Weaver v. Watts

THACKER, J. The defendant in error moves and is entitled /to a dismissal of the petition in error in this case upon the ground that the appeal was not “commenced within six months from the rendition of the judgment complained of,” as required by section 44.52, Stat. 1893 *117 (section 5255, Rev. Laws 1910), as amended by act of February 14, 1911 (Laws 1910-11, p. 35). The judgment was rendered, and the order overruling the motion for new trial made on February 17, 1914. On August 15, 1914, which was only two days before the expiration of the statutory period within which a proceeding in error might have been commenced in this court, the petition in error, accompanied by two-thirds .of the amount required to. be deposited for costs, had been sent to and was received by the clerk of this court, who on the same day wrote the attorney for plaintiff in error advising him that he had received and was holding the same, and that Session Laws of 1913, sec. 7, c. 97, p. 163, required such deposit to be $15, and demanding the $5 deficiency as a condition precedent to filing the petition, with which demand the plaintiff in error did not comply until January 21, 1915, although the clerk had on December 28, 1914, and again on January 9, 1915, repeated his original notice and demand. There was no waiver or issuance and service of summons, or praecipe therefor, nor general appearance made within the statutory period for commencing a proceeding in error in this court. And, because of these facts, the petition in error would have to be dismissed on the motion made, even if the same had been filed within the statutory period, therefor, which was not done. Frazier v. Rocker, 48 Okla. 35, 149 Pac. 1181; Simmons v. Belvin, 48 Okla. 1, 148 Pac. 989; Braggs Mercantile Co. v. Richardson Dry Goods Co., 47 Okla. 124, 147 Pac. 1194; Rackliffe-Gibson Const. Co. v. Clingenpeel, 43 Okla. 181, 141 Pac. 964; Tupelo *118 Townsite Co. v. Cook, 43 Okla. 199, 141 Pac. 1167; Mc-Murtry v. Byrd, 23 Okla. 597, 101 Pac. 1117. The petition in error is dismissed. All the Justices concur.