Hampton v. Rider.
(Decided May 20, 1919.)
Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).
Appeal and Error — Appeals—Time for Trial — Premature Submission — Practice.'—An appeal granted by the Clerk of the Court of Appeals does not stand for trial until the appellee has been summoned or has entered his appearance, and where a case has been submitted before either of these things has been done, the submission is premature and the order of • submission will be set aside and the case continued.
JOS. SOLINGER and O’NEAL & O’NEAL for appellant.
ELMER C. UNDERWOOD for appellee.
Opinion op the Court by
William Rogers Clay, Commissioner
Setting aside the order of submission and continuing the case.
*335This appeal was granted by the clerk of this court. Appellee was summoned but the process was returned “Not executed.” Though he never entered his appearance and no furthér steps were taken to bring' him before the court, the case was submitted. An appeal granted by the clerk of this court does not stand for trial until the appellee has been summoned or has entered his appearance. Section 753, Civil Code. It follows that the submission was premature.
Wherefore, the order of submission is set aside and the case continued.