
    FRAZIER et al. v. HOCKER et al.
    
    No. 4614.
    Opinion Filed June 1, 1915.
    (149 Pac. 1182.)
    APPEAL AND ERROR — Dimissal—Service of Summons. Where petition in oi-ror and transcript is file.1 in this court on December 4, 1012, and summons in error is issued on that date, but never returned and filed in this court, there- is nothing to show affirmatively that the defendants in error have legal notice of the appeal. ' And in such case, in the absence of waiver of summons in error, or general appearance, this court is without jurisdiction to pass upon tl eir rights, and the appeal will be dismissed.
    ( Syllabus by Brett, (’.)
    
      Error from District Court, McClain County; R. McMillan, Judge.
    
    Action by Sam Frazier' and others against L. C. Hocker and others. Judgment for defendants, and plaintiffs bring error.
    Dismissed.
    
      This case is brought to this court by petition in error and transcript, and was docketed on December 4, 1912. A summons in error was issued on the 4th day of December, 1912, but no return has ever been made, nor do the plaintiffs in error give any explanation of the long delay, and no steps have ever been taken to obtain service by alias summons or by any other means. There was no waiver of the issuance of summons in error, and no general appearance by the defendants in error. The defendants in error have now entered special appearance, and move to dismiss, which motion was duly served on May 11, 1915, and the plaintiffs in error have made no answer thereto, nor given any reason why such long delay has taken place.
    N. 0. Clark and Robt. E. Lee, for plaintiffs in error.
    
      Rennie, Hooker & Moore, for defendants in error.
   Opinion by

BRETT, C.

(after stating the facts as above). Where there is no waiver of summons in error, no general appearance, and the record does not show affirmatively that the defendants in error have been duly served with summons in error, this court is without jurisdiction to pass upon their rights, and the appeal in such case should be dismissed. 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.  