Watkins v. Barnwell

WILLIAMS, J. On October 11, 1912, the plaintiffs in error filed their petition in error with case-made attached with the clerk of this court. According to the records of the clerk’s office, plaintiffs in error have not filed any praecipe for the issuance of summons in error, neither has any waiver of the issuance of such summons nor any appearance in any way been made. The motion for a new trial was overruled on April 27, 1912. This proceeding in error should have been commenced within six months ' from that date. Holcombe v. Lawyers’ Co-Op. Pub. Co., post; Grant v. Creed et al., ante, 128 Pac. 511. A petition in error must be dismissed on motion, even though the same is filed in this court within the six months allowed under the statute, where no waiver of issuance and service of summons in error is had, and no praecipe for the same filed and summons issued thereon, or general appearance made within such statutory period. Hudson v. Lapsley et al., 29 Okla. 681, 119 Pac. 125; Simmons v. Lauffer, 29 Okla. 132, 116 Pac. 943; Hartsell v. Edwards et al., 29 Okla. 119, 116 Pac. 942; Coleman v. Eaton, 26 Okla. 858, 110 Pac. 672; Chicago, R. I. & P. Ry. Co. v. Bradham, 24 Okla. 250, 103 Pac. 591; Court of Honor v. Wallace et al., 23 Okla. 734, 102 Pac. 111; McMurtry v. Byrd et al., 23 Okla. 597, 101 Pac. 1117; Clark v. Drake, 33 Okla. 525, 126 Pac. 232. The motion of the defendant in error for said proceeding in error to be dismissed must be sustained. All the Justices concur.