Court of Honor v. Wallace

• Decision Date: 12 May 1909
• Citation: 102 P. 111,23 Okla. 734,1909 OK 89
• Parties: COURT OF HONOR v. WALLACE et al.
• Court: Oklahoma Supreme Court

102 P. 111

23 Okla. 734, 1909 OK 89

COURT OF HONOR v. WALLACE et al.

Supreme Court of Oklahoma

May 12, 1909

Syllabus by the Court.

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 præcipe for the same filed and no summons issued or general appearance made, within such time.

Error from District Court, Logan County; A. H. Houston, Judge.

Action by Mary M. Wallace and another against the Court of Honor. Judgment for plaintiffs, and defendant brings error. Plaintiffs move to dismiss the petition in error. Motion sustained.

F. C Hunt, for plaintiff in error.

Hainer & Martin and Tibbets & Green, for defendants in error.

DUNN J.

On February 26, 1908, a judgment was rendered in the above-entitled cause in favor of defendants in error, and on the same day a motion for new trial was filed and overruled by the trial court, and plaintiff in error given 90 days in which to serve a case-made. The case-made was served on the 28th day of August, 1908, and on the same day signed and settled by the trial judge. The petition in error was filed in the Supreme Court February 20, 1909, but no præcipe for or issuance of summons in error, or waiver thereof, or general appearance of any kind made, until March 8, 1909, at which time plaintiff in error filed a præcipe and had issued a summons in error. Defendants in error move to dismiss the petition in error, for the reason that the court has no jurisdiction because of the fact that the proceeding in error was not commenced within one year from the date of the judgment and order of the district court overruling the motion of plaintiff in error for a new trial.

This motion must be sustained. This question was passed upon at this term of court in the case of McMurtry v. Byrd et al., 101 P. 1117, in which it is held: "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 praæcipe for the same filed, and no summons issued or general appearance made within such time." See, also, Walton et al. v. Williams et al., 5 0kl. 642, 49 P. 1022; Wedd v. Gates et al., 15 Okl. 602, 82 P. 808.

The petition is accordingly dismissed.

KANE C.J., and TURNER, WILLIA...