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 *Page 490 and summons issued, unless the same be waived. McMurtry v. Byrdet 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.