This was an appeal from an order of the circuit court awarding a new trial after the recovery of a judgment by plaintiff. The ruling of the circuit court was upon the theory that the petition failed to state a cause of action. The majority of this court held the ruling of the circuit court to be error. Upon the dissent of one of the judges the cause was certified, in the.constitutional method, to the supreme court for- final determination (Ricketts v. Hart, 73 Mo. App. 647). It has been heard and decided by that body, and a copy of its opinion and mandate has been sent to this court, in conformity with which the judgment of the circuit court is reversed and the cause remanded as *438heretofore directed by the opinion of the majority of this court.

SEPARATE OPINION.

I dissented from the opinion of my associates in this case upon the ground that the abstract of the appellant failed to show that a bill of exceptions had been filed and the errors complained of being matters of exception the judgment of the circuit court granting a new trial therefore should be affirmed (73 Mo. App. loc. cit. 655). The supreme court in its opinion sustained that view, but the appellant was- allowed to file an additional abstract showing that the bill of exceptions had been properly filed. Had the omission been supplied in this court there would have been no necessity for certifying the case.