concurring.
The continued viability of Vonsmith:
The present disposition of this case necessarily reaffirms the principle that “a default judgment is not appealable in the absence of a motion to set aside or vacate.” Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984). See also Andrew County v. Owens, 46 Mo. 386, 388 (1870); Blackmore v. Blackmore, 639 S.W.2d 268, 269 (Mo.App.1982). While there is a lack of unanimity on the issue, this is the rule in numerous jurisdictions: “an appeal * * * will not lie in the first instance to reverse a judgment * * * entered against a party * * on his default, but the remedy, * * * is by application to the lower court for correction or setting aside of the entry.” 4 C.J.S. Appeal & Error, § 155 (1957). See, e.g., Montalvo v. Key Industries, 98 A.D.2d 767, 469 N.Y.S.2d 482 (1983); Collins v. Kerstiens, 30 Mich.App. 633, 186 N.W.2d 847 (1971); Belue v. Belue, 276 S.C. 120, 276 S.E.2d 295 (1981).
The rationale for this rule is clear. In the absence of a motion to vacate or set aside filed in the trial court, there can be nothing before the appellate court which could suggest that the trial court erred in its application of the law to the facts. Adel v. Parkhurst, 681 P.2d 886, 889 (Wyo.1984). The trial court “cannot be said to have committed an error when * * * [its] judgment was never called into exercise, and the point of law was never taken into consideration * * *. To assume the discussion and consideration of a matter of law, which the party would not discuss in the [trial court], and which that court, therefore, did not consider, is to assume, in effect, original jurisdiction.” Vonsmith, 666 S.W.2d at 424, quoting Gelston v. Hoyt, 13 Johns. 561, 566-67 (N.Y.1816). See also, Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982); Bunting v. McDonnell Aircraft Corp., 522 S.W.2d 161, 168 (Mo. banc 1975); Stahlheber v. American Cyanamid Co., 451 S.W.2d 48, *36161 (Mo.1970); Robbins v. Robbins, 328 S.W.2d 552, 555 (Mo.1959).
The dissent emphasizes language in § 512.020 that appeal may be taken from “any final judgment in the case.” In doing so, it apparently overlooks the requirement contained therein that such appeal must be “to a court having appellate jurisdiction.” (Emphasis added.) In this State, it is an indispensable statutory prerequisite that all allegations of error be presented in the first instance to the lower court for consideration. § 512.160.1, RSMo 1978. There is no doctrine better settled than that the right of appeal is purely statutory and, therefore, when our statutes do not confer such a right, it does not exist. Kansas City Power & Light Co. v. Kansas City, 426 S.W.2d 105, 107 (Mo.1968); Walker v. Thompson, 338 S.W.2d 114, 115, 116 (Mo.1960), Snoddy v. County of Pettis, 45 Mo. 361, 362 (1870). Simply stated, if an appeal is not authorized by statute, an appellate court has no jurisdiction of the cause. Martin v. Martin, 534 S.W.2d 621, 625 (Mo.App.1976); Powell v. Watson, 516 S.W.2d 51, 52 (Mo.App.1974); Hays v. Dow, 237 Mo.App. 1, 7, 166 S.W.2d 309, 312 (1942). No statute provides an appellate court jurisdiction over a default judgment for which the trial court has not ruled on a motion to vacate or set aside the judgment. Accordingly, no appeal may lie from such a judgment, despite its finality.
As we noted in Vonsmith, the presentation of questions of law in the first instance to the trial court goes to “the very theory and constitution” of appellate jurisdiction and is an inherent ingredient in the right of appeal. 666 S.W.2d at 424. The rulemaking power of this Court does not extend to changing the law relating to the right of appeal. Mo. Const, art. Y, § 5. For this reason, contrary to the views expressed in the dissent, this Court cannot “modify” by rule the jurisdictional parameters set forth in § 512.160.1. See State ex rel. State Highway Commission v. Armacost Motors, Inc., 502 S.W.2d 330 (Mo.1973); Moreland v. State Farm Fire & Casualty Co., 620 S.W.2d 24 (Mo.App.1981). Nor was that the intent of the “plain error” rule. Rule 84.13(c). The “plain error” rule authorizes appellate courts to consider errors not raised or preserved in coses which otherwise fall within their appellate jurisdiction. See, e.g., Highfill v. Brown, 320 S.W.2d 493, 497-498 (Mo.1959); Rasco v. Rasco, 447 S.W.2d 10 (Mo.App.1969). Jurisdiction must be established by questions preserved for review and not merely by errors present in the record. Winslow v. Sauerwein, 365 Mo. 269, 271-272, 282 S.W.2d 14, 16 (1955); State v. Brown, 446 S.W.2d 498, 499 (Mo.App.1969). Plain error review of questions of law arising in a default judgment proceeding would accordingly require that a timely motion to vacate or set aside the judgment have been filed in the trial court to establish appellate jurisdiction. See Aetna Casualty & Surety Company v. Dickinson, 216 Neb. 660, 345 N.W.2d 8 (1984).
The assessment of damages without notice:
In Missouri, when a defendant is in default for failure to make an appearance, the truth of allegations of the petition constituting plaintiff’s cause of action is deemed to be admitted. Smiley v. Cardin, 655 S.W.2d 114, 117 (Mo.App.1983). Nevertheless, where, as here, damages are unliquidated, a default is not an admission of damages. Fawkes v. National Refining Co., 341 Mo. 630, 108 S.W.2d 7, 10 (1937); Electrolytic Chlorine Co. v. Wallace & Tiernan Co., 328 Mo. 782, 41 S.W.2d 1049, 1052 (1931). A defendant in such a situation has the right “to be heard and participate in the trial on the question of damages and * * * minimize the damages or defeat the action by showing that no damages were caused to plaintiff by the matters alleged.” Electrolytic Chlorine Co., 41 S.W.2d at 1052. In my view, since such a defendant is entitled to be heard on the issue of damages, notice of the plaintiff’s intent to have damages assessed should be required.
Authorities are not unanimous on the general question of whether a defendant is entitled to notice of a hearing to assess *362damages following his default. See generally, Annot., 15 A.L.R.3d 586 (1967); 25A C.J.S. Damages § 170 (1966). The rationale for not requiring notice is that a properly served defendant has been given adequate notice to allow an intelligent decision on whether to appear or default, knowing that the judgment cannot exceed the demand in the complaint. R.R. Gable, Inc. v. Burrows, 32 Wash.App. 749, 649 P.2d 177, 180 (1982). This fits with the general rule on admissions by default: the default admits the plaintiff’s entitlement to those damages that can be determined with exactness from the cause of action as pleaded. Bowman v. Kingsland Development, Inc., 432 So.2d 660 (Fla.App. 5 Dist.1983).
However, where, as here, the prayer has been for only such damages as are fair and reasonable, damages cannot be determined with exactness, and defendant has not been given adequate notice to allow an intelligent decision on the damage issue of his default. See Elfman v. Evanston Bus Co., 27 Ill.2d 609, 190 N.E.2d 348 (1963). In that circumstance, Rules 43.01(a) and 74.09 should be amended to require notice to the defaulting party prior to the determination of damages. Of course, because such amendments would not take effect until six months after their publication, Mo. Const, art. V, § 5, they would not apply in this case.
I concur.