only founded on the natural meaning of the words of the statute, but has been affirmed and finally settled by the adjudications of this court.
But it is insisted that we should take into consideration the fact that at the time this lease
was dated and seems to have been made the respondent was already doing a general business in violation of the law and that the subject-matter of the lease was in furtherance of that business and it was therefore in violation of the law and void. We will, therefore, for the present purpose only, assume that, although the respondent had for years occupied the same building as the tenant of the same lessor, the lease was not only made on the date of its date but that it entered under it on the first day of January, 1902, the date appointed in the instrument, and maintained its office there until it received its certificate on the 13th of the same month. It also continued to hold the same premises under the same lease during the succeeding five years and up to the time of the service upon it by appellant of the notice to quit which laid the foundation of this action. The presumption is that during that time it paid the monthly installments of rent when due, and the evidence is that it continued to tender the same on the date of payments fixed in the lease, each month up to the time of the trial. During all this time its certificate was a matter of public record and there is no claim that the lessor did not have independent knowledge of its existence. Having, through all those years received its benefits upon the theory of its validity, he will be held by his ratification to have supplied the only element necessary to complete it at a time when the respondent was competent to take under its provisions. This effect follows whether it was void or only voidable, and the parol ratification gives effect to the written instrument according to its terms. [Austin v. Loring. 63 Mo. 22; Clyburn v. McLaughlin, 106 Mo. 521; Hartman v. Hornsby, 142 Mo. 368; Ansonia v. Cooper, 66
Conn. 184; same case, 64 Conn. 536; 21 Smith's Leading Cases (5 Am. Ed.), 662.]
It follows that the judgment on the verdict must be and is affirmed.
PER' CURIAM.-The foregoing opinion of BROWN, C., is adopted as the opinion of the court. All the judges concur.
WOODSON, P. J.--I concur in all of the opinion written by our learned commissioner, in this case, except that part which treats of the alleged ratification of the lease by the appellant.
The ratification of a contract, which is absolutely prohibited by statute, will no more be recognized and enforced by the courts of this State, than they would recognize or enforce the contract itself. [United Shoe Machinery Co. v. Ramlose, 231 Mo. 509, 1. c. 531 to 541, and cases cited. ]
All contracts absolutely prohibited by statute rest upon precisely the same foundation that contracts involving fraud and immorality do. The courts will leave the parties thereto in the position in which they have thereby placed themselves. [See case previously cited.]
But independent of the ratification, the opinion, in my judgment reaches a proper conclusion, and for that reason, I also concur in the result thereof.
Effect of. Under the law an agreed statement takes the place of
formal pleadings. It is presumed to contain all the facts upon
which each party relies to sustain his contention. And the
court cannot enlarge it by judicially knowing, or adding to it,
facts which if they existed, ought to have been made a part of
it. Folk v. St. Louis, 116.
Court of Appeals:
flict in Decisions. The Constitution says that "when any one
of said courts of appeals shall in any cause or proceeding render
a decision which any one of the judges therein sitting shall deem
contrary to any previous decision of any one of said courts of
appeals" the cause shall be transferred to the Supreme Court;
and that means that it is wholly immaterial whether or not such
conflict does in fact exist, if one of the judges of the Court of
Appeals deems it to exist. Wherever one of the judges believes
a conflict exists between a decision rendered in a case properly
appealed to the Court of Appeals and a decision rendered by
another Court of Appeals, it is the duty of the Court of Appeals
to transfer the case to the Supreme Court, and after such
transfer the Supreme Court has jurisdiction. Epstein v. Rail-
road, 1.
2. Rule Governing Civil Cases Applicable to Criminal.
Appeals in criminal cases are governed by appellate procedure
in civil cases, unless there exists some special provision in the
criminal code prescribing a different rule. [Following State v.
Pieski, 248 Mo. 715.] State v. Short, 331.
3. When Perfected. An appeal in a criminal case, as in
a civil case, is not perfected until the appellant files with the
clerk of the appellate court a complete transcript of the record
proper and a certified copy of the bill of exceptions (unless the
appeal is based on some error in the record proper), or, in lieu
of such transcript, a copy of the judgment appealed from and a
copy of the order granting the appeal. Ib.
: Within One Year: Not Regulated by Filing
Bill of Exceptions. Where the appeal was granted on October
31, 1911, and the bill of exceptions was approved and filed in
the trial court on January 7, 1912, and the transcript was not
filed in the appellate court until January 3, 1913, the appeal
was not perfected within one year from the date it was granted,
as required by Sec. 5313, R. S. 1909; and, the delay not having
been shown to be the fault of the clerk, etc., the appeal is dis-
missed. Ib.
5. —: Excuse. If the appellant's failure to perfect
his appeal within one year after it is granted is the fault of the
clerk of the trial court in not preparing the transcript in a
timely manner, or the fault of any person other than appellant
or his attorneys, such fact might furnish a ground for overruling
the motion to dismiss; but the burden is on appellant to show
such excuse, and where there is no such showing it will be
assumed that no such excuse exists. State v. Short, 331.
6. Governed by Statute. The right to an appeal from
a judgment of conviction in a court of general common law
jurisdiction did not exist at common law, but is purely statu-
tory, and the Legislature may grant, restrict or withdraw the
right as its discretion prompts, in either criminal or civil
cases. State v. Leonard, 406.
7. Not Timely Perfected: Mandatory Statute. The stat-
ute (Sec. 5313, R. S. 1909) providing that in any felony case
other than where the penalty is death, the appeal shall be per-
fected within twelve months from the time it was granted, and
that upon appellant's failure to so perfect it, the appellate court,
upon motion, shall dismiss such appeal, unless the appellant
shall show good cause for not having sooner perfected it, is
mandatory in its terms, and the court is limited in its enforce-
ment to a dismissal unless the appellant show good cause for the
delay beyond the twelve months. Ib.
: Section 5312 Not Applicable. Section 5312,
Revised Statutes 1909, dispensing with assignments of error,
and requiring the Supreme Court to proceed upon the return of
an appeal or writ of error in a criminal case to speedily hear
and determine the same upon the record, has no application
when the appeal has not, without excuse, been perfected within
twelve months after it was granted. Ib.
This Case. Where the appellant was con-
victed in the circuit court of setting up and keeping a gambling
device, and an appeal was allowed to the Supreme Court on
December 9, 1910, and the transcript was filed with the clerk on
March 6, 1913, the appeal was not perfected within one year
after it was granted; and a motion to dismiss, after proper and
timely notice thereof to appellant, and no showing is made by
him why it was not sooner perfected, is sustained. Ib.
10. Bill of Exceptions: Not Reviewable When Motion
New Trial not in Record. Where the bill of exceptions shows
a direction to the clerk to copy the motion for a new trial, but
the motion is copied neither in that part of the record desig.
nated as the bill of exceptions nor in that portion of the tran-
script known as the record proper, there is nothing before the
Supreme Court for review except the record proper. State v.
Delaney, 409.
11. Swearing Jury: Not Shown by Record. Where the record
proper fails to show that the jury was sworn to try the cause,
the case will be reversed and remanded. Ib.
12. Sufficiency of Evidence: Attitude of Appellate Court.
Before the Supreme Court will reverse a judgment on the ground
that the verdict is not supported by the evidence, there must be
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