
    FRAZIER et al. v. NICHOLS et al.
    
    No. 4615.
    Opinion Filed June 1, 1915.
    (149 Pac. 1181.)
    APPEAL AND ERROR — Grounds for Dismissal — Summons in Error— Return. It is the service of the summons in error, and not the return, that gives this court juridiction, and where summons in error was issued December 4, 1912, and regularly served Decern-' ber 12, 1912, a motion to dismiss will be denied, although the. summons was not returned until May 3, 1915.
    (Syllabus by Brett, G.)
    
      Error from, District Court, McClain County; R. McMillan, Judge.
    
    Action by Sam Frazier and others against W. H. Nichols and others. Judgment for defendants, and plaintiffs bring error, and defendants move to dismiss the petition in error.
    Motion overruled.
    
      E. 0. Clark and Robt. E. Lee, for plaintiffs in error.
    
      Rennie, Docker & Moore, for defendants in error.
   Opinion by

BEETT, C.

This case was tried before K. McMillan, district judge of McClain county, and resulted in. a judgment in favor of the defendants in error, who were defendants in the lower court. The plaintiffs in error bring the case to this court by petition in error and transcript.

The case was docketed in this court on December 4, 1912, and ■ on that date .summons in error was issued, but was not returned and filed in this court until May 3, 1915. However, the return of the officer shows that each of the defendants in error was duly served December 12, 1912. While the long delay in making the return is evidence of inexcusable negligence, yet the return shows the service to have been regular, which gives this court jurisdiction of the cause.

We recommend that the motion to dismiss be overruled.

By the Court: It is so ordered.  