SEP ABATE OPINION.
Babolay, J.— My dissent relates to some .of tbe points of practice involved. They appear of importance enough to justify a few words of comment.
The action is an ordinary one on an official bond. Tbe last judgment of tbe circuit court was in favor , of defendants. The plaintiff then moved for new trial and in arrest, but tbe motions were overruled. What they contained we know not, or whether any exception was taken to tbe final disposition of them. There is no bill of exceptions preserving them or any of tbe evidence at any of the bearings.
The opinion of tbe majority of this division reviews tbe record proper and reverses tbe last judgment, *33because the so-called “ bill in review” ( upon which the first judgment was. vaca ted) is considered insufficient. It is held that it does not state facts sufficient to warrant-the trial court in setting aside the original judgment for plaintiff.
The “ bill in review ” was filed in a subsequent term to that at which the first judgment was entered. It was essentially a new proceeding, the object of which was to-get rid of the prior adjudication. It was met by an “answer” on the part of the county. A hearing-followed, and the relief asked in the “bill” was granted. No motion to set aside that result was made, or exception taken.
After the first judgment was thus opened, the original cause proceeded. The defendants answered the-petition, and, on issues so made, a trial was had and the last judgment in the case reached. That conclusion is to be reversed, for the reasons assigned by my learned associate. Without adverting to any other questions-that may suggest themselves, it seems to me that the ruling announced is a misinterpretation of the law in regard t-o the proper functions of this court.
In a case like this, our jurisdiction is strictly appellate,- under the constitution. If the trial court had jurisdiction to render the judgment it assumed to pronounce, this court should not, in a civil case, reverse its action upon any point not brought to the attention of that court. This seems .to me the plain meaning- and,, certainly, the spirit of the code of civil practice. R. S. 1889, secs. 2302, 2114.
In criminal cases the range of review may be somewhat wider. R. S. 1889, sec. 4297. We need not digress to state the reasons for this difference as we are concerned now with the practice in civil cases only.
That a pleading does not state facts sufficient to constitute a cause of action or defense should not, in my opinion, be regarded as a- ground for reversal, *34unless the point was made in the trial court and erroneously ruled there.
It may be that the facts, omitted in the pleading, were supplied by evidence, admitted without objection at the trial. If so, the failure to allege them could not possibly constitute an error to the prejudice of the substantial rights of the adverse party. R. S. 1889, secs. 2100, 2303.
If facts, not at first alleged, were thus proven, it would be entirely proper for the trial court to allow them to be added to the pleading by amendment at the hearing under our statute of jeofails. R. S. 1889, secs. 2098, 2014. But if the adverse party, expressly, or by a course of conduct at the trial, waived the necessity of such an amendment, would it be just to hear him, on appeal, to urge that, without the amendment, the pleading is radically defective?
It has been sometimes remarked that errors on the face of the record proper are reviewable here without a bill of exceptions. That notion is traceable to impressions derived from a study of the ancient practice at common law; but, as above expressed, the statement is far too sweeping as applied to civil actions under our code. Some errors, no doubt (as, for example, those involving a total want of power to pronounce the judgment given), may be rectified, on appeal or error, without motions or exceptions in the trial coui’t; but-many cases demonstrate that every error in the record proper is not necessarily a ground for reversal.
Even under the English practice it was said that “a writ of error lies for some error or defect in substance that is not aided, amendable or cured at common law, or by some of the statutes of amendments or jeofails.'''’ 2 Tidd’s Prac. [3 Am. Ed.] p. 1136.
The want of a material averment in a pleading, if filled, for instance, by admission of the fact by the adversary at the trial, or by uncontested proof there, is *35surely amendable (as has been already shown) under our statutes, and, hence, would not form a proper subject for a reversal even upon common-law principles.
The Missouri precedents to the same general purport need not all be cited. A few will be mentioned to indicate their drift.
It has been held that a failure to reply to an affirmative answer does not warrant reversal where the case has been tried, as though a reply were in. See cases cited in Reed v. Bott (1889), 100 Mo., at page 69.
And in cases where essential amendments to pleadings were permitted at the trial, but never, in fact, were made, though the proceedings went on without objection, it has been ruled, on appeal, that the incomplete state of the issues gave no good cause to reverse. Merrill v. St. Louis (1884), 83 Mo. 244; Young v. Glascock (1883), 79 Mo. 574.
But suppose such a case came here on the record proper, showing a judgment unsupported by a paper issue, would it not be quite as correct to reverse for that reason as in the case at bar % If the absence of a paper basis for a judgment is immaterial in the one instance, why not in the other \
This court has held that a general verdict, in a case-presenting several distinct causes of action, furnished no reason for a reversal where the error was not called to the notice of the trial court by timely motion. Sweet v. Maupin (1877), 65 Mo. 65; Henry v. Lowe (1880), 73 Mo. 98.
The theory of our procedure is to require parties to develop their legal positions fully in the court of first instance, and every reasonable intendment is usually made to support the action of the latter. In my opinion the insufficiency of a pleading to support a judgment, which such court had power to render, should be no basis for a reversal here unless distinctly' made a point of objection there.
*36This view of the proper scope of appellate review prevails in New York state under a code which ours resembles. Delaney v. Brett (1872), 71 N. Y. 78.
The success of the reform in pleading and practice, which our code of civil procedure was intended to secure, must depend, in great measure, on the interpretation which the courts give to its provisions. They should be read and applied in the spirit in which they were framed and which finds, perhaps, its most terse expression in section 2117 (R. S. 1889). It does not seem to me in harmony with that spirit to reverse the judgment of a court, having full jurisdiction to act in the premises, for reasons which may never have been suggested to that court. The code has always appeared to me designed to dispense with such unpleasant surprises to litigants in an appellate court.
It is a matter of regret to me that my brethren hold .a different opinion. But my convictions on the subject .are so firmly grounded that it has seemed proper to thus express them.