dissenting.
I believe that this case should be retrans-ferred to the Court of Appeals with directions to consider the merits of the appeal from the initial judgment under the “plain error” standard of Mo.S.Ct. Rule 84.13(c). The Court of Appeals dismissed the direct appeal from the final judgment under the compulsion of Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984), after retransfer 666 S.W.2d 426 (Mo.App.1984). I believe that Vonsmith was improperly decided and should be overruled, for the reasons set out in Part I of this dissent. I rely on matters which were neither briefed nor thoroughly argued when Vonsmith was before us.1
I.
As this Court pointed out in State v. Lynch, 679 S.W.2d 858 (Mo. banc 1984) the right of appeal is purely statutory. There the Court held that no appellate review was possible even though a criminal conviction had indelible consequences, because the trial court had not exhausted its full power in the premises. In Vonsmith and in the principal opinion the Court desists in cases in which appellate jurisdiction is clearly present under the governing statutes. The duty to decide an appeal within our statutory jurisdiction is fully as important as the duty to desist from ruling a case which is not appealable.
Section 512.020, RSMo 1978 provides in pertinent part as follows:
Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from ... any final judgment in the case_ (Emphasis supplied)
Nothing in the statute indicates that it is not applicable to a judgment by default.
Section 512.050, RSMo 1978 provides in pertinent part as follows:
No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final....
Section 512.060, RSMo 1978, however, authorizes an untimely appeal by special leave of the appellate court within six months after the judgment becomes final.
Our Constitution, in granting authority to this Court to establish “rules of practice and procedure” which modify procedural statutes, (Art. V, Sec. 3), specifically exempted changes affecting the “right of appeal.” It follows that we may not achieve the same result by decision. Under the legislature’s firm direction, then, the appeal from the $300,000 judgment was before the Court of Appeals for decision. The dismissal of the appeal represents abdication of judicial power clearly conferred.
Courts and lawyers have been prone to say, somewhat carelessly, that an appellate court has “no jurisdiction” over issues sought to be raised on appeal if those matters have not been presented to the trial court for decision.2 Section 512.160.1, RSMo 1978, initially adopted as a part of *364the Civil Code of 1943,3 has sometimes been relied on in support of the “no jurisdiction” claim. That section reads as follows:
1. Apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of pleadings to state a claim upon which relief can be granted or a legal defense to a claim, no allegations of error shall be considered in any civil appeal except such as have been presented to or expressly decided by the trial court.
That section demonstrates that the “no jurisdiction” assertion is not accurate. The section contains exceptions to the requirement of presentation to the trial court. The Court of Appeals, in Vonsmith, applied one of three exceptions in reversing a part of the judgment because relief was afforded in excess of the demands of the petition. Section 512.160.1 does not divest the appellate court of its jurisdiction, but rather directs the manner in which jurisdiction should be exercised.
Soon after the adoption of the Civil Code of 1943 the Court, on November 10, 1944, adopted a “harmonizing rule”, then numbered 3.27, reading as follows:
Plain errors affecting substantial rights may be considered on motion for new trial or on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifests injustice or miscarriage of justice has resulted therefrom.
This rule continues in force as the present Rule 84.13(c). There is nothing in the text of the rule which excludes default judgments from its compass. In fact, there are cases to the contrary in which plain error has been found in the award of damage to the plaintiff on a 74.10 hearing, following default.4 None of these cases was cited in Blackmore v. Blackmore, 639 S.W.2d 268 (Mo.App.1982), heavily relied on in Vonsmith, or in the two Vonsmith opinions. In Riley v. White, 231 S.W.2d 291 (Mo.App.1950), the St. Louis Court of Appeals reversed the damage portion of a default judgment, in which there was no indication that a motion to set the judgment aside had been filed in the trial court, and in which the point was not even raised in the defendant’s brief on appeal. The opinion reads as follows:
As sometimes happens in trials by default, the evidence as to the second count appears to have been presented hurriedly and without proper regard for its probative value to prove the issues being tried. The practice should be exactly the opposite. Where a party seeks a judgment against another who is in default and not represented by counsel, he should proceed with even more care than usual to see that all requirements of the law are met. This for the very reason that the other side is not represented.
Moreover, we are of the opinion that Supreme Court Rule No. 3.27 was made to be utilized in just such a situation as we have before us. That rule provides that plain errors affecting substantial rights may be considered on appeal in the discretion of the court although not raised in the trial court nor preserved for review ‘when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.’ The principle underlying the above rule was applied by our Supreme Court prior to the adoption of said rule although it was accompanied by warnings of caution in its application. See State ex rel. Alton R. Co. v. Shain, 346 Mo. 681, 143 S.W.2d 233.
The damage portion of a default judgment was also reversed in Sumpter v. J.E. Sieben Construction Co., 492 S.W.2d 150 (Mo.App.1973). The court held that the plaintiff in a default situation did not have to prove the factual allegations of his *365pleading, but drew a distinction as to the damages which were proved in the Rule 74.10 hearing. To the same effect is Decker v. J.E. Sieben Construction Co., 492 S.W.2d 155 (Mo.App.1973) decided the same day.
Finally, in Smith v. Sayles, 637 S.W.2d 714 (Mo.App.1982) the Court of Appeals, Western District, citing Riley v. White, supra, reversed the damage portion of a judgment entered by default and remanded the case for further hearing. The opinion states at p. 718:
It is error to return damages not supported by evidence.... To allow the $60,000 award for actual damages to stand on the sparse proof would be a manifest injustice_ That the judgment was by default does not excuse the legal requirement that probative evidence sustain the adjudication of the un-liquidated claim for damages. Riley v. White, 231 S.W.2d 291, 298[11-12] (Mo.App.1950).
The authority adduced in Vonsmith is scanty indeed, when posed opposite the cases just cited. Our opinion cites only the ancient case of Gelston v. Hoyt, 13 Johns. 561 (N.Y.1816), which was handed down under a practice far different from ours, and in which the appellate court affirmed the judgment of the trial court rather than dismissing the appeal. The Court of Appeals in Vonsmith relied primarily on its own sketchy opinion in Blackmore, which did not consider the analysis detailed above or any of the pertinent cases here cited. Because the Missouri statutes and rules are so clear, cases from other states have minimal value. Even so, authorities holding that an appellate court “lacks jurisdiction” over an appeal from a default judgment are extremely rare.5
Section 512.160.1 has been literally copied into Rule 84.13(a) and former Rule 3.27 is now Rule 84.13(c). We of course may modify statutes pursuant to Art. V, Sec. 5, of the Missouri Constitution, and the rule will prevail over the existing statute. Here there is no conflict and it is patent that the Court of Appeals has jurisdiction to exercise the discretion conferred upon it by Rule 84.13(c).
The principal opinion makes much of the defendant’s failure to move to vacate the final default judgment. At the time the defendant was alerted to the judgment, the 15-day period for filing a motion to set the judgment aside had expired. Rules 73.-01(a)(3); 78.04. No motion to vacate could then be filed.6 An appellate court might impose sanctions on a party who appealed while there was time to file a motion in the trial court, but this defendant had no such opportunity. The “backdoor appeal” provisions of § 512.060, and the “plain error” rule recognize that there may be occasions for aiding a party who has been negligent.7 The matter is one of discretion.
It is the sense of Rule 74.10, that the trial judge act judicially in assessing damages at a unilateral hearing following de*366fault, rather than rubber stamping the plaintiff’s demands. There is no reason why this action should not be scrutinized under the plain error rule if a lawful appeal is filed.
The principal opinion simply accepts Vonsmith as law, uncritically. I have given careful attention to the attempt in the concurring opinion to bolster Vonsmith and find it a masterpiece of circularity. If § 512.160.1 is jurisdictional as to any point not presented to the trial court, it is jurisdictional as to all which, on the basis of authorities here cited, it clearly is not. The short answer to the citation of Art. V, Sec. 3 in support of the assertion that court rules may not enlarge the right of appeal is that the plain error rule (then 3.27, now 84.13(c)) was in place when the Constitution of 1945 was adopted. Cases directly in point are cited in this opinion; those cited in the concurrence are not applicable. To the cases in point may be added Green v. Green, 623 S.W.2d 265 (Mo.App.1981), in which the court refused to review the issue of liability in a default judgment, but did remand for further findings on the division of property. Had the Court of Appeals followed its own precedents, Vonsmith probably would have been decided differently and would never have reached this Court. It is unfortunate that, on the basis of inadequate presentation and inadequate research, we perpetuate a decision which deprives the appellate courts of effective discretion in doing justice.
II.
The Court of Appeals, bowing to Von-smith, held that it was without jurisdiction to entertain a direct appeal from the judgment but found that the judgment was so lacking in evidentiary support as to demonstrate “irregularities” correctable on motion under Rule 74.32.8 The principal opinion holds, in accordance with established doctrine, that the defendant’s motions, variously named, were not properly filed in the trial court because the case was on appeal at the time, and that the trial court was without jurisdiction to entertain any kind of motion in the case. Inasmuch as it then goes on to rule the issue, I express my views also.
I have already commented on the rigidity of the motion to set aside a default. The limitation of the irregularity remedy as set out in the principal opinion has substantial support in the case law, but the text of Rule 74.32 contains no such limiting language. If we are to adhere to Vonsmith I believe that the concept of irregularity should be enlarged so as to cover the serious disregard of Rule 74.10.9 I would allow the trial court to review the transcript of the hearing on default, to determine whether the default judgment is minimally supportable. The use of Rule 74.10 for this purpose would have the advantage of affording a hearing, which the plain error rule does not, and might be a more efficient judicial tool.
III.
It has been suggested that some form of notice of the hearing on damages following interlocutory judgment of default should be afforded, and that the failure to do so has constitutional dimensions. The principal opinion responds with the proposition that no notice to a party in default is required. See Rule 43.01(a). If Vonsmith is to stand the Court should give consideration to a rule requiring either notice of a hearing on a default judgment to assess damages, or notice of the entry of final judgment by default, so that a timely motion to set aside may be filed. Only a reasonable attempt at notice, as by mailing to the last known address, should be necessary. If this is undertaken, it should make no difference if the attempt at notice does not reach the defaulting party. A require*367ment of notice would provide some check on the arbitrary action of a trial judge.
Notice is perhaps more important in a case like this, in which there is no explicit prayer for damages because of Rule 55.05, adopted to comply with Laws of 1976, p. 837, H.C.S.H.B. 1307. It is hornbook law that relief on default may not exceed that prayed for in the petition. See Rule 43.-01(a). Rook v. John F. Oliver Trucking Co., 505 S.W.2d 157 (Mo.App.1973). The lack of notice presents a problem of particular concern when the defendant does not really know what he is up against until he learns of the final judgment entered.
IV.
I believe that Judge Welliver has astutely perceived the practical problems attending the uncritical upholding of default judgments, and I join in his dissenting opinion.
The panel of the Court of Appeals which heard the case was of the opinion that the final judgment was seriously at fault. We have the authority to decide the entire case and to apply the plain error rule, 84.13(c), if persuaded that it should be applied. I believe, however, that it is preferable to re-transfer the case to that court, which, having been instructed as to the scope of its appellate jurisdiction, may scrutinize the record and apply the discretion embodied in the “plain error” rule, if it finds fault in the judgment sufficient to meet the very high standards of that rule. Whether the concept of “irregularities” applied by the Court of Appeals is more or less restrictive than the concept of “plain error” should likewise be for the Court of Appeals. But it is inappropriate for us either to dismiss the appeal or affirm the judgment, in view of the Court of Appeals’ reservations.
. The parties to Vonsmith did not brief the question of "jurisdiction” of the Court of Appeals over an appeal from a default judgment. The issue was injected into the case by the majority and concurring opinions in the Court of Appeals, and was not briefed when the case was before us.
. Most cases simply say that points not properly preserved are "not before us." Lincoln Credit Co. v. Peach, 636 S.W.2d 31 (Mo. banc 1982); Bunting v. McDonnell Aircraft Corp., 522 S.W.2d 161 (Mo. banc 1975); Stahlheber v. American Cyanamid Co., 451 S.W.2d 48 (Mo.1970); Robbins v. Robbins, 328 S.W.2d 552 (Mo.1959).
. Laws of 1943, p. 353, 395, § 140.
. See Riley v. White, 231 S.W.2d 291 (Mo.App.1950); Sumpter v. J.E. Sieben Construction Co., 492 S.W.2d 150 (Mo.App.1973); Decker v. J.E. Sieben Construction Co., 492 S.W.2d 155 (Mo.App.1973); Smith v. Sayles, 637 S.W.2d 714 (Mo.App.1982).
. A review of cases from other jurisdictions supports the proposition that an appellate court is not divested of jurisdiction to consider an appeal from the default judgment itself. See Siebert Oxidermo, Inc. v. Shields, 446 N.E.2d 332 (Ind.1983); Ney v. Polite, 399 A.2d 527 (Del.1979); Vogel v. Roberts, 202 N.W.2d 387 (N.D.1972); Byrer v. Robbs Trust Company, 105 Ariz. 457, 466 P.2d 751 (1970); Williams v. Kansas State Highway Commission, 194 Kan. 18, 397 P.2d 341 (1964).
. See L.J. Ross, Co. v. Vaughn, 683 S.W.2d 643 (Mo.App.1984), in which the court holds that a motion to vacate filed more than 15 days but less than 30 days after judgment is sufficient to vest jurisdiction even though not ruled upon within 30 days of the date of judgment.
.There are indications in the file that the defendant denied receiving the summons or knowing about it and that it was served on another person in his office who failed to give it proper attention. By established Missouri law the court could not look behind this return, Williamson v. Williamson, 331 S.W.2d 140 (Mo.App.1960); Johnson v. Wilson Estate, Inc., 256 S.W.2d 297 (Mo.App.1953), even though service on an employee would not be in compliance with Rule 54.13(a)(1). It is interesting that under present Rule 54.22, modified under the compulsion of Laws of 1984, H.B. 947, § 1, p. 792, effective August 13, 1984, the return is only "prima facie” evidence of the facts stated. The principal opinion imposes a severe penalty for vicarious negligence.
. Rule 74.32 reads as follows:
Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the rendition thereof.
. I refrain from expressing any view as to the correctness of the Court of Appeals' conclusion about the evidence.