Opinion
No. 2195
Opinion Filed March 21, 1911.
1. APPEAL AND ERROR — Dismissal — Summons in Error — Time. A petition in error, although filed in this court within one year from the rendition of the judgment appealed from, will be dismissed, where no summons in error was issued or praecipe filed therefor within said time, and where there was no waiver of issuance and service of summons in error.
2. APPEAL AND ERROR — Motion for New Trial — Necessity. A motion for a new trial is unnecessary to enable this court to review the action of a trial court in rendering judgment upon the pleadings.
3. APPEAL AND ERROR — Transfer of Cause — Time. Where the judgment appealed from is rendered upon the pleadings, the time from which to perfect the appeal commences with the rendition of the judgment, and not from the order of the court overruling a motion for a new trial.
(Syllabus by the Court.)
Error from District Court, Tulsa County; L. M. Poe, Judge.
Action between W. H. Manes and Raymond Hoss. From the judgment, Manes brings error. Dismissed.
Nelson League, for plaintiff in error.
Wrightsman, Bush Johnson, for defendant in error.
Judgment was rendered in the court below on December 18, 1909. Petition in error and case-made were filed in this court on the 17th day of December, 1910. There was no waiver of summons, and no pr æcipe therefor was filed and issuance of summons had until the 21st day of December, 1910. The judgment in the court below was upon the pleadings. Not only must a petition in error and case-made or transcript be filed in this court within one year from the rendition of the judgment appealed from (section 6082, Snyder's Comp. Laws of Okla. 1909), but there must be filed within said time a pr æcipe for summons and summons issued, unless the same be waived. McMurtry v. Byrd et al., 23 Okla. 597, 101 P. 1117; C., R.I. P. Ry. Co. v. Bradham, 24 Okla. 205, 103 P. 591.
A motion for a new trial is unnecessary to enable this court to review the action of a trial court in rendering a judgment upon the pleadings ( Burdett et al. v. Burdett et al., 26 Okla. 416, 109 P. 922), and where a motion for a new trial is unnecessary to present for review to this court the matters complained of in the petition in error, the filing of such motion and decision thereon by the court is ineffectual for the purpose of extending the time within which to perfect an appeal; and the time begins to run from the rendition of the judgment appealed from, and not from the order overruling the motion for a new trial. Springfield Fire M. Ins. Co. v. Gish, Brook Co., 23 Okla. 824, 102 P. 708.
The motion to dismiss is sustained.
All the Justices concur.