Watson v. Rein

108 P. 397 | Okla. | 1910

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 pr æcipe 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 pr æcipe filed in this court nor any summons in error issued within one year from the date of the judgment sought to be reviewed.

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 pr æcipe 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. Yarnellet al., 24 Okla. 525, 103 P. 698; School Dist No. 39 KiowaCounty, v. Fisher, County Treasurer (First Nat. Bank of Hobart,Intervener), 23 Okla. 9, 99 P. 646.

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.

All the Justices concur.