Defendant makes the point that the trial court erred in affirming the judgment of the justice of the peace.
In opposition, it is contended by the plaintiff that the defendant, not having made the objection, now presented by him, in his motion to set aside the judgment of affirmance, must be deemed to have waived such objection ; and, in addition thereto, that it does not appear affirmatively from the record that the • circuit court affirmed the judgment of the justice, instead of rendering a judgment of its own after a trial had.
I.
It is true that “all exceptions, not brought to the attention of the trial court in a motion for a new trial, are deemed waived.” McCord v. Railroad, 21 Mo. App. 96, and cases cited; Fox v. Young, 22 Mo. App. 388; Blakely v. Railroad, 79 Mo. 388; Carver v. Thornhill, 53 Mo. 285. This rule, however, applies to only what is matter of exception, and not to what is matter of error, apparent on the face of the record. The distinction between matter of exception and matter of error is made by our practice act. Section 3774, Revised Statutes, applies to matter of exception, and section 3776 to matter of error of record. Bateson v. Clark, 37 Mo. 34. *478Section 3776 requires this court to “examine the record .and award a new tria], reverse or affirm the judgment or decision of the circuit court, or give such judgment as .such court ought to have given, as shall seem agreeable to law.”
It has been held that, under the provisions of said section 3776, if there is any error apparent on the face of the record it is' the duty of the appellate court to consider the error, ‘ ‘ whether any exceptions were taken or not.” Bateson v. Clark, supra. In Witherall v. Harris (51 Mo. 57), it was said, Bliss, J., delivering the -opinion of the court: “ So a motion [for new trial] is necessary to enable us to examine into the errors that were committed at the trial; but if the pleadings and judgment sufficiently show the language of the will, we may review the construction given it by the court, and, if erroneous, the judgment cannot be sustained.” The rule, as stated in Bateson v. Clark, has been approved in State ex rel. v. Griffith (63 Mo. 548), and Pelz v. Eichele (62 Mo. 178). In Sweet v. Maupin (65 Mo. 70), :all the 'prior decisions in this state on the subject were reviewed and the conclusion reached that the appellate court “should review the action of the lower courts, in the absence of appropriate motions, only where the defect, ‘apparent on the face of the record,’ is fatal in its character.” This subject was discussed by the Supreme Court last in McIntire v. McIntire (80 Mo. 473). In the words of Martin, C., who delivered the opinion in the last named case, “It maybe safely asserted that the appellate court will reverse for fatal error, apparent on the face of the record, although no motion in arrest or for review has been made.”
II.
The suggestion made by the plaintiff, that it does-not affirmatively appear from the record that the circuit court affirmed the judgment of the justice, instead of *479Tendering a judgment of its own, after a trial had, is not well made. The record shows that the defendant, “failing to appear and prosecute his appeal, and on motion of plaintiff, the judgment of the justice of the peace, rendered herein on the twenty-ninth day of July, A. D., 1885, for the sum of one hundred and fifty dollars, is by ■the court affirmed.” It is thus affirmatively made to .appear that the circuit court, without trial, on motion of the plaintiff, affirmed the judgment of the justice of the peace.
III.
The facts on which the defendant bases his objection -to the judgment of the circuit court are apparent of xecord. If it was error for the court to render the judgment, the error is material ; it is not merely an error as -to form, but it goes to the very power and jurisdiction ■of the court. The objection is not made to the form of the judgment, but is made to the power of the court to .render the particular judgment.
That the circuit court, at the return term of - the appeal, can only try the case de novo, or continue it' to the next term of the court, at the election of the appellee, he having entered his appearance on or before the second •day of said term, and cannot affirm the judgment of the justice of the peace is not now an open question. Priest v. Railroad, 85 Mo. 523.
The judgment is reversed and the cause remanded.
All concur.