The plaintiff in error, plaintiff below, sued the defendant in error, defendant below, *Page 753 in the district court of McClain county, where a demurrer was interposed to the petition and was sustained by the trial court. Plaintiff declined to plead further, and judgment was rendered dismissing plaintiff's petition, and he brings error.
The petition in error and transcript were filed in this court April 9, 1913. It does not appear that a pr æcipe for summons in error was filed, or that summons in error was served upon the defendant, or that it waived same, nor has the defendant appeared in this court. In Springfield Fire MarineIns. Co. v. Belt, 45 Okla. 49, 144 P. 606, it was held:
"Where summons in error is not issued and served within the time allowed by statute, and no pr æcipe therefor has been filed, * * * and the time has expired in which a valid summons may issue, the appeal will be dismissed for want of jurisdiction."
It was also held in Garland v. Henderson, 43 Okla. 597,143 P. 661:
"A petition in error will be dismissed on motion, even though the same is filed within the statutory period, where no waiver of issuance and service of summons is had, and no praecipe for same filed, and no summons is issued or general appearance made within such time."
See, also, Oklahoma City v. Wheeland, 40 Okla. 308,117 P. 1172; O'Brien v. Murrell, 43 Okla. 164, 141 P. 770.
We therefore recommend that the petition in error be dismissed.
By the Court: It is so ordered. *Page 754