Coleman v. Eaton

Supreme Court of Oklahoma

Coleman v. Eaton

1910 OK 202, 110 P. 672, 26 Okla. 858, 1910 Okla. LEXIS 153

CourtSupreme Court of Oklahoma

DecidedJuly 12, 1910

Docket1039

StatusPublished

Cited by6 cases

This text of 1910 OK 202 (Coleman v. Eaton) 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

Coleman v. Eaton, 1910 OK 202, 110 P. 672, 26 Okla. 858, 1910 Okla. LEXIS 153 (Okla. 1910).

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Opinion

DUNN, C. J.

This case presents error from the county court of Kay county. Judgment was rendered on April 15, 1909, and a motion for new trial which was filed was denied April 17, 1909. A case-made was filed in this court August 24, 1909. Although more than one year has elapsed from the date of the overruling of *859 the motion for new trial, no waiver of issuance or service of summons in error has been had and no pracipe for the same filed *and no summons issued or general appearance made by defendant in error. May 10, 1910, counsel for defendant in error filed a motion in this court to dismiss this action for and on account of the foregoing matters. This motion must be sustained. This court has held in a number of cases—Chicago, Ro ck Island & Pacific Ry. Co. v. Bradham, 24 Okla. 250, 103 Pac. 591, McMurtry v. Byrd, 23 Okla. 597, 101 Pac. 1117, and Court of Honor v. Wallace, 23 Okla. 734, 102 Pac. 111—that “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.”

The action is dismissed.

All the Justices concur.

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DUNN, C. J.

This case presents error from the county court of Kay county. Judgment was rendered on April 15, 1909, and a motion for new trial which was filed was denied April 17, 1909. A case-made was filed in this court August 24, 1909. Although more than one year has elapsed from the date of the overruling of *859 the motion for new trial, no waiver of issuance or service of summons in error has been had and no pracipe for the same filed *and no summons issued or general appearance made by defendant in error. May 10, 1910, counsel for defendant in error filed a motion in this court to dismiss this action for and on account of the foregoing matters. This motion must be sustained. This court has held in a number of cases—Chicago, Ro ck Island & Pacific Ry. Co. v. Bradham, 24 Okla. 250, 103 Pac. 591, McMurtry v. Byrd, 23 Okla. 597, 101 Pac. 1117, and Court of Honor v. Wallace, 23 Okla. 734, 102 Pac. 111—that “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.”

The action is dismissed.

All the Justices concur.

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Bluebook (online)

1910 OK 202, 110 P. 672, 26 Okla. 858, 1910 Okla. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-eaton-okla-1910.

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