
    FIRST NAT. BANK OF CUSHING v. ATCHISON T. & S. F. RY. Co. et al.
    No. 9461
    Opinion Filed Dec. 31, 1918.
    (177 Pac. 547.)
    (Syllabus.)
    Appeal and Error — Appellate Procedure— ■Statute — Parties.
    I'1, proceedings hi error in this court to review judgments and final orders of the district court rendered prior to March 23, 1917, the procedure is "ovemed by .eetions 5238 to 5240, R. Ii. 1910; and where in such proceeding a defendant in error has not entered a general appearance in this court and summons in error was not issued and served, or waived within the time prescribed by law for perfecting an appeal, this court is witli-'•ut "risdietion to ente1, m'n spch proceeding in error as to such defendant in error.
    Error from District Court, Payne County; John P. Hickam, Judge.
    Action between the First National Bank of Cushing, Oklahoma, and the Atchison, Topeka <JV Santa Fe Railway Company and others. Judgment for the latter, and the former brings error.
    Motion by defendant in error to dismiss the proceeding in error as to it, sustained.
    Mont F. Highley and C. C. Suman, for plaintiff in error.
    CVliingham & Hayes and Hunter I. Johnson, for defendant in error Atchison, T. & S. F. Ry. Co.
   PER CURIAM._

This proceeding in error was commenced to review a judgment rendered on the 17th day of February, 1917, and order overruling motion for a new trial made on the 17th day of March, 1917. The defendant in error Atchison, Topeka & Santa Fe Railway Company moves to dismiss the proceeding in error as to it upon the ground that summons in error was not issued and served upon it within the time prescribed by law; they not having waived the issuance and service of same, or entered a general appearance herein.

The motion of said defendant in error appears to be well taken, and the same is sustained. Merritt v. Newton, 67 Okla. 150, 169 Pac. 488. It dees not appear that the At-chison, Topeka & Santa Fe Railway Company is a necessary party to this proceeding in error, and, the'other defendants in error having waived issuance and service of summons in error, jurisdiction is retained as to them.  