CLARK v. DRAKE

CLARK v. DRAKE
1912 OK 338
126 P. 232
33 Okla. 525
Case Number: 3351
Decided: 05/14/1912
Supreme Court of Oklahoma

CLARK
v.
DRAKE.

Syllabus

¶0 APPEAL AND ERROR--Dismissal--Failure to Serve Summons. A petition in error, with case-made attached, filed in this court within the year allowed under the statute, will be dismissed on motion, where there is neither waiver of service, nor issuance of summons in error, nor praecipe for summons in error filed, nor general appearance made within such time.

Error from Superior Court, Custer County; J. W. Lawter, Judge.

Action between H. H. Clark and D. A. Drake. From the judgment, Clark brings error. Writ of error dismissed.

Geo. T. Webster, for plaintiff in error.
Jones & Linville, for defendant in error.

WILLIAMS, J.

¶1 On March 16, 1911, judgment was rendered in favor of the defendant in error. On the same day motion for new trial was filed, and on May 1, 1911, said motion was overruled. Motion is now made by the defendant in error to dismiss the proceeding in error in this court, on the ground that the same was not commenced within one year from the date of the overruling of said motion for a new trial. Neither has any summons in error been issued, nor any praecipe for summons in error been filed with the clerk of this court, nor has any waiver of the issuance of such summons in error been made, nor any appearance entered on the part of the defendant in error.

¶2 The motion is sustained. Coleman v. Eaton, 26 Okla. 858, 110 P. 672; Hartsell v. Edwards, 29 Okla. 119, 116 P. 942; Simmons v. Lauffer, 29 Okla. 132, 116 P. 943.

¶3 TURNER, C. J., and HAYES, KANE, and DUNN, JJ., concur.