Brakel v. Scott

Supreme Court of Oklahoma

Brakel v. Scott

1916 OK 236, 155 P. 1124, 53 Okla. 157, 1916 Okla. LEXIS 380

CourtSupreme Court of Oklahoma

DecidedFebruary 29, 1916

Docket7968

StatusPublished

Cited by1 cases

This text of 1916 OK 236 (Brakel v. Scott) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brakel v. Scott, 1916 OK 236, 155 P. 1124, 53 Okla. 157, 1916 Okla. LEXIS 380 (Okla. 1916).

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Opinion

HARDY, J.

This case is presented on motion -to dismiss. There are several grounds for dismissal assigned in the motion which appear to be well taken. The only-ground necessary to consider is the first, that the petition in error herein was not filed in this court and summons in error issued -thereon within six months from the date of the final order appealed from.' Motion for new trial was overruled June 19, 1915, and petition in error, with case-made attached, was filed in the oifice of the clerk of this court December 20, 1915. December 19th being Sunday, it is conceded by counsel that filing same on the 20th would be within time. Prsecipe for summons in error was *158 not filed until January 14, 1916, and summons in error issued on said date and was returned January 24th, not served; and no waiver of same has been filed nor general appearance entered herein. In McMurtry v. Byrd et al., 23 Okla. 597, 101 Pac. 1117, it was said:

“A petition in error will be dismissed on motion, even though the same is filed in this court within the year 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 no summons issued or general appearance made, within such time.” C., R. I. & P. Ry. Co. v. Bradham, 24 Okla. 250, 103 Pac. 591; Watkins v. Barnwell, 35 Okla. 205, 128 Pac. 511.

The motion is sustained and the cause dismissed.

All the Justices concur.

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HARDY, J.

This case is presented on motion -to dismiss. There are several grounds for dismissal assigned in the motion which appear to be well taken. The only-ground necessary to consider is the first, that the petition in error herein was not filed in this court and summons in error issued -thereon within six months from the date of the final order appealed from.' Motion for new trial was overruled June 19, 1915, and petition in error, with case-made attached, was filed in the oifice of the clerk of this court December 20, 1915. December 19th being Sunday, it is conceded by counsel that filing same on the 20th would be within time. Prsecipe for summons in error was *158 not filed until January 14, 1916, and summons in error issued on said date and was returned January 24th, not served; and no waiver of same has been filed nor general appearance entered herein. In McMurtry v. Byrd et al., 23 Okla. 597, 101 Pac. 1117, it was said:

“A petition in error will be dismissed on motion, even though the same is filed in this court within the year 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 no summons issued or general appearance made, within such time.” C., R. I. & P. Ry. Co. v. Bradham, 24 Okla. 250, 103 Pac. 591; Watkins v. Barnwell, 35 Okla. 205, 128 Pac. 511.

The motion is sustained and the cause dismissed.

All the Justices concur.

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Bluebook (online)

1916 OK 236, 155 P. 1124, 53 Okla. 157, 1916 Okla. LEXIS 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brakel-v-scott-okla-1916.

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