Petition in error and ease-made were filed herein August 120, 1931, and on the 28th day of that same month motion to dismiss was filed.

The ease has never otherwise been briefed by the plaintiffs in error except that on November 4, 1981, they responded to the motion to dismiss and urge that if the case-made was never filed 'after being properly served and settled, the same is a transcript. They also urge that the petition shows on its face that the action is premature, but there is no assignment of such error, and if it is covered by the general assignment that the court erred as a hiatter of law, it is raised for the first time in this court. And it appears that upon the most liberal theory in favor of plaintiffs in error it would take some evidence to remove the presumption from the record that the action was properly brought.

This case must, therefore, be dismissed under the rule that no case-made was settled and served as by law required, and that it is apparent on the face of the record that the appeal is frivolous.