summons error in Oklahoma

1918And under the precise conditions involved in this case in Buckner v. Walton Trust Co., 67 Okla. 55 , 168 Pac. 797 , the court held that, w the absence of a summons in error, an appeal taken from a judgment rendered January 4, 1917, could ‘not be deemed to have been commenced in this court so as to give the Supreme Court, jurisdiction of the appeal." “Hence, since the law in force at the time the order appealed from has not been complied with, and the 1917 act is not retroactive, the appeal must be dismissed.” In J.

1918And under the precise conditions involved in this case in Buckner v. Walton Trust Co., 67 Okla. 55 , 168 Pac. 797 , the court held that, w the absence of a summons in error, an appeal taken from a judgment rendered January 4, 1917, could ‘not be deemed to have been commenced in this court so as to give the Supreme Court, jurisdiction of the appeal." “Hence, since the law in force at the time the order appealed from has not been complied with, and the 1917 act is not retroactive, the appeal must be dismissed.” In J.

1910IJnder these circumstances, it is' clear they were and are united in interest, and this proceeding must be deemed to have been commenced against all the defendants within the year by the acceptance of service by one of the eodefend-ants. *152 Counsel for defendant in error Whelchel, in support of their motion to dismiss, contend that, if the petition in error is filed on the last day of the year allowed, then the summons in error must be served upon all the defendants in error within 6 days after, and that the case of Wedd v. Gates, 15 Okla., 602 , 82 Pac. 808 , specifically so holds.

1909See School District No. 39 v. Fisher, 23 Okla. 9 , 99 Pac. 646 ; Court of Honor v. Wallace et al., 23 Okla. 734 , 102 Pac. 111 ; McMurtry v. Byrd et al., 23 Okla. 597 , 101 Pac. 1117 ; and Divine v. Harmon et al., 23 Okla. 901 , 101 Pac. 1125 ; Hebeison v. Hatchell, 17 Okla. 260 , 87 Pac. 643 ; Wedd v. Gates et al., 15 Okla. 602 , 82 Pac. 808 ; Hoffman v. Board of Commissioners, 8 Okla. 225 , 57 Pac. 167 ; Ryland v. Coyle, 7 Okla. 226 , 54 Pac. 456 ; Keokuk Falls Improvement Co. v. Beale, 4 Okla. 712 , 47 Pac. 481 ; Blanchard v. United States, 6 Okla. 587 , 52 Pac. 736 ; Vandervoort v. Board o

1910IJnder these circumstances, it is' clear they were and are united in interest, and this proceeding must be deemed to have been commenced against all the defendants within the year by the acceptance of service by one of the eodefend-ants. *152 Counsel for defendant in error Whelchel, in support of their motion to dismiss, contend that, if the petition in error is filed on the last day of the year allowed, then the summons in error must be served upon all the defendants in error within 6 days after, and that the case of Wedd v. Gates, 15 Okla., 602 , 82 Pac. 808 , specifically so holds.

1909See School District No. 39 v. Fisher, 23 Okla. 9 , 99 Pac. 646 ; Court of Honor v. Wallace et al., 23 Okla. 734 , 102 Pac. 111 ; McMurtry v. Byrd et al., 23 Okla. 597 , 101 Pac. 1117 ; and Divine v. Harmon et al., 23 Okla. 901 , 101 Pac. 1125 ; Hebeison v. Hatchell, 17 Okla. 260 , 87 Pac. 643 ; Wedd v. Gates et al., 15 Okla. 602 , 82 Pac. 808 ; Hoffman v. Board of Commissioners, 8 Okla. 225 , 57 Pac. 167 ; Ryland v. Coyle, 7 Okla. 226 , 54 Pac. 456 ; Keokuk Falls Improvement Co. v. Beale, 4 Okla. 712 , 47 Pac. 481 ; Blanchard v. United States, 6 Okla. 587 , 52 Pac. 736 ; Vandervoort v. Board o

1909Freeman v. Clay et al., 48 Fed. 849 , 1 C.

1909Freeman v. Clay et al., 48 Fed. 849 , 1 C.

1965Render v. Henry Schafer, Inc., 198 Okl. 95 , 175 P.2d 330, 331 ; Nixon et al. v. General Explosive Co., 89 Okl. 184 , 214 P. 911, 912 ; Hill v. McCleery, 141 Okl. 205 , 284 P. 646 ; Oliver v. Kelly, 129 Okl. 121 , 263 P. 649 ; Miller & Glass et al. v. Tulsa Tribune Co., 174 Okl. 80 , 49 P.2d 726, 728 ; Wheeler et al. v. Exchange Nat.

1965Render v. Henry Schafer, Inc., 198 Okl. 95 , 175 P.2d 330, 331 ; Nixon et al. v. General Explosive Co., 89 Okl. 184 , 214 P. 911, 912 ; Hill v. McCleery, 141 Okl. 205 , 284 P. 646 ; Oliver v. Kelly, 129 Okl. 121 , 263 P. 649 ; Miller & Glass et al. v. Tulsa Tribune Co., 174 Okl. 80 , 49 P.2d 726, 728 ; Wheeler et al. v. Exchange Nat.

1965Therefore,, there is no statutory authority for serving the guardian alone, at the commencement of an action; and it fol *306 lows that none exists, where the summons is in error. * * * ” See also Tanner v. Schultz, 97 Okl. 132 , 223 P. 174 ; Bolling v. Campbell, 36 Okl. 671 , 128 P. 1091 ; and Condit v. Condit, 66 Okl. 215 , 168 P. 456 .

1965Therefore,, there is no statutory authority for serving the guardian alone, at the commencement of an action; and it fol *306 lows that none exists, where the summons is in error. * * * ” See also Tanner v. Schultz, 97 Okl. 132 , 223 P. 174 ; Bolling v. Campbell, 36 Okl. 671 , 128 P. 1091 ; and Condit v. Condit, 66 Okl. 215 , 168 P. 456 .

1965Therefore,, there is no statutory authority for serving the guardian alone, at the commencement of an action; and it fol *306 lows that none exists, where the summons is in error. * * * ” See also Tanner v. Schultz, 97 Okl. 132 , 223 P. 174 ; Bolling v. Campbell, 36 Okl. 671 , 128 P. 1091 ; and Condit v. Condit, 66 Okl. 215 , 168 P. 456 .

1965Therefore,, there is no statutory authority for serving the guardian alone, at the commencement of an action; and it fol *306 lows that none exists, where the summons is in error. * * * ” See also Tanner v. Schultz, 97 Okl. 132 , 223 P. 174 ; Bolling v. Campbell, 36 Okl. 671 , 128 P. 1091 ; and Condit v. Condit, 66 Okl. 215 , 168 P. 456 .

1965Render v. Henry Schafer, Inc., 198 Okl. 95 , 175 P.2d 330, 331 ; Nixon et al. v. General Explosive Co., 89 Okl. 184 , 214 P. 911, 912 ; Hill v. McCleery, 141 Okl. 205 , 284 P. 646 ; Oliver v. Kelly, 129 Okl. 121 , 263 P. 649 ; Miller & Glass et al. v. Tulsa Tribune Co., 174 Okl. 80 , 49 P.2d 726, 728 ; Wheeler et al. v. Exchange Nat.

1965Render v. Henry Schafer, Inc., 198 Okl. 95 , 175 P.2d 330, 331 ; Nixon et al. v. General Explosive Co., 89 Okl. 184 , 214 P. 911, 912 ; Hill v. McCleery, 141 Okl. 205 , 284 P. 646 ; Oliver v. Kelly, 129 Okl. 121 , 263 P. 649 ; Miller & Glass et al. v. Tulsa Tribune Co., 174 Okl. 80 , 49 P.2d 726, 728 ; Wheeler et al. v. Exchange Nat.

1965Render v. Henry Schafer, Inc., 198 Okl. 95 , 175 P.2d 330, 331 ; Nixon et al. v. General Explosive Co., 89 Okl. 184 , 214 P. 911, 912 ; Hill v. McCleery, 141 Okl. 205 , 284 P. 646 ; Oliver v. Kelly, 129 Okl. 121 , 263 P. 649 ; Miller & Glass et al. v. Tulsa Tribune Co., 174 Okl. 80 , 49 P.2d 726, 728 ; Wheeler et al. v. Exchange Nat.

1965Render v. Henry Schafer, Inc., 198 Okl. 95 , 175 P.2d 330, 331 ; Nixon et al. v. General Explosive Co., 89 Okl. 184 , 214 P. 911, 912 ; Hill v. McCleery, 141 Okl. 205 , 284 P. 646 ; Oliver v. Kelly, 129 Okl. 121 , 263 P. 649 ; Miller & Glass et al. v. Tulsa Tribune Co., 174 Okl. 80 , 49 P.2d 726, 728 ; Wheeler et al. v. Exchange Nat.

1965Render v. Henry Schafer, Inc., 198 Okl. 95 , 175 P.2d 330, 331 ; Nixon et al. v. General Explosive Co., 89 Okl. 184 , 214 P. 911, 912 ; Hill v. McCleery, 141 Okl. 205 , 284 P. 646 ; Oliver v. Kelly, 129 Okl. 121 , 263 P. 649 ; Miller & Glass et al. v. Tulsa Tribune Co., 174 Okl. 80 , 49 P.2d 726, 728 ; Wheeler et al. v. Exchange Nat.

1965Render v. Henry Schafer, Inc., 198 Okl. 95 , 175 P.2d 330, 331 ; Nixon et al. v. General Explosive Co., 89 Okl. 184 , 214 P. 911, 912 ; Hill v. McCleery, 141 Okl. 205 , 284 P. 646 ; Oliver v. Kelly, 129 Okl. 121 , 263 P. 649 ; Miller & Glass et al. v. Tulsa Tribune Co., 174 Okl. 80 , 49 P.2d 726, 728 ; Wheeler et al. v. Exchange Nat.

1965Render v. Henry Schafer, Inc., 198 Okl. 95 , 175 P.2d 330, 331 ; Nixon et al. v. General Explosive Co., 89 Okl. 184 , 214 P. 911, 912 ; Hill v. McCleery, 141 Okl. 205 , 284 P. 646 ; Oliver v. Kelly, 129 Okl. 121 , 263 P. 649 ; Miller & Glass et al. v. Tulsa Tribune Co., 174 Okl. 80 , 49 P.2d 726, 728 ; Wheeler et al. v. Exchange Nat.

1965Render v. Henry Schafer, Inc., 198 Okl. 95 , 175 P.2d 330, 331 ; Nixon et al. v. General Explosive Co., 89 Okl. 184 , 214 P. 911, 912 ; Hill v. McCleery, 141 Okl. 205 , 284 P. 646 ; Oliver v. Kelly, 129 Okl. 121 , 263 P. 649 ; Miller & Glass et al. v. Tulsa Tribune Co., 174 Okl. 80 , 49 P.2d 726, 728 ; Wheeler et al. v. Exchange Nat.

1965Therefore,, there is no statutory authority for serving the guardian alone, at the commencement of an action; and it fol *306 lows that none exists, where the summons is in error. * * * ” See also Tanner v. Schultz, 97 Okl. 132 , 223 P. 174 ; Bolling v. Campbell, 36 Okl. 671 , 128 P. 1091 ; and Condit v. Condit, 66 Okl. 215 , 168 P. 456 .

1965Therefore,, there is no statutory authority for serving the guardian alone, at the commencement of an action; and it fol *306 lows that none exists, where the summons is in error. * * * ” See also Tanner v. Schultz, 97 Okl. 132 , 223 P. 174 ; Bolling v. Campbell, 36 Okl. 671 , 128 P. 1091 ; and Condit v. Condit, 66 Okl. 215 , 168 P. 456 .

1940As was stated in the second syllabus in Lutke v. State, 37 Okla.

1940Cr. 18 , 255 P. 719 : “Where the notices of appeal required by statute have not been served, this defect may be cured by the service *365 of a summons in error upon the Attorney General or by securing a waiver thereof.” The motion to dismiss being without merit, the same is hereby overruled.

1937It approves the dase of Gans v. Beasley, 4 N. D. 140 , 59 N. W. 714 , wherein the court said: “ ‘From the instances given, it will be seen that nearly every possible defect in the form of a summons has been made the subject of an amendment, and that the only limit to the power to amend is that discretionary power vested in the court for the protection of the rights of the adverse party’.” In the case of Brandt Mercantile Co. v. Lang (Miss.) 56 So. 447 , the action whs brought by J.

1937It approves the dase of Gans v. Beasley, 4 N. D. 140 , 59 N. W. 714 , wherein the court said: “ ‘From the instances given, it will be seen that nearly every possible defect in the form of a summons has been made the subject of an amendment, and that the only limit to the power to amend is that discretionary power vested in the court for the protection of the rights of the adverse party’.” In the case of Brandt Mercantile Co. v. Lang (Miss.) 56 So. 447 , the action whs brought by J.

1937It approves the dase of Gans v. Beasley, 4 N. D. 140 , 59 N. W. 714 , wherein the court said: “ ‘From the instances given, it will be seen that nearly every possible defect in the form of a summons has been made the subject of an amendment, and that the only limit to the power to amend is that discretionary power vested in the court for the protection of the rights of the adverse party’.” In the case of Brandt Mercantile Co. v. Lang (Miss.) 56 So. 447 , the action whs brought by J.

1937Co. v. Gish, Brook & Co., 23 Okla. 824 , 102 P. 708 , the names of the parties in the summons in error were corrected to conform to the petition in error.

1937Co. v. Gish, Brook & Co., 23 Okla. 824 , 102 P. 708 , the names of the parties in the summons in error were corrected to conform to the petition in error.

1936In Ranney-Alton Mercantile Co. v. Hanes, 9 Okla. 471 , 60 P. 284 , it was held; “Where an appeal is taken from a decision of the district court, and it appears that the parties in whose favor judgment was rendered were in fact partners, and the property in controversy in the district court was partnership property, the service of the summons in error upon one partner perfects the appeal notwithstanding the p'eadings may be entitled in the individual names of the partners; and, in ease of the death of one of said partners pending the appeal to this court, it will not be necessary to make his pe

1936In Ranney-Alton Mercantile Co. v. Hanes, 9 Okla. 471 , 60 P. 284 , it was held; “Where an appeal is taken from a decision of the district court, and it appears that the parties in whose favor judgment was rendered were in fact partners, and the property in controversy in the district court was partnership property, the service of the summons in error upon one partner perfects the appeal notwithstanding the p'eadings may be entitled in the individual names of the partners; and, in ease of the death of one of said partners pending the appeal to this court, it will not be necessary to make his pe

1936In Ranney-Alton Mercantile Co. v. Hanes, 9 Okla. 471 , 60 P. 284 , it was held; “Where an appeal is taken from a decision of the district court, and it appears that the parties in whose favor judgment was rendered were in fact partners, and the property in controversy in the district court was partnership property, the service of the summons in error upon one partner perfects the appeal notwithstanding the p'eadings may be entitled in the individual names of the partners; and, in ease of the death of one of said partners pending the appeal to this court, it will not be necessary to make his pe

1936In Ranney-Alton Mercantile Co. v. Hanes, 9 Okla. 471 , 60 P. 284 , it was held; “Where an appeal is taken from a decision of the district court, and it appears that the parties in whose favor judgment was rendered were in fact partners, and the property in controversy in the district court was partnership property, the service of the summons in error upon one partner perfects the appeal notwithstanding the p'eadings may be entitled in the individual names of the partners; and, in ease of the death of one of said partners pending the appeal to this court, it will not be necessary to make his pe

1935In the case of State of Florida v. State of Georgia, 17 How. 478 , 15 L.

1935In the case of State of Florida v. State of Georgia, 17 How. 478 , 15 L.

1935But in Parker v. Hotchkiss (1849) 1 Wall.

1934Washington v. State, 32 Okla.

1923The writer in that case followed the principle stated in Hill v. Hill et al., 49 Okla. 424 , 152 Pac. 1122 , and the reasoning by analogy that the summons in error was for the purpose of acquiring jurisdiction of tne person of defendant in error on appeal like a summons' in acquiring jurisdiction of the person in commencing the original action, and could- be waived by acts of appearance in the same way.

1923The writer in that case followed the principle stated in Hill v. Hill et al., 49 Okla. 424 , 152 Pac. 1122 , and the reasoning by analogy that the summons in error was for the purpose of acquiring jurisdiction of tne person of defendant in error on appeal like a summons' in acquiring jurisdiction of the person in commencing the original action, and could- be waived by acts of appearance in the same way.

1923Co. v. Cleveland, 61 Okla. 64 . 160 Pac. 328 , this court held that a defendant in error, or his attorney, may waive in writing the issuance and service of a summons in error, and such waiver may be made at any time prior to the expiration of the time allowed for appeal.

1923Co. v. Cleveland, 61 Okla. 64 . 160 Pac. 328 , this court held that a defendant in error, or his attorney, may waive in writing the issuance and service of a summons in error, and such waiver may be made at any time prior to the expiration of the time allowed for appeal.

1923Laws, 1910, and it had the effect of reducing the petition in error from an original pleading and assignment of errors to “nothing more or less than the ordinary assignment of errors,” Mires v. Hogan, 79 Okla. 233 , 192 Pac. 811 .

1923Laws, 1910, and it had the effect of reducing the petition in error from an original pleading and assignment of errors to “nothing more or less than the ordinary assignment of errors,” Mires v. Hogan, 79 Okla. 233 , 192 Pac. 811 .

1921Cr. 413 , 137 Pac. 362 , held: “(a) Where the notices of appeal required by statute were served upon the county attorney and clerk of the court in which the judgment was rendered, an appeal will not be dismissed because a summons in error was not served or waived. "(b) Where the notices of appeal required by statute have not been served, this defect may be cured by the service of a summons in error upon the Attorney General, or by securing a waiver thereof.” In the body of the opinion in the latter case, it is held: “A motion was made to dismiss this appeal because a summons in error had not b

1918In Wlatkins et al. v. Barnwell, 35 Okla. 205 , 128 Pac. 511 , it is held: “A petition in error filed in this court within the six months allowed by the statutes, when neither waiver or issuance and service of summons filed and summons issued thereon, nor general appearance made within such statute period, must on motion be dismissed." In the case of Barber v. Honeywell, 67 Okla. 150 , 169 Pac. 489 , it is held: “This case is before'this court upon a motion to dismiss the petition in error.

1918In Wlatkins et al. v. Barnwell, 35 Okla. 205 , 128 Pac. 511 , it is held: “A petition in error filed in this court within the six months allowed by the statutes, when neither waiver or issuance and service of summons filed and summons issued thereon, nor general appearance made within such statute period, must on motion be dismissed." In the case of Barber v. Honeywell, 67 Okla. 150 , 169 Pac. 489 , it is held: “This case is before'this court upon a motion to dismiss the petition in error.

1918In Wlatkins et al. v. Barnwell, 35 Okla. 205 , 128 Pac. 511 , it is held: “A petition in error filed in this court within the six months allowed by the statutes, when neither waiver or issuance and service of summons filed and summons issued thereon, nor general appearance made within such statute period, must on motion be dismissed." In the case of Barber v. Honeywell, 67 Okla. 150 , 169 Pac. 489 , it is held: “This case is before'this court upon a motion to dismiss the petition in error.

1918In Wlatkins et al. v. Barnwell, 35 Okla. 205 , 128 Pac. 511 , it is held: “A petition in error filed in this court within the six months allowed by the statutes, when neither waiver or issuance and service of summons filed and summons issued thereon, nor general appearance made within such statute period, must on motion be dismissed." In the case of Barber v. Honeywell, 67 Okla. 150 , 169 Pac. 489 , it is held: “This case is before'this court upon a motion to dismiss the petition in error.

1917King v. Shults et al., 60 Okla. 218 , 159 Pac. 1106 .

1917King v. Shults et al., 60 Okla. 218 , 159 Pac. 1106 .