(dissenting) — I do not concur in the views of my learned brother Bond, in this ease. I concede the general rule that the .deposit of an instrument with an officer whose duty it is to file such instrument, is usully a filing of such instrument to all intents of the law. But the neglect to file such an instrument in due form by uch officer is a neglect of duty. The rule which says that the deposit thereof with such officer shall be deemed a *58filing is one of necessity, and is one which can only be in-yoked by the party depositing it for filing. By this I mean the párty depositing the instrument for filing, can say that it is no fault of his that it has not been filed, and he cannot be denied the benefits accruing from an actual filing. This is the rule for the reason that the negligence of the officer shall not be held to prejudice the rights of one who in good faith has done all that is required of him for a timely filing. But this rule is totally foreign to the case at bar. .Here we have the clerk himself invoking the rule, and asking that the bill of exceptions be considered as filed, although he has negligently failed to file it.
The doctrine announced by my brother is a dangerous one. The clerk could refuse to property file every bill of exceptions, but place them with the files, and thus defeat' all applicants, or at least force them to a hearing in the appellate court upon the record proper. Under the law and rules of court the record proper, upon appeal, must ■show the filing of a bill of exceptions, or that document is not before the appellate court for review. In the case at bar it appears that in the case of Callier v. Railroad, 158 Mo. App. 249, the clerk neither made a record entry showing the filing of a bill of exceptions, nor did he make in his office or on the bill of exceptions any written memorandum from which the circuit court could rightfully make a nunc pro tunc entry of such filing. It is this neglect of the clerk which' is the basis of this suit against him and his bondsmen. That he was grossly guilty of negligence in his office clearly appears. That such negligence precluded the railroad Trom a hearing clearly appears. Under such circumstances the clerk can’t invoke the rule that the deposit of the bill of exceptions was a filing. He can never invoke that rule to cover his own neglect or negligence. Such rule of necessity has no application to him. Such rule can only be invoked by one who would be injured by the neglect of the office. It cannot be invoked to excuse the negligence of the officer in a suit based on such negligence.
My brother and the Springfield Court of Appeals have misapplied the rule. Stated otherwise they have invoked a rule which has no application. On the record be*59fore ,it the St. Louis Court of Appeals in Callier v. Railroad, 158 Mo. App. 249, was right in holding that there was no bill of exceptions before them, and further right in holding that there was no written memoranda from which a nunc pro tunc entry could be made by the circuit court. I therefore dissent.
Walker and Woodson, JJ., concur in these views.