¶2as appears by the transcript on file, was indicted for murder, and put in a special plea, to which the state demurred, and the court sustained the demurrer and required him to plead further. Whereupon, he filed a petition in error and caused a transcript of the record to be certified to this court, and the case has been argued here upon the errors assigned in the said petition.
¶3On examination of the transcript we find no notice of appeal and are led first to inquire whether the cause is properly before us without such notice appearing in the record.
¶4The code of criminal procednre, section two hundred and sixty-four, provides that “ an appeal to the supreme court may be taken by the defendant, as a matter of right, from any judgment against him, and upon the appeal, any decision of the court or intermediate order made in the progress of the cause may be reviewed.”
¶5Section two hundred and sixty-eight provides that “ an appeal is taken by the service of a notice upon the clerk of the court where judgment was entered, stating that the appellant appeals from the judgment. If taken by the defendant, a similar notice must be served upon the prosecuting attorney. If taken by the territory, (now the state,) a similar notice must be served upon the defendant, if he can be found in the countyif not, then by posting up a notice three weeks in the deck’s office.
¶6No petition in error is provided for, and therefore none is necessary or useful. It is mere surplusage. But the service of the notice of appeal on the clerk, and the appellee or attorney, constitutes the appeal; and upon that alone the jurisdiction of this court to review the judgment and decisions of the court below rests. It is, therefore, an importan part of the record, and it should appear in the transcript filed, that this court may see, and its record show that it has jurisdiction of the cause.
¶7*335The codo provides (§ 272) for proof of notice of appeal to the appellee before the appeal is tried.
¶8The appearance of the appellee, and his proceeding to argue the merits, may be sufficient proof of that notice. But the service on the clerk is unproved, and this court cannot assume the existence of a portion of the record not before it, nor render a judgment which, upon the face of its own record, would appear to be without jurisdiction.
¶9We come to this conclusion with the less reluctance, because it seems manifest that the appeal, if taken upon proper notice, and duly certified to this court, must have been dismissed— the decision complained of being interlocutory, and renewable only on appeal from the judgment.
¶10The proceedings in this court must be dismissed, because the record does not show that any appeal has- been taken,