
    FRAZIER et al. v. HOCKER et al.
    
    No. 4613.
    Opinion Filed June 1, 1916.
    (149 Pac. 1181.)
    APPEAL AND ERROR — Dismissal — Service of Summons. Where there is no waiver of the issuance and. service of summons in error, and no general appearance by defendants in error, and the summons in error is issued December 4, 1912, and not returned until May 3, 1915, and shows the defendants in error have not been served, this court is without jurisdiction, and the appeal will be dismissed.
    (Syllabus by Brett, O.)
    
      Error from District Court, McClain County; R. McMillan, Judge.
    
    Action by Sam Frazier and others against L. C. Hoeker and others. Judgment for defendants, and plaintiffs bring error.
    Dismissed.
    
      E. 0. Clark and Robt. E. Lee, for plaintiffs in error.
    
      Rennie, Hoeker & Moore, for defendants in error.
   BRETT, C.

This case was filed in the district court of McClain county by the plaintiffs in error against the defendants in error, and on a hearing had before R. McMillan, judge, judgment was rendered in favor of the defendants in error, and the cause is brought by the plaintiffs in error to this court by petition in error and transcript, and was docketed here on December 4, 1912. A summons in error was issued on the 4th day of December, 1912, and not returned until May 3, 1915, and the return recites that neither of the defendants in error has been served.

There has never been any effort made by the plaintiffs in error to bring the defendants in error into this court, except the issuance of the above summons in error. There is no waiver of service of summons, no general appearance by the defendants in error, and motion to dismiss was served on the plaintiffs in error May 11, 1915, and no reply has been made to this motion, and time for bringing the former into court has now passed, and under these circumstances this court is without jurisdiction to pass upon their rights. See Dr. Koch Vegetable Tea Co. v. Davis et al., ante, 145 Pac. 337.

We recommend that the appeal be dismissed.

By the Court: It is so ordered.  