{dissenting)— I. Section 6 of article 6, of the amendment to our state constitution adopted in 1884, provides that: ‘ ‘ When any one of said courts of appeals shall, in any cause or proceeding, render a decision which any one of the judges therein sitting shall deem contrary to any previous decision of any one of said courts of appeals or of the supreme court, the said court of appeals must, of its own motion pending the same term and not afterward,, certify and transfer said cause or proceeding, and the original transcript therein to the supreme court, and thereupon the supreme court must rehear and determine said cause or proceeding, as in case of jurisdiction obtained by ordinary appellate process; and the last previous rulings of the supreme court on any question of law or equity shall in all cases be controlling authority in said courts of appeals.” Upon this section-the relator relies on his motion for a peremptory writ.
The plain purpose and central idea of this section is to keep the courts of appeals in accord with each other in their rulings, and with this court. The duty of the judges of these courts of appeals in this regard *541could not be made plainer by the use of any other language which could be employed ; the words used are mandatory, and admit of nothing short of positive and full obedience to their command.
Now it is evident from an examination of the majority opinion and the dissenting opinion, that in the opinion of the majority their ruling was in accord not only with the previous decisions of this court but with those of the courts of appeals. And it is equally evident that in his dissenting opinion the views of Smith, P. J., are diametrically opposed to those of the majority of the court on two salient points : First. He holds that the affidavit in the cause was amendable and, therefore, properly amended, and that the attachment proceedings were not void. Second. He holds that in any event the defendants, their motion to quash having been denied, waived and cured any defects in the original affidavit, by pleading in abatement and going to trial on the issue thus raised. Nothing can be clearer than this. Nor was it necessary that the dissenting judge “ should so state in so many words ” that he deemed the decision of the majority “contrary to any previous decision of any one of said courts of appeals or of the supreme court,” because, first, it is so apparent from his citation of authorities and reasoning thereon, that the decision of the majority is contrary to the former rulings of this court and of the courts of appeals, as to require no express declaration to that effect; “it goes without saying;” because, second, unless the presiding judge did deem the decision of the majority contrary to former rulings, etc.’, then his dissent is without force, point or meaning. But his direct and forcible attack on the reasoning of the majority leaves no room to doubt what he then thought of the majority opinion.
There is no magic in the words, “ shall deem contrary,” etc. Any other words of equivalent import will answer the purpose just as well; nor does the constitution require the use of the words quoted in order to *542give origin to the performance of that duty which section 6 enjoins upon each of the courts of appeals when the exigency therein provided for shall arise. Nor can the views of a dissentient judge in such case, if they undergo a change after the expiration of the term at which they are delivered, affect the duty enjoined by the section in question, or affect the supervisory control of this court conferred by section 8 of the same constitutional amendment.
The duty of the court of appeals in cases like the present is based upon the attitude and utterances made and taken by the judge who disagrees with his associates, as then stated and made, and those utterances must speak for themselves. As before stated that duty is mandatory ; it needs neither suggestion nor adventitious aid to bring it into action. The language of the constitution is : “The said court of appeals must, of its own motion, ” etc. This language effectually disposes of that portion of the return, wherein the respondent judges state that they were not “asked,” etc. Invitations in such instances are wholly unnecessary and uncalled for ; constitutional etiquette does not require them.
II. Upon the argument of this motion for the issuance of the peremptory writ, it was conceded that the fact that the term had expired at which the majority and dissenting opinions were delivered did not affect the jurisdiction of this court, if the pleadings herein presented a proper case for its exercise. But if contention had been made that the expiration of the term shut off the power of this court to compel the Kansas City court of appeals to do its constitutional duty, and transfer the cause in question to this court, such contention would have been effectually answered by the case of State ex rel. v. Lewis, 71 Mo. 170.
For reasons already given in my opinion, a peremptory writ should be awarded.
As expressing my views and as my dissent herein, I hereby refile the foregoing opinion.