¶2This is an original proceeding by mandamus, the purpose of which is to compel Hon. Daniel G. Taylor, one of the judges of the circuit court of the city of St. Louis, either to sign or certify why he refuses to sign a bill of exceptions in a cause wherein the relator, William S. Winsor, is defendant and Edward C. C. Reicel is plaintiff. The facts upon which relator relies for the relief prayed for, succinctly stated, are that on April 24, 1907, Edward O. C. Reicel recovered a judgment against William S. Winsor (relator) in the sum of $1,149, in the division of the circuit court of the city of St. Louis over which Hon. Daniel Taylor presides. On April 27, 1907, Winsor filed his motion for a new trial, which Judge Taylor overruled on September 30, 1907. During the same term, on October 5, 1907, Winsor filed his affidavit for an appeal to the St. Louis Court of Appeals, which appeal was allowed on the same day and ten days allowed appellant to file his appeal bond and sixty days to file his bill of exceptions. On the tenth day of the same month, Winsor filed his appeal bond, which was approved by the court. By orders duly made the time for filing the bill of exceptions was extended to and included January 10, 1908. After obtaining possession of the transcript of the evidence made by the official stenographer of the court from his stenographic notes, Winsor’s attorney made a number of alterations therein, by erasures and insertions, and then submitted his bill of exceptions to opposing counsel, who, on a separate sheet noted his objections to the bill of exceptions as prepared by Winsor’s attorney. Winsor’s attorney conceded a number of objections noted by opposing counsel, but not all of them, and on December 23, 1907, handed the bill of exceptions as prepared by him, the objections thereto by opposing counsel and his concessions, to Judge Taylor for examination. As. to what trans*445pired on December 23d and thereafter, is stated in the following certificate over Jndge Taylor’s signature:
“I, the undersigned, Daniel Gr. Taylor, Judge of the Circuit Court, City of St. Louis, Division No. 2, and before whom the above-styled cause was tried, do certify that defendant’s counsel presented to me the attached Bill of Exceptions in open court on December 23, 1907, and that on said date, and at the same time, plaintiff’s counsel presented his objections to said hill of exceptions, which objections are hereto attached and marked ‘B’; that thereupon I extended the time for filing defendant’s bill of exceptions until January 10, 1908, by a proper order; that immediately after taking possession of defendant’s bill of exceptions and plaintiff’s objections thereto, I delivered the same to the court reporter with 'directions to examine the stenographic notes relating to this cause in the light of the changes in the original transcript, and plaintiff’s objections, and to report to me.
“The report of the court reporter, which is marked ‘C’ was delivered to me by him on or before the 6th day of January, 1908, and by me considered. Upon such consideration I concluded I could not sign the bill of exceptions as presented for the reason that it did not correctly set out the facts. I took no further action on this matter and gave it no further consideration until January 14, 1908, when counsel for both parties, pursuant to notice sent by me, appeared in court, when defendant’s counsel urged the court to sign his bill of exceptions as presented, as of either the date when the same was delivered to the court or as of some day prior to January 10, 1908, or to extend the time for filing by nunc pro tuno entry, so as to cover a date of signing and filing of the bill of exceptions; this the court refused to do. From the last-mentioned date to this, the court has had the matter of signing and filing of said bill of exceptioris under daily consideration, aided by counsel, with a view of determining a proper course to *446pursue. This certificate is made in order that facts not otherwise of record may be considered by any other court called upon to review the action of this court in the premises, and is signed in chambers on this 18th day of January, 1908.
“(Signed.) Daniel G-. Taylok, (Seal).
“Judge.”
¶3Winsor’s attorney made no'inquiry of Judge Taylor about the bill of exceptions until he was notified by the judge, on January 14th, that he had not signed it. He was then in a humor to concede all the exceptions of the opposing counsel to get the bill signed.. But the time for signing and filing the bill had expired and the judge had no further jurisdiction over the cause and could not rightfully sign the bill, nor would it have become a part of the record if it had been signed and filed, neither did the court have power to make a nunc pro tuno order extending the time in which to file the bill, for the reason there was no memorandum jin writing to authorize the entry of the nunc pro tunc order. For the reason relator’s attorney did not call upon Judge Taylor about the bill of exceptions to inquire about it before the time for filing the same had expired, it is contended by respondent that his failure to get his bill of exceptions perfected in time is due to his own negligence. It may, for the purpose of the case, be conceded that relator’s attorney was negligent in failing to make inquiry of Judge Taylor and to learn whether he had signed, or refused to sign, the bill of exceptions before the expiration of time allowed for filing the same. Section 729 (Ann. St. Mo. 1906) provided: “If the judge refuse to sign such bill on the ground that it is untrue, he shall certify thereon under his hand the cause of such refusal.” The next succeeding section provides for the signing of the bill of exceptions by bystanders in case the judge refuses to sign the bill on the ground that it is untrue. It has been held that where the judge refuses to sign a bill of *447exceptions on tbe ground that it is untrue, he shall point out wherein it is untrue with such particularity as to make it, understood in what the untruthfulness of the bill consists and assist the parties in making it up. But the law does not require him to write the bill, or to change the one presented to him (Bowen v. Lazalere et al., 44 Mo. 383), and until the judge has refused to sign the bill of exceptions and stated why he refused to sign, it cannot be signed by bystanders. [State ex rel. Millett v. Field, 37 Mo. App. 83; Metz v. Sutton, 111 Mo. App. 444.] Respondent’s return shows that he refused to sign the bill because it was untrue, but he did not certify to this fact before the time for filing the bill had expired, and, indeed, not until the alternative writ was served upon him. He states that on the sixth day of January (four days before the expiration of the time for filing the, bill) he ascertained from a comparison of the transcript of the stenographer’s notes with the bill, wherein the latter was untrue.
¶4Circuit Court Rule No. 37, pleaded and relied on by relator, provides that bills of exceptions shall be served on the adverse party, who shall within three days make objections (if any) on a separate piece of paper, and serve the same on the excepting party. If the excepting party does not agree to such alterations then the proposed bill and alterations shall be submitted to and settled by the court. Under this rule, as well as under the statute, it was respondent’s duty, after ascertaining wherein the bill was untrue, from the notes furnished . by the court reporter, to have called counsel to his aid, if necessary, and have settled and signed the bill, or failing to settle it, the judge should have certified wherein he found it untrue in time to have afforded the relator an opportunity to prove the bill by bystanders and- file it on or before January 10th. By neglecting to do either, respondent deprived relator of his constitutional right of appeal, unless the relief prayed for in the petition is granted. But respondent *448contends that it was the duty of relator’s counsel to follow up the prosecution of his. appeal by waiting upon respondent from day to day, or from time to time, to see that the bill was signed and filed on or before January 10th, and that failing so to do, respondent’s counsel was guilty of such negligence as to defeat the remedy prayed for. The duty of the court to sign or refuse to sign the bill because untrue was mandatory under the statute, and the relator’s counsel had a light to presume respondent would obey the mandate of the law. If the bill had been signed on or before January 10th, or if respondent had certified that he refused to sign it because untrue, and relator’s counsel had failed to call on respondent for the bill on or before that date for the purpose of filing it, if signed, or proving and filing it, if certified to be untrue, relator would have had to suffer the consequences of his counsel’s negligence. And for the purpose of defeating the relief sought for, respondent insists that as relator’s counsel made no inquiry about the bill until he was called up by respondent on January 14th, had the bill been signed on or before January 10th, it would not have been filed on or before that date and therefore relator was not injured by respondent’s right to take any action on the bill. To consider this contention would introduce a false issue in the case, predicated upon a fact which we know does not exist, namely, that respondent acted on the bill within the time he might have done so. The action or non-action of relator’s counsel after he had performed his duty by submitting his bill to respondent to be settled and signed by him, can have no bearing on the merits of this case under the pleadings, for up to that point he is not accused of any neglect. It is also insisted that to make the alternative writ issued herein mandatory would reflect upon the integrity of relator as a judge. Mandamus is an ordinary remedy, frequently resorted to in cases like this and it has never been considered by the bench or bar, that its issuance *449by a higher to an inferior court is a reflection upon the integrity of the latter. We are very certain that neither the bench or bar will so regard, the writ in this case, and we feel equally certain that respondent will not so regard it; on the contrary, we are assured that he is anxious that some legal way be provided whereby relator may be enabled to perfect the appeal. The trial court having lost its power to settle the bill of exceptions, this court, by virtue of its appellate jurisdiction or superintending- control, in the interest of justice, may compel the doing of an act which the lower court has lost its power to do on its own motion. [State ex rel. The New York Life Ins. Co. v. Phillips, 96 Mo. 570; State ex rel. v. Gibson, 187 Mo. l. c. 550, 551.] Therefore, I think the alternative Avrit heretofore issued should be made absolute.