DISSENTING OPINION.
GANTT, C. J.I respectfully dissent from the opinion of my brethren. By section 3 of article VI of the Constitution of Missouri adopted in 1875-, it is provided: “The Supreme Court shall have a general superintending control over all inferior courts. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari and other original remedial writs, and to hear and determine the same.” By the 8th section of the amendment to the Constitution adopted November, 1884, it was specifically provided: “The Supreme Court shall have superintending control over the Courts of Appeals by mandamus, prohibition and certiorariBy section 6 of said amendment it is further ordained that “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.” The history of this amendment is so recent that its object is well known. Owing to the crowded docket of this court at that time, an effort was made to relieve it by the creation of these Courts of Appeals. In my opinion two main purposes were intended to be subserved by the amendment; one was to relieve the docket of this court and prevent delays in the administration of justice; the other was that there should be one uniform line of adjudications by keeping the Courts of Appeal in accord with each other and both of them in harmony with the decisions of this court. In State ex rel. v. Smith et al., *126Judges of the Kansas City Court of Appeals, 172 Mo. 446, and State ex rel. Stanberry v. Smith, 172 Mo. 618, this court by writs of mandamus required the Kansas City Court of Appeals to conform its practice as to the sufficiency of abstracts required by section 818, Revised Statutes 1899, by directing it to reinstate said appeals which it had dismissed. In State ex rel. v. Smith, 172 Mo. l. c. 459, Judge Brace voiced the unanimous judgment of this court, by saying: “The case in question is within the exclusive appellate jurisdiction of the Kansas City Court of Appeals. From its judicial determination thereof no appeal lies to this court, and the writ of mandamus cannot be made to perform the functions of an appeal. Nevertheless, the Constitution provides that this court ‘shall have superintending control over the Courts of Appeals by mandamus.’ [Sec. 8, Am. of 1884, 1 R. S. 1899, p. 94.] And while under the power conferred on this court by this Constitutional provision the jurisdiction of the Court of Appeals to hear and determine the case cannot be invaded, yet the provision does confer the power and afford the means by which this court may compel that court to exercise its jurisdiction. To the end that it might properly d'o so, the Court of Appeals, in pursuance of the statute authorizing it thereto, adopted and promulgated certain rules for the presentation of causes in that court for their hearing and determination. As we have seen, the relator, in compliance with the statute and these rules, thus presented its case to that court for its hearing and1 determination. But the Court of Appeals, owing to an erroneous construction of its rules, refused to hear and determine the cause thus presented, and dismissed the appeal.” Accordingly it was held this court by mandamus could and would require that court to reinstate the appeal and determine it. In this case, it appears the Court of Appeals refused *127to consider the bill of exceptions filed in the ease of Mahala Cramer v. The Springfield Traction Company, for the reason that the bill of exceptions filed by leave of the circuit court in vacation was not authenticated hy any record or minute of record, but was endorsed by the circuit clerk when filed by the appellant therein in strict conformity to the order and leave' of the court, made in pursuance of sections 728 and 732, Revised Statutes 1899, in the following words: “In obedience to the order of Honorable Argus Cox, Judge, in vacation, I file this bill of exceptions this 17th day of February, 1906. Luther Hyde, Clerk.”
In support of its refusal to consider this hill of exceptions, the Court of Appeals, in its opinion, said: “It is well-settled law in this State that a bill of exceptions being a matter outside of the record proper must be authenticated by some entry on the records of the court. An entry on a bill of exceptions of its filing is no evidence of its authenticity. ‘It has been uniformly ruled by this court that the record proper must, if in term time, show the filing of the bill of exceptions, and, if the time has been extended in term time, the record proper must show it, and the minutes of the clerk in vacation must show the filing within the time allowed; that the recital in the hill cannot supply the defect, as in the very nature of the case the bill of exceptions is no part of the record until signed and filed by leave of court. ’ [Ricketts v. Hart, 150 Mo. l. c. 68.] ” That our brethren of the Kansas City Court of Appeals have misconstrued and misapprehended the meaning of the words “and the minutes of the clerk in vacation must show the filing within the time allowed,” I take it we are all agreed. Our statutes make no provision for the clerk of the circuit and common pleas courts keeping vacation records except in cases where the statutes provide for orders of pub*128lication. By “the minutes of the clerk” was meant the noting of the filing of the hill of exceptions itself, and nothing more, and this has been and is the uniform ruling of this court. When, therefore, the appellant had his bill duly allowed and signed by Judge Cox and tendered it to the clerk within the time allowed and the clerk endorsed it filed and affixed his official signature thereto, it became a part of the record, and in my opinion, the Court of Appeals was bound to consider the bill of exceptions as a part of the record in that cause, and to deny appellant that right was to deny him a, plain legal right accorded to every appellant in this court, and a clear misapprehension of the last rulings of this court on that subject. I am unable to accept the distinction made by my brethren between the dismissal of appeals in the two cases cited from the 172nd volume of our reports because the abstracts were deemed insufficient and the ruling that the bill of exceptions in this case was not properly authenticated. The ruling in each case led to the same result, a denial of the consideration of the exceptions of the appellant. To the end, therefore, that there should be one uniform practice in the appellate courts of this State and that the Court of Appeals should conform to the practice of this court, I think the writ of mandamus should be made peremptory, and this I do with the utmost respect for my learned brethren of the Kansas City Court of Appeals.