School Dist. No. 39, Kiowa County v. Fisher

• Decision Date: 13 January 1909
• Citation: 99 P. 646,23 Okla. 9,1909 OK 10
• Parties: SCHOOL DIST. NO. 39, KIOWA COUNTY, v. FISHER, County Treasurer (FIRST NAT. BANK OF HOBART, Intervener).
• Court: Oklahoma Supreme Court

99 P. 646

23 Okla. 9, 1909 OK 10

SCHOOL DIST. NO. 39, KIOWA COUNTY, v. FISHER, County Treasurer (FIRST NAT. BANK OF HOBART, Intervener).

Supreme Court of Oklahoma

January 13, 1909

Syllabus by the Court.

A petition in error was filed and summons in error issued two days before the expiration of one year after the rendition of the judgment appealed from. The service of the summons in error which was served after the expiration of said period of one year was quashed. An alias summons was not issued and served until after the expiration of 60 days after the issuance of the first summons. Held, that the proceeding was not commenced within one year from the date of the rendition of the judgment appealed from, as required by section 4748, Wilson's Rev. & Ann. St. 1903.

[Ed Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1915-1919; Dec. Dig. § 351. ^[*]]

Error from District Court, Kiowa County; F. E. Gillette, Judge.

Action by School District No. 39, Kiowa County, against C. H Fisher, Treasurer of School District No. 39. The First National Bank of Hobart intervenes. Judgment for defendant and plaintiff brings error. Dismissed.

The petition in error in this case was filed in this court on November 7, 1907, and summons in error was issued on the same day. Return of service of the summons was made on the 13th day of the same month. On April 23, 1908, motion to quash the service of the summons was filed by defendant in error the First National Bank of Hobart, which was sustained by this court on September 8, 1908. On September 12, 1908, an alias summons in error was issued, which was served and returned on the 21st day of the same month. The First National Bank of Hobart, defendant in error, has filed its motion to quash this alias summons, and the service thereon, on the ground that the proceeding was not begun in this court within one year from the date of the judgment which plaintiff in error seeks to have reviewed. The judgment complained of in the petition in error was rendered in the trial court on the 9th day of November, 1906.

John T Hayes, for plaintiff in error.

L. M. Keys, for defendant in error First Nat. Bank.

HAYES J.

Section 4748 of Wilson's Revised and Annotated Statutes of Oklahoma of 1903, being section 550 of the Code, provides: "No proceeding for reversing, vacating or modifying judgments or final orders shall be commenced unless within one year after the rendition of the judgment or making of the final order complained of. ***" Under this section of the Code, unless the proceeding is commenced in this court within one year after the rendition of the judgment or order which is sought by plaintiff in error to have reviewed, this court is without jurisdiction to review the same. Ryland v. Coyle, 7 Okl. 226, 54 P. 456; Hoffman v. Board of Commissioners, 8 Okl. 225, 57 P. 167; Wedd v. Gates et al., 15 Okl. 602, 82 P. 808; Hebeison v. Hatchell, 17 Okl. 260, 87 P. 643. The determination of the question presented by the motion in the case at bar requires us to determine when a proceeding is commenced in this court within the meaning of the language of section 4748, supra. The answer to this question involves the construction of the language of said section; but the duty of first construing this section does not fall upon this court, for this section of the statute is a part of the General Code adopted from the state of Kansas by the territory of Oklahoma, and it had been construed by the Supreme Court of that state prior to its adoption by the territorial Legislature. The statute does not define what shall constitute a commencement of a proceeding within the terms of this section. Section 20 of the Code (section 4218, Wilson's Rev. & Ann. St. 1903) provides that: "An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him or on a codefendant who is a joint contractor or otherwise united in interest with him. *** An attempt to commence an action shall be deemed equivalent to the commencement thereof, within the meaning of this article, when the party faithfully, properly and diligently endeavors to procure a service; but such attempt must be followed by the first publication or service of the summons within sixty days."

This section of our Code is the same as section 20 of the Kansas Code, and is also the same as was section 20 of the Ohio Code at one time. It constitutes part of the statute of limitations and refers to the commencement of civil actions in the trial court. The section defines when an action shall be deemed commenced only within the meaning of the article of which it forms a part; but the Supreme Court of Ohio, in Buckingham v. Commercial Bank, 21 Ohio St. 131, held that this section of the statute of that state afforded by analogy a rule to govern proceedings in error. The Supreme Court of Kansas, in Thompson et al. v. Wheeler & Wilson Manufacturing Co., 29 Kan. 476, adopted the holding of the Supreme Court of Ohio in Buckingham v. Commercial Bank, and upon facts very similar to the facts in this case concludes the discussion of the question now under consideration in the following language: ...