made. And it is the holding of this court that the right of appeal is governed by the provisions of the law applicable thereto at the time the judgment appealed from is rendered. Oklahoma Land Co. v. Thomas, 43 Okla. 217, 142 P. 801. And under the precise conditions involved in this case in Buckner v. Walton Trust Co., 67 Okla. ___, 168 P. 797, the court held that in the absence of a summons in error, an appeal taken from a judgment rendered January 4, 1917, could "not be deemed to have been commenced in this court so as to give the Supreme Court jurisdiction of the appeal."

Hence, since the law in force at the time the order appealed from has not been complied with, and the 1917 act is not retroactive, the appeal must be dismissed.

All the Justices concur.