In Re Herod's Estate

1914 OK 19, 137 P. 1174, 40 Okla. 313, 1914 Okla. LEXIS 19

• Court: Supreme Court of Oklahoma
• Decided: January 13, 1914
• Docket: 5466
• Status: Published

Opinion

lOOFBOURROW, J.

In February, 1913, Wallace Herod filed a petition in the county court of Muskogee county, Okla., asking for the admission to- probate of a purported will of Amanda Herod, deceased. Georgia Smith, an heir at law of the decedent, and certain other heirs contested said will. Same was admitted to probate by the judge of the county court, and from his order and decree Georgia Smith and others appealed to the district court of said county. Judgment was entered by said district court in favor of contestants, finding and decreeing that said purported will of Amanda Herod was and is a forgery. From this judgment Wallace Herod, F. P. Mayes, and J. C. Johnson appeal to this court.

The defendants in error filed a motion to dismiss this appeal for the reason: Third:

“That summons in error has not been served upon Georgia Smith within 60 days after the issuance of said summons in error and the expiration of the statutory .period for commencing the proceeding in error in this court.”

The record shows that Georgia Smith is a necessary party defendant, but no summons in error has been served upon her, nor has 'she waived service of the same. The petition in error and case-made were filed in this court on August 13, 1913, the last day.of the statutory period for perfecting the appeal from the judgment sought to be reversed.

Upon the authority of School District No. 39, Kiowa County, v. Fisher, 23 Okla. 9, 99 Pac. 646; Wedd v. Gates et al., 15 Okla. 602, 82 Pac. 808; Durant et al. v. Munford, 38 Okla. 552, 134 Pac. 50, this appeal must be dismissed.

All the Justices concur.