Schafer v. Remmers

This cause comes on to be heard upon a motion to dismiss the appeal filed by the defendants in error, upon the ground that the proceeding in error was not commenced in this court within the time limited by law. The motion to dismiss must be sustained. It seems that the petition in error and case-made were filed in due time, but no praecipe for summons in error or waiver of same was filed until after the expiration of the six months allowed by law within which a proceeding in error must be commenced. All of this is admitted by counsel for plaintiffs in error, but they contend that the issuance and service of summons in error was waived by one of the defendants in error who is united in interest with each of the other defendants in error, and therefore the action was commenced in time, and they cite First State Bank of Davidson v. Clingan et al.,26 Okla. 150, 109 P. 69, as an authority. We do not think that case is in point. It is true that one of the defendants in error in the instant case signed what purported to be a waiver of issuance and service of summons in error within the time limited for taking an appeal, but the same was not filed in the cause until a considerable time after the time for taking the appeal had expired. As the waiver was not filed until after the time for commencing a proceeding in error had expired, it was not sufficient to confer jurisdiction on the Supreme Court. The appeal is dismissed. All the Justices concur, except WILLIAMS, J., absent and not participating, and DUNN, J., who dissents.