WATSON v. REIN

WATSON v. REIN
1910 OK 98
108 P. 397
26 Okla. 47
Case Number: 517
Decided: 03/08/1910
Supreme Court of Oklahoma

WATSON
v.
REIN et al.

Syllabus

¶0 APPEAL AND ERROR--Necessity of Summons--Dismissal. Where no summons in error is issued or praecipe filed therefor, and no general appearance is made by defendant in error within one year after the rendition of the judgment appealed from, a proceeding in error is not commenced within one year after the rendition of the judgment, as required by section 4748, Wilson's Rev. & Ann. St. 1903, although a petition in error and case-made have been filed within said period of one year, and the proceeding will be dismissed.

Error from District Court, Kay County; W. M. Bowles, Judge.

Action by Mabel C. Watson against Henry Rein and others. Judgment for defendants, and plaintiff brings error. Dismissed.

W. K. Moore and Moss & Turner, for plaintiff in error.
J. F. King and L. A. Maris, for defendants in error.

WILLIAMS, J.

¶1 The judgment sought to be appealed from in this case was rendered on the 3d day of December, 1907, in the district court of Kay county, state of Oklahoma. On the 27th day of November, 1908, the petition in error with case- made attached was filed in this court, but the praecipe for summons was not filed until the 7th day of January, A. D. 1909, on which date summons in error was issued. The defendants in error moved to dismiss this appeal on the ground that neither was any praecipe filed in this court nor any summons in error issued within one year from the date of the judgment sought to be reviewed.

¶2 In the case of Williams v. Paullin et al., 24 Okla. 694, 104 P. 342, it was held by this court that "where no summons in error is issued or praecipe filed therefor, and no general appearance is made by defendant in error within one year after the rendition of the judgment appealed from, a proceeding in error is not commenced within one year after the rendition of the judgment, as required by section 4748, Wilson's Rev. & Ann. St. 1903, although a petition in error and case-made have been filed within said period of one year, and the proceeding will be dismissed." See to the same effect, McMurtry v. Byrd et al., 23 Okla. 597, 101 P. 1117; Court of Honor v. Wallace et al., 23 Okla. 734, 102 P. 111. See, also, case of Kilgore v. Yarnell et al., 24 Okla. 525, 103 P. 698; School Dist No. 39 Kiowa County, v. Fisher, County Treasurer (First Nat. Bank of Hobart, Intervener), 23 Okla. 9, 99 P. 646.

¶3 It follows that this appeal was not commenced in such time after the rendition of the judgment for this court to acquire jurisdiction, and the same is accordingly dismissed.

¶4 All the Justices concur.