concurring in result in Parts I and 11(a) and generally in the remainder:
PART I
The two appeals before us here are from the same order in a post-judgment garnishment proceeding against the debtor’s alleged public liability carrier (insurer). The creditor (Spears) recovered less than his entire judgment. Corrective relief is sought from the November 21 order that denied new trial. The first appeal by Spears was brought November 27, the second one by the insurer December 18.
Spears urges dismissal of the insurer’s appeal. It is perceived to be out of time. Under Rule 1.18(a),1 Spears argues here, any later-filed appeal from the same decision must be brought within ten (10) days of the time the earlier (original) appeal was commenced. I reject the argument on grounds different from those given by the court.
In my view, both appeals are timely. Each was lodged here within the thirty-day period prescribed in § 990.2 That period runs from the judge’s pronouncement of an appealable decision. Its commencement cannot be triggered or retarded by the act of a litigant. The period is fixed by statute and must be uniformly applied to all appeals. Neither its abridgment nor elongation is legislatively sanctioned. Every proceeding-in-error — be it called principal (original), counter or cross-appeal — is governed by the same statutory time span. *1344The power vested in this court by § 990(a) —to provide by rule for the filing of cross-appeals 3 — affords no valid basis for a rule-generated change in the terminal date for bringing a cross-appeal. Under the cited section our rule-making function must be carried out “in furtherance”, rather than in contravention, of the statutorily structured “appeal method”. That method prescribes but a single time limit. In the exercise of authority conferred on it by § 990(a) this court can do no more than fashion orderly procedure for the accommodation of those litigants who bring here for review the same decision that another party in the case has already tendered for corrective relief by an earlier appeal.
There is another, and equally cogent, reason for applying to both appeals here the thirty-day limit in § 990. The insurer’s petition in error does not, strieto sensu, bring a cross-appeal but rather a counter-appeal.4 Section 990 makes no explicit or implicit reference to that class. Because it fails to recognize counter-appeals as a category separate from others for commencement time purposes, there exists absolutely no statutory warrant for changing by rule the legislatively-prescribed terminal date for their institution.
I regard as legally uncountenanced, and hence inefficacious, any provision in Rule 1.18(a) which establishes a different appeal time for counter-appellants or cross-appellants from that which stands legislatively prescribed by § 990.5
PART 11(a)
My reasons for concurring in this part of the court’s opinion also differ from those articulated by the court.
A fatal defect in the form of the return of a summons can never save a judgment from being void on the face of the roll — not even when such flaw would have been amendable and hence could have withstood an attack upon it by motion to quash. See 12 O.S.1981 § 154.2. In my view, until a fatally defective return is found amendable and is allowed to be amended nunc pro tunc, it will continue to taint the face of the roll and render the judgment void.
Because the record in this case shows that the insurer, acting for the insured, did make a general appearance at a deposition hearing in the action, I would hold that the insurer is estopped in this garnishment proceeding from challenging the return as defective. The voluntary appearance then made for the insured defendant in the case is to be deemed equivalent to service upon him. 12 O.S.1981 § 162. See ABC Drilling Co., Inc. v. Hughes Group, Okl., 609 P.2d 763, 769-772 [1980] (Opala, J., concurring in part and dissenting in part).
I concur generally in the remainder of the court’s pronouncement.
. Rule 1.18(a), Rules of Appellate Procedure, 12 O.S. 1981 Ch. 15, App. 2.
This rule provides in pertinent part:
“If opposing party or parties have timely filed petition in error in any cause then any party aggrieved by the same decision or by different appealable decisions in the same case shall be entitled to ñle his petition in error 10 days from the date petition was originally filed by an opposing party or parties. * * * ” [Emphasis added],
. 12 O.S.1981 § 990 provides in pertinent part:
“An appeal to the Supreme Court may be commenced from an appealable disposition of a court or tribunal by filing with the Clerk of the Supreme Court a petition in error, within thirty (30) days from the date of the final order or judgment sought to be reviewed. * * * ” [Emphasis added].
. The pertinent part of § 990, by which the rule-making power is granted, is:
“The Supreme Court shall provide by court rules, which will have the force of statute, and be in furtherance of this method of appeal: (a) For the filing of cross-appeals ...” [Emphasis added],
. A true cross-appeal is one brought by an appellee in the original appeal who seeks relief against another appellee only, while a counter-appeal — much like a counter-plea or counterclaim — is one by an appellee who invokes the court’s appellate jurisdiction for relief against the original appellant. The status of original appellant thus depends entirely on who, among the multiple aggrieved parties below, wins the race to the clerk’s office. As the “original appellant”, the winner of the race to this court does not occupy or earn a status of special privilege or advantage.
.Before Rule 1.18(a) was amended October 5, 1978, state and territorial law always provided but one time limit during which any party to an appealable decision could bring a proceeding-in-error. Paulter v. Manuel, 25 Okl. 59, 108 P. 749, 751 [1910]; Board of County Com’rs of Kiowa Co. v. Kiowa Nat. Bank, 166 Okl. 255, 27 P.2d 338 [1933] and Mee v. Corporation Commission, Okl., 293 P.2d 593 [1956]; see also Smith v. State Industrial Court, Okl., 408 P.2d 317, 320 [1965],