Wahl v. White Sewing MacH. Co.

Supreme Court of Oklahoma

Wahl v. White Sewing MacH. Co.

1915 OK 136, 147 P. 301, 45 Okla. 805, 1915 Okla. LEXIS 565

CourtSupreme Court of Oklahoma

DecidedMarch 16, 1915

Docket6119

StatusPublished

Cited by2 cases

This text of 1915 OK 136 (Wahl v. White Sewing MacH. Co.) 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

Wahl v. White Sewing MacH. Co., 1915 OK 136, 147 P. 301, 45 Okla. 805, 1915 Okla. LEXIS 565 (Okla. 1915).

Pincite

Opinion

TURNER, J.

The final order appealed from in tliis case *806 was made on September 5, 1913. The petition in error was filed in this court on Friday, March 6, 1914. Praecipe was filed, and summons in error was issued on April 21, 1914, and returned, showing service April 24, 1914. Thereafter defendant in error filed his motion to dismiss, alleging as grounds therefor that the proceedings in error were not commenced within the statutory period of six months from the date of the rendition of the judgment complained of. The motion to dismiss was overruled, and on February 3, 1915, defendant in error files his second motion to dismiss. It appears that this court erred in refusing fo dismiss the appeal in the first instance for the reason that the record affirmatively shows that the plaintiff in error was one day late in filing his petition in error, but the appeal should also be dismissed on another ground. The summons in error was not issued or served within the statutory period. The general rule is that summons in error must. be issued and served within the statutory period of six months provided for perfecting appeals. There is a. well-defined exception to this rule, namely, that where summons in error has been issued within the six-month period, but service has not been obtained, the plaintiff in error may have 60 days from the issuance of the first summons in which to faithfully, properly, and diligently follow up- his -attempt to secure service. The ease at bar does not come within this exception, for here no- praecipe was filed or summons issued within the six-month period. We, therefore, must conclude that plaintiff in this action did not commence his proceeding within the statutory period. School Dist. No. 39, etc., v. Fisher, Treas., 23 Okla. 9, 99 Pac. 646; Durant v. Munford, 38 Okla. 552, 134 Pac. 50; Watkins v. Barnwell, 35 Okla. 205, 128 Pac. 511; Campbell v. Ruble, 40 Okla. 48, 135 Pac. 1050.

Dismissed.

All the Justices concur.

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TURNER, J.

The final order appealed from in tliis case *806 was made on September 5, 1913. The petition in error was filed in this court on Friday, March 6, 1914. Praecipe was filed, and summons in error was issued on April 21, 1914, and returned, showing service April 24, 1914. Thereafter defendant in error filed his motion to dismiss, alleging as grounds therefor that the proceedings in error were not commenced within the statutory period of six months from the date of the rendition of the judgment complained of. The motion to dismiss was overruled, and on February 3, 1915, defendant in error files his second motion to dismiss. It appears that this court erred in refusing fo dismiss the appeal in the first instance for the reason that the record affirmatively shows that the plaintiff in error was one day late in filing his petition in error, but the appeal should also be dismissed on another ground. The summons in error was not issued or served within the statutory period. The general rule is that summons in error must. be issued and served within the statutory period of six months provided for perfecting appeals. There is a. well-defined exception to this rule, namely, that where summons in error has been issued within the six-month period, but service has not been obtained, the plaintiff in error may have 60 days from the issuance of the first summons in which to faithfully, properly, and diligently follow up- his -attempt to secure service. The ease at bar does not come within this exception, for here no- praecipe was filed or summons issued within the six-month period. We, therefore, must conclude that plaintiff in this action did not commence his proceeding within the statutory period. School Dist. No. 39, etc., v. Fisher, Treas., 23 Okla. 9, 99 Pac. 646; Durant v. Munford, 38 Okla. 552, 134 Pac. 50; Watkins v. Barnwell, 35 Okla. 205, 128 Pac. 511; Campbell v. Ruble, 40 Okla. 48, 135 Pac. 1050.

Dismissed.

All the Justices concur.

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Bluebook (online)

1915 OK 136, 147 P. 301, 45 Okla. 805, 1915 Okla. LEXIS 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wahl-v-white-sewing-mach-co-okla-1915.

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