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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : CIVIL PROCEDURE AND LIMITATIONS
Chapter : Chapter 509 Pleadings
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There shall be a petition and an answer; and there shall be a
reply if the answer contains a counterclaim denominated as such; an
answer to a cross-claim, if the answer contains a cross-claim; a
third-party petition if leave is given to summon a person who was not an
original party; and there shall be a third-party answer, if a third-party
petition is served. No other pleading shall be required except that the
court may order a reply to an answer or a third-party answer. (L. 1943 p.
353 § 32)
Every pleading shall contain a caption setting forth the name of
the court, the title of the action, the file number, and a designation as
in section 509.010. In the petition the title of the action shall include
the names of all the parties, but in other pleadings it is sufficient to
state the name of the first party on each side with an appropriate
indication of other parties. (L. 1943 p. 353 § 33)
Every pleading of a party represented by an attorney shall be
attributed to at least one attorney of record in his individual name,
whose address shall be stated. A party who is not represented by an
attorney shall affix his name to his pleading and state his address.
Except when otherwise specifically provided by rule or statute, pleadings
need not be verified or accompanied by affidavit. Pleadings shall be
attributed to a party or attorney or signed in the manner provided by
supreme court rule. Any statutory requirement that pleadings be signed by
any person shall be satisfied by compliance with such rules. Any
statutory requirement that pleadings be acknowledged under oath, verified
or notarized may be satisfied by a declaration that the pleading is made
under penalty of perjury. (L. 1943 p. 353 § 34, A.L. 1997 S.B. 248)
Each averment of a pleading shall be simple, concise, and
direct. No technical forms of pleading or motions are required. (L. 1943
p. 353 § 35)
1. A pleading which sets forth a claim for relief, whether an
original claim, counterclaim, crossclaim or third-party claim shall
contain:
(1) A short and plain statement of the facts showing that the pleader is
entitled to relief; and
(2) A demand for judgment for the relief to which he deems himself
entitled. The prayer for relief need not include a request for
prejudgment interest otherwise properly allowable under subsection 2 of
section 408.040, RSMo. If a recovery of money be demanded, no dollar
amount or figure shall be included in the demand except to determine the
proper jurisdictional authority, but the prayer shall be for such damages
as are fair and reasonable. The provisions of this section shall not
affect the conduct of trial with regard to stating, proving, or arguing
damages. Relief in the alternative or of several different types may be
demanded.
2. A party may discover the total damages being claimed. The response to
such discovery shall not be used at trial by opposing parties for any
purpose. (L. 1943 p. 353 § 36, A.L. 1987 H.B. 700, A.L. 1993 S.B. 88)
CROSS REFERENCE: Medical and health care providers, malpractice sections,
538.205 to 538.230, 509.050 not applicable, RSMo 538.300
The plaintiff in his petition or in a reply setting forth a
counterclaim and the defendant in an answer setting forth a counterclaim
may join either as independent or as alternate claims as many claims
either legal or equitable or both as he may have against an opposing
party. There may be a like joinder of claims where there are multiple
parties if the requirements of sections 507.030, 507.040 and 507.060,
RSMo, are satisfied. There may be a like joinder of cross-claims or
third-party claims if the requirements of section 509.460 and section
507.080, RSMo, respectively, are satisfied. (L. 1943 p. 353 § 37)
Whenever a claim is one heretofore cognizable only after another
claim has been prosecuted to a conclusion, the two claims may be joined
in a single action; but the court shall grant relief in that action only
in accordance with the relative substantive rights of the parties. In
particular, a plaintiff may state a claim for money and a claim to have
set aside a conveyance fraudulent as to him, without first having
obtained a judgment establishing the claim for money; a plaintiff may
state his original claim against the defendant and also in either the
original or an amended petition or a reply, a claim for having any
release, composition, settlement, or discharge of the original claim set
aside as fraudulent or otherwise wrongfully procured. (L. 1943 p. 353 §
38)
A party shall state in short and plain terms his defenses to
each claim asserted and shall admit or deny the averments upon which the
adverse party relies. If he is without knowledge or information
sufficient to form a belief as to the truth of an averment, he shall so
state and this has the effect of a denial. Denials shall fairly meet the
substance of the averments denied. When a pleader intends in good faith
to deny only a part or a qualification of an averment, he shall specify
so much of it as is true and material and shall deny only the remainder.
Unless the pleader intends in good faith to controvert all the averments
of the preceding pleading, he may make his denials as specific denials of
designated averments or paragraphs, or he may generally deny all the
averments except such designated averments or paragraphs as he expressly
admits; but, when he does so intend to controvert all its averments he
may do so by general denial. (L. 1943 p. 353 § 39)
In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award, assumption
of risk, contributory negligence, discharge in bankruptcy, duress,
estoppel, failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute of
frauds, statute of limitations, truth in defamation, waiver, and any
other matter constituting an avoidance or affirmative defense. When a
party has mistakenly designated a defense as a counterclaim or a
counterclaim as a defense, the court shall treat the pleadings as if
there had been a proper designation. (L. 1943 p. 353 § 40)
Averments in a pleading to which a responsive pleading is
required, other than those as to the amount of damage, are admitted when
not denied in the responsive pleadings. When a reply is filed, whether
required or not, all affirmative defenses of the answer which are not
denied in the reply are deemed admitted. Averments in a pleading to which
a responsive pleading is not filed and is not required shall be taken as
denied or avoided. (L. 1943 p. 353 § 41)
A party may set forth two or more statements of a claim or
defense alternately or hypothetically, either in one count or defense or
in separate counts or defenses. When two or more statements are made in
the alternative and one of them if made independently would be
sufficient, the pleading is not made insufficient by the insufficiency of
one or more of the alternative statements. A party may also state as many
separate claims or defenses as he has whether based on legal or on
equitable grounds or on both. (L. 1943 p. 353 § 42)
All averments of claim or defense shall be made in numbered
paragraphs, the contents of each of which shall be limited as far as
practicable to a statement of a single set of circumstances; and a
paragraph may be referred to by number in all succeeding pleadings. Each
claim founded upon a separate transaction or occurrence and each defense
other than denials shall be stated in a separate count or defense
whenever a separation facilitates the clear presentation of the matters
set forth. (L. 1943 p. 353 § 43)
Statements in a pleading may be adopted by reference in a
different part of the same pleading or in another pleading or in any
motion. An exhibit to a pleading is a part thereof for all purposes. (L.
1943 p. 353 § 44)
It shall be sufficient to aver the ultimate fact of the capacity
of a party to sue or be sued or the authority of a party to sue or be
sued in a representative capacity or the legal existence of a corporation
or of an organized association of persons that is made a party. When a
person desires to raise an issue as to the legal existence of any party
or the capacity of any party to sue or be sued or the authority of a
party to sue or be sued in a representative capacity, he shall do so by
specific negative averment, which shall include such supporting
particulars as are peculiarly within the pleader's knowledge. When a
party so raises such issue, the burden of proof thereon shall be placed
upon the opposite party. (L. 1943 p. 353 § 45)
When parties sue or are sued as a partnership, and the names of
the partners are set forth in the petition or counterclaim, the existence
of the partnership shall be deemed confessed unless it be denied by
specific negative averment, which shall include such supporting
particulars as are peculiarly within the pleader's knowledge. (L. 1943 p.
353 § 46)
In all averments of fraud or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity. Malice,
intent, knowledge, and other condition of mind of a person may be averred
generally. (L. 1943 p. 353 § 47)
In pleading the performance or occurrence of conditions
precedent, it is sufficient to aver generally that all conditions
precedent have been performed or have occurred. A denial of performance
or occurrence shall be made specifically and with particularity, and when
so made, the party pleading the performance or occurrence shall establish
on the trial the facts showing such performance or occurrence. (L. 1943
p. 353 § 48)
In pleading an official document or official act it is
sufficient to aver that the document was issued or the act done in
compliance with law. (L. 1943 p. 353 § 49)
In pleading a judgment or decision of a domestic or foreign
court, judicial or quasi-judicial tribunal, or of a board or officer, it
is sufficient to aver the judgment or decision without setting forth
matter showing jurisdiction to render it. If such allegations be
controverted, the party pleading them shall establish on the trial the
facts conferring jurisdiction. (L. 1943 p. 353 § 50)
When items of special damage are claimed, they shall be
specifically stated. In actions where exemplary or punitive damages are
recoverable, the petition shall state separately the amount of such
damages sought to be recovered. (L. 1943 p. 353 § 52)
In an action for libel or slander, it shall not be necessary to
state in the petition any extrinsic facts, for the purpose of showing the
application to the plaintiff of the defamatory matter out of which the
claim arose, but it shall be sufficient to state, generally, that the
same was published or spoken concerning the plaintiff; and if such
allegation be not controverted in the answer, it shall not be necessary
to prove it on the trial; in other cases it shall be necessary. The
defendant may, in his answer, allege both the truth of the matter charged
as defamatory and any mitigating circumstances admissible in evidence to
reduce the amount of damages; and whether he prove the justification or
not, he may give in evidence the mitigating circumstance. (L. 1943 p. 353
§ 53)
1. In pleading a private statute or a right derived therefrom,
it shall be sufficient to refer to such statute by its title and the
place where found in the session acts or in the revised statutes, and the
court shall thereupon take judicial notice thereof.
2. In every action or proceeding wherein the pleading states that the law
of another state is relied upon, the courts of this state shall take
judicial notice of the public statutes and judicial decisions of said
state. (L. 1943 p. 353 § 54)
Whenever a claim, defense, or counterclaim is founded upon a
written instrument, the same may be pleaded according to legal effect, or
may be recited at length in the pleading, or a copy may be attached to
the pleading as an exhibit. (L. 1943 p. 353 § 55)
When any claim or counterclaim shall be founded upon any written
instrument and the same shall be set up at length in the pleading or a
copy attached thereto as an exhibit, the execution of such instrument
shall be deemed confessed unless the party charged to have executed the
same shall specifically deny the execution thereof. (L. 1943 p. 353 § 56)
All pleadings shall be so construed as to do substantial
justice. (L. 1943 p. 353 § 57)
1. A defendant shall file his answer within thirty days after
the service of the summons and petition upon him, except where service by
mail is had, in which event a defendant shall file his answer within
thirty days after the return registered mail receipt, as required by
subsection 2 of section 506.160, RSMo, and subsection 3 of section
506.180, RSMo, is filed in the case, or within forty-five days after the
first publication of notice in case that neither personal service nor
service by mail is had.
2. If a cross-claim be filed against a party, he shall file an answer
thereto within twenty days after the same be filed. The plaintiff shall
file his reply to a counterclaim in the answer within twenty days after
filing of the answer or, if a reply is ordered by the court, within
twenty days after entry of the order, unless the order otherwise directs.
3. The filing of any motion provided for in sections 509.290 to 509.320
alters the time fixed for filing any required responsive pleadings as
follows, unless a different time is fixed by order of the court: If the
court denies the motion or postpones its disposition until the trial on
the merits, the responsive pleading may be filed within ten days after
notice of the court's action; if the court grants a motion for a more
definite statement or for a bill of particulars, the responsive pleading
may be filed within ten days after the filing of the more definite
statement or bill of particulars. In either case the time for filing of
the responsive pleading shall be no less than remains of the time which
would have been allowed under this section if the motion had not been
made. (L. 1943 p. 353 § 58)
Demurrers and pleas in abatement and to the jurisdiction shall
not be used. (L. 1943 p. 353 § 59)
1. An application to the court for an order shall be by motion
which, unless made during a hearing or trial, shall be made in writing,
shall state with particularity the grounds therefor, and shall set forth
the relief or order sought. The requirement of writing is fulfilled if
the motion is stated in a written notice of the hearing of the motion.
2. The provisions applicable to captions, signing, and other matters of
form of pleadings apply to all motions and other papers provided for by
this code. (L. 1943 p. 353 § 60)
1. The following objections and other matters may be raised by
motion whether or not the same may appear from the pleadings and other
papers filed in the cause:
(1) Lack of jurisdiction over the subject matter;
(2) Lack of jurisdiction over the person;
(3) Improper venue;
(4) Insufficiency of process;
(5) Insufficiency of service of process;
(6) That plaintiff should furnish security for costs;
(7) That plaintiff has not legal capacity to sue;
(8) That there is another action pending between the same parties for the
same cause in this state;
(9) That several claims have been improperly united;
(10) That the counterclaim or cross-claim is one which cannot be properly
interposed in the action.
2. The grounds of any of the above may be supplied by affidavit and may
be controverted by opposing affidavit in accordance with subsection 4 of
section 506.060, RSMo. (L. 1943 p. 353 § 61)
The objections of failure to state a claim upon which relief can
be granted or to state a legal defense to a claim may be raised by motion
when these objections appear on the face of the pleadings. (L. 1943 p.
353 § 62)
A party may move for a more definite statement or for a bill of
particulars of any matter contained in a petition, answer or reply which
is not averred with sufficient definiteness or particularity to enable
him properly to prepare his responsive pleadings or to prepare generally
for trial when a responsive pleading is not required. If the motion is
granted and the order of the court is not obeyed within ten days after
notice of the order, or within such other time as the court may fix, the
court may strike the pleading to which the motion was directed, or make
such order as it deems just. A bill of particulars becomes a part of the
pleading which it supplements. (L. 1943 p. 353 § 63)
A party may move to strike any redundant, immaterial,
impertinent, or scandalous matter from any pleading. (L. 1943 p. 353 § 64)
All motions made shall be made within the time allowed for
responding to the opposing party's pleading or, if no responsive pleading
is permitted, within twenty days after the service of the last pleading.
Motions and pleadings may be filed simultaneously by the same party
without waiver of the matters contained in either. (L. 1943 p. 353 § 65)
A party who makes a motion may join with it the other motions
provided for and then available to him. No objection is waived by being
joined with one or more other objections in the motion, nor shall
pleading over or entering into the trial of the merits be deemed to waive
any objection properly raised by motion. A party waives all objections
and other matters then available to him by motion by failure to assert
the same by motion within the time limited by section 509.330, except
failure to state a claim upon which relief can be granted, or failure to
state a legal defense to a claim, and except lack of jurisdiction over
the subject matter. (L. 1943 p. 353 § 66)
Upon motion directed to an answer or reply, substantial defects
in all prior pleadings may be considered and judgment rendered against
the party who has first failed to state a claim upon which relief can be
granted or to state a legal defense to a claim. (L. 1943 p. 353 § 67)
After the pleadings are closed, but within such time as not to
delay the trial, any party may move for judgment on the pleadings. (L.
1943 p. 353 § 68)
All objections raised by motion shall be heard and determined
before the trial on application of any party, unless the court for good
cause orders that the hearing and determination thereof be deferred until
the trial. (L. 1943 p. 353 § 69)
All motions may be heard and other acts or proceedings, except
trials upon the merits, may be done or conducted by a judge in chambers,
without the attendance of the clerk or other court officials and at any
place either within or without the county; but no hearing, other than one
ex parte, shall be conducted outside the county without the consent of
all parties affected thereby. (L. 1943 p. 353 § 70)
1. Unless local conditions make it impracticable, each trial
court shall establish regular times and places, at intervals sufficiently
frequent for the prompt dispatch of business, at which motions requiring
notice and hearing may be heard and disposed of; but the court at any
time or place and on such notice, if any, as he considers reasonable may
make orders for the advancement, conduct, and hearing of actions.
2. To expedite its business, the court may make provision by rule or
order for the submission and determination of motions without oral
hearing upon brief written statements of reasons in support and
opposition. (L. 1943 p. 353 § 71)
All defenses and objections for which there is no provision for
the raising of the same by motion shall be raised in the responsive
pleading if one is permitted. When no responsive pleading is required the
case shall be deemed at issue. If a responsive pleading is required all
defenses or objections not raised therein are waived, except failure to
state a claim upon which relief can be granted, or failure to state a
legal defense to a claim, and, except lack of jurisdiction over the
subject matter. All issues of fact raised or deemed to be raised shall be
determined at the trial. (L. 1943 p. 353 § 72)
It shall not hereafter be available to a party as an objection
that no demand for the subject matter of a suit was made prior to its
institution, unless it is expressly set up by way of defense in the
answer or replication, and is also accompanied with a tender of the
amount that is due; in which case, if the plaintiff will further
prosecute his suit, and shall not recover a greater sum than is tendered,
he shall pay all costs. This provision shall be applicable as well to
actions for property as for money; when property is tendered the damages
for its detention, if any, shall also be tendered. (RSMo 1939 § 1426)
Prior revisions: 1929 § 1262; 1919 § 1714; 1909 § 2283
A pleading shall state as a counterclaim any claim, not the
subject of a pending action, which at the time of filing the pleading the
pleader has against any opposing party, if it arises out of the
transaction or occurrences that is the subject matter of the opposing
party's claim and does not require for its adjudication the presence of
third parties of whom the court cannot acquire jurisdiction. (L. 1943 p.
353 § 73)
A counterclaim may or may not diminish or defeat the recovery
sought by the opposing party. It may claim relief exceeding in amount or
different in kind from that sought in the pleading of the opposing party.
(L. 1943 p. 353 § 74)
A claim which either matured or was acquired by the pleader
after serving his pleading may, with the permission of the court, be
presented as a counterclaim by supplemental pleading. (L. 1943 p. 353 §
75)
When a pleader fails to set up a counterclaim through oversight,
inadvertence, or excusable neglect, or when justice requires he may by
leave of court set up the counterclaim by amendment. (L. 1943 p. 353 § 76)
A pleading may state as a cross-claim any claim by one party
against a coparty arising out of the transaction or occurrence that is
the subject matter either of the original action or of a counterclaim
therein. Such cross-claim may include a claim that the party against whom
it is asserted is or may be liable to the cross-claimant for all or part
of a claim asserted in the action against the cross-claimant. (L. 1943 p.
353 § 77)
When the presence of parties other than those to the original
action is required for the granting of complete relief in the
determination of a counterclaim or cross-claim, the court shall order
them to be brought in as defendants as provided in this code if
jurisdiction of them can be obtained. (L. 1943 p. 353 § 78)
Except as otherwise provided by law as to negotiable
instruments, every assigned claim shall be subject to be reduced to the
extent of all counterclaims which the obligor had against the plaintiff's
assignor at the time of notice of the assignment. (L. 1943 p. 353 § 80)
A party may amend his pleading as a matter of course at any time
before a responsive pleading is filed and served, or, if the pleading is
one to which no responsive pleading is required and the action has not
been placed upon the trial calendar, he may so amend it at any time
within thirty days after it is filed. Otherwise a party may amend his
pleading only by leave of court or by written consent of the adverse
party; and leave shall be freely given when justice so requires. A party
shall plead in response to an amended pleading within the time remaining
for response to the original pleading or within ten days after service of
the amended pleading, whichever period may be the longer, unless the
court otherwise orders. (L. 1943 p. 353 § 81)
When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as
if they had been raised in the pleadings. Such amendment of the pleadings
as may be necessary to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at any time, even after
judgment; but failure so to amend does not affect the result of the trial
of these issues. If evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings, the court may
allow the pleadings to be amended and shall do so freely when the
presentation of the merits of the action will be subserved thereby and
the objecting party fails to satisfy the court that the admission of such
evidence would prejudice him in maintaining his action or defense upon
the merits. The court may grant a continuance to enable the objecting
party to meet such evidence. (L. 1943 p. 353 § 82)
Upon motion of a party the court may, upon reasonable notice and
upon such terms as are just, permit him to serve a supplemental pleading
setting forth transactions or occurrences or events which have happened
since the date of the pleading sought to be supplemented. If the court
deems it advisable that the adverse party plead thereto, it shall so
order, specifying the time therefor. (L. 1943 p. 353 § 83)
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