ANDERSON v. McMAHON

ANDERSON v. McMAHON
1912 OK 510
125 P. 455
33 Okla. 377
Case Number: 3768
Decided: 07/23/1912
Supreme Court of Oklahoma

ANDERSON et al.
v.
McMAHON et al.

Syllabus

¶0 APPEAL AND ERROR--Time for Taking Proceedings--Service of Summons. 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 is had, and no praecipe for same filed, and no summons is issued or general appearance made within such time.

E. E. Gore, for plaintiffs in error.
P. K. Morrill and T. M. Robinson, for defendants in error.

HAYES, J.

¶1 The judgment from which this proceeding in error is prosecuted was rendered by the trial court on the 25th day of February, 1911, and the motion for a new trial was overruled on the 5th day of April, 1911. The petition in error and case-made were filed in this court on the 3d day of April, 1912, but no praecipe for summons in error was filed, no summons in error issued, and no entry of general appearance of defendants in error was made before the expiration of one year from the order overruling the motion for a new trial. No summons in error has ever been issued or served. On the 8th day of April, 1912, there was filed in this court a waiver of issuance and service of summons in error, signed by defendants in error. Under numerous decisions by this court that a petition in error will be dismissed, although filed within the year allowed by statute, if summons is not issued or waived, or a praecipe filed therefor, or general appearance made by the defendant in error within one year, this proceeding in error must be dismissed for want of jurisdiction. Hudson v. Lapsley et al., 29 Okla. 681, 119 P. 125; Manes v. Hoss, 28 Okla. 489, 114 P. 698; Coleman v. Eaton, 26 Okla. 858, 110 P. 672; Watson v. Rein et al., 26 Okla. 47, 108 P. 397; Court of Honor v. Wallace et al., 23 Okla. 734, 102 P. 111. After the year allowed by statute for commencement of the proceeding in error in this court expires, parties cannot by agreement confer jurisdiction upon the court. The motion to dismiss is sustained.

¶2 TURNER, C. J., and KANE and DUNN, JJ., concur; WILLIAMS, J., absent, and not participating.