
    Hixon v. Vail.
    
      Summons in error — Returned without service — No service in sixty days — Nor within four months after judgment — Proceedings in error properly dismissed.
    
    Where a summons in error was returned without service and no service was made in the proceeding in error for more than sixty days thereafter, nor for more than four months after entry of the judgment or final order complained of, such proceeding in error was properly dismissed.
    (No. 12868 —
    Decided January 16, 1912.)
    Error to the Circuit Court of Allen county.
    On the 16th day of June, 1910, the defendant in error recovered in the court of common pleas a judgment against the plaintiff in error. To reverse this judgment the plaintiff in error, on the 6th day of August, 1910, filed in the circuit court a petition in error and his precipe for a summons in error returnable according to law. On the same day summons in error was issued and made returnable August 15, 1910. On the last named date the summons in error was returned by the sheriff of Allen county with indorsement as follows: “Received this writ on the 6th day of August A. D. 1910 and on the 15th day of August A. D. 1910, I returned this writ not served as Michael R. Vail could not be found in my bailiwick.”
    On the 10th day of November, 1910, the attorneys for the defendant in error filed in the circuit court a motion to dismiss the petition in error, for the reason that the proceeding in error was not commenced within the time required by law. On the 14th day of November 1910, the following additional indorsement was placed by the sheriff on the summons which had been returned on August 15, 1910: “And on the 14th day of November, 1910, I served this writ by handing a true copy thereof with all indorsements thereon to Bernard O’Connor and Harry O’Connor, partners as O’Connor & O’Connor, attorneys of record for Michael R. Vail, defendant in error.” After-wards on the 14th day of November, 1910, another summons in error was issued and returned on the 15th day of November, 1910, as having been served on the attorneys of record for the defendant in error on the 14th day of November 1910. On December 21, 1910, the circuit court dismissed the petition in error; and to reverse that judgment of dismissal this proceeding is prosecuted.
    
      Mr. B. J. Brotherton and Mr. W. H. Leete, for plaintiff in error.
    
      Mr. A. F. Lindemann and Messrs. O’Connor & O’Connor, for defendant in error.
   Per Curiam.

The second summons and the service thereunder were too late to be of any avail to the plaintiff in error as a commencement of the proceeding in error. There was no service under the first summons, during the life of the writ; and the pretended service after the writ was returned by the sheriff was more than sixty days thereafter and more than four months from the entry of the judgment in the court of common pleas. Sections 11231 and 12270, General Code. Nor does it appear that there was a diligent effort to obtain service followed by service within sixty days.

The judgment of the circuit is

Affirmed.

Davis, C. J., Spear, Shauck, Price, Johnson and Donahue, JJ,, concur.  