HAYES, C. J.
This appeal is by petition in error and case-made. The record fails to show that defendant in error was present either in person or by counsel at the settlement of the ease-made, or that notice of the time and place of settlement was served npon him, or waived. A motion to dismiss upon this ground, as well as upon other grounds, some of which have merit, has been hied. The facts above stated alone require that the motion should be sustained. First National Bank of Collinsville v. Daniels, 26 Okla. 383, 108 Pac. 748.
All the Justices concur, except WILLIAMS, J., not participating.