(after stating the facts). — The St. Louis Transit Company has filed a motion to dismiss plaintiff’s appeal and to affirm the judgment of the court below because it does not appear from the abstract of the record filed by appellant that there was any order of record made by the court below allowing appellant’s bill of exceptions or any entry of record showing that plaintiff’s bill of exceptions was filed or that plaintiff’s affidavit for appeal was allowed by the court “by any order of record.” The abstract is somewhat faulty in the way in which these matters are shown, but they appear sufficiently to warrant us in looking to the transcript itself and doing that, we find that exceptions were properly saved, bill of exceptions duly tendered and filed and the proper affidavit for appeal made and the order granting the appeal entered of record. The motion must therefore be overruled. As this matter comes up *425so often before us, it is well to call attention of counsel to the fact that whether a bill of exceptions is filed is not material in determining the question as to whether we should dismiss the appeal or affirm. Even without any bill of exceptions, with the record proper before us, we are bound to look into the case to determine whether on that record proper there is error and on that conclusion affirm or reverse. But it is no ground for dismissing an appeal or writ of error or for affirming, that the bill of exceptions has not been filed in the case or exceptions saved to the overruling of a motion for new trial. We state this here because it comes up so very often that counsel seem to have overlooked the matter.

As to the case itself, the judgment of the circuit court in favor of the St. Louis Transit Company is correct. So far as concerns the judgment in favor of Jared Young, assignee of Annie Haiiburton, the issue raised on the interplea of Young by the answer of plaintiff presented issues of fact as well as of law and it was error in the circuit court to render judgment in favor of Young on mere motion without examination into the facts. Moreover Slevin and Palmer are necessary parties. There can be no determination of this question in their absence of the complete disposition of the fund. If they are not to be found within the state, they must be brought into court by publication on proper affidavit of non-residence. The decree makes no disposition of the whole fund. It awards about six hundred dollars to Young and the Transit Company, and leaves about four hundred dollars in court and undisposed of. This is error.

It is earnestly insisted by counsel for appellant that as the property involved in the agreement between Mrs. O’Connell and her husband on the one part and the Trust Company on the other was the sole and separate estate and property of Mrs. O’Connell, that she could not bind it for payment of the debts of her *426husband. That is foreign, to the issue in this case. The determination of this case must depend upon the construction of the contract pleaded. By that contract Mrs. O’Connell has chosen to make herself responsible for the payment of the judgments mentioned in' it. Whether they are judgments against her or against her husband or against both of them, or against any one else is immaterial. She is bound for them by this contract as long as they are unsatisfied and have not been paid by her, her husband or any one for them, or if paid by the Mercantile Trust Company, provided they are existing obligations, and that company is entitled to deduct from the fund the amount, if any, paid thereon, assuming that at the time of that payment, they were valid and subsisting judgments.

Accordingly the judgment is reversed and the cause remanded for proceedings in accordance herewith after all of the parties have been brought in on proper service. ■ As to the St. Louis Transit Company, on final determination of the case, the judgment heretofore entered in its favor should be re-entered, along with a proper judgment disposing of the whole fund and all the parties in order that this matter may be disposed of as to all the intervening parties and the fund itself by one judgment.