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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : CIVIL PROCEDURE AND LIMITATIONS
Chapter : Chapter 510 Trials and Proceedings Before and After Trial
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1. The court may in its discretion direct the attorneys for the
parties to appear before it for a conference in the county where the case
is pending to consider
(1) The simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings;
(3) The possibility of obtaining admissions of fact and of documents
which will avoid unnecessary proof;
(4) The limitation of the number of expert witnesses;
(5) Such other matters as may aid in the disposition of the action.
2. The court shall make an order which recites the action taken at the
conference, the amendments allowed to the pleadings, and the agreements
made by the parties as to any of the matters considered, and which limits
the issues for trial to those not disposed of by admissions or agreements
of counsel; and such order when entered controls the subsequent course of
the action, unless modified at the trial to prevent manifest injustice.
The court in its discretion may establish by rule a pretrial calendar on
which actions may be placed for consideration as above provided and may
either confine the calendar to jury actions or to nonjury actions or
extend it to all actions. (L. 1943 p. 353 § 84)
1. Any party may serve upon any adverse party written
interrogatories to be answered by the party served or, if the party
served is a public or private corporation or a partnership or
association, by any officer, director, partner or managing agent thereof
competent to testify in its behalf.
2. The interrogatories shall be answered separately and fully in writing
under oath. The answers shall be signed by the person making them; and
the party upon whom the interrogatories have been served shall serve a
copy of the answers on the party submitting the interrogatories within
fifteen days after the delivery of the interrogatories, unless the court,
on motion and notice and for good cause shown, enlarges or shortens the
time.
3. Objections to any interrogatories may be presented to the court within
ten days after service thereof, with notice as in case of a motion; and
answers shall be deferred until the objections are determined, which
shall be at as early a time as is practicable.
4. No party may, without leave of court, serve more than one set of
interrogatories to be answered by the same party. (L. 1943 p. 353 § 85)
1. Upon motion of any party showing good cause therefor and upon
notice to all other parties, the court in which an action is pending may:
(1) Order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of* any designated
documents, papers, books, accounts, letters, photographs, objects, or
tangible things, not privileged, which constitute or contain evidence
material to any matter involved in the action and which are in his
possession, custody, or control; or
(2) Order any party to permit entry upon designated land or other
property in his possession or control for the purpose of inspecting,
measuring, surveying, sampling, or photographing the property or any
designated relevant object or operation thereon. The order shall specify
the time, place, and manner of making the inspection and taking the
copies and photographs and may prescribe such terms and conditions as are
just.
2. A party may obtain without the required showing a statement concerning
the action or its subject matter previously made by that party. For
purposes of this subsection, a statement previously made is a written
statement signed or otherwise adopted or approved by the person making
it, or a stenographic, mechanical, electrical, audio, video, motion
picture or other recording, or a transcription thereof, of the party or
of a statement made by the party and contemporaneously recorded. (L. 1943
p. 353 § 86, A.L. 1989 S.B. 127, et al.)
*Word "or" appears in original rolls, an apparent typographical error.
In an action in which the mental or physical condition of a
party is in controversy, the court in which the action is pending may
order him to submit to a physical or mental examination by a physician,
chosen by the party requesting the examination. The order may be made
only on motion for good cause shown and upon notice to the party to be
examined and to all other parties not in default and shall specify the
time, place, manner, conditions, and scope of the examination and the
person or persons by whom it is to be made. Such physician shall be
deemed the witness of the party procuring the examination unless called
as a witness in court by the opposing party. Upon his request and without
cost to himself the party examined shall be furnished by such order with
a full written report of the examination. (L. 1943 p. 353 § 87)
1. At any time after the pleadings are closed, a party may serve
upon any other party a written request for the admission by the latter of
the genuineness of any relevant documents described in and exhibited with
the request or of the truth of any relevant matters of fact pertaining to
such documents set forth in the written request. Copies of the documents
shall be delivered with the request unless copies have already been
furnished. Each of the matters of which an admission is requested shall
be deemed admitted unless, within a period designated in the request, not
less than ten days after service thereof or within such further time as
the court may allow on motion and notice, the party to whom the request
is directed serves upon the party requesting the admission a sworn
statement either denying specifically the matters of which an admission
is requested or setting forth in detail the reasons why he cannot
truthfully either admit or deny those matters.
2. Any admission made by a party pursuant to such request is for the
purpose of the pending action only and neither constitutes an admission
by him for any other purpose nor may it be used against him in any other
proceeding. (L. 1943 p. 353 § 88)
1. Upon the refusal of a party to answer any interrogatory
submitted under section 510.020, the proponent of the question may move
the court, on reasonable notice to all persons affected thereby, for an
order compelling an answer. If the motion is granted and if the court
finds that the refusal was without substantial justification the court
shall require the refusing party to pay to the examining party the amount
of the court costs incurred in obtaining the order. If the motion is
denied and if the court finds that the motion was made without
substantial justification, the court shall require the examining party to
pay to the refusing party the amount of the court costs incurred in
opposing the motion.
2. If any party or an officer, or general manager of a corporation
refuses to obey an order made under subsection 1 requiring him to answer
designated questions, or an order made under section 510.030 to produce
any document or other thing for inspection, copying, or photographing, or
to permit it to be done, or to permit entry upon land or other property,
or an order made under section 510.040 requiring him to submit to a
physical or mental examination, the court may make such orders in regard
to the refusal as are just, and among others the following:
(1) An order that the matters regarding which the questions were asked or
the character or description of the thing or land, or the contents of the
paper, or the physical or mental condition of the party or any other
designated facts shall be taken to be established for the purposes of the
action in accordance with the claim of the party obtaining the order;
(2) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses, or prohibiting him from introducing in
evidence designated documents or things or items of testimony, or from
introducing evidence of physical or mental condition;
(3) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.
3. If a party, after being served with a request under section 510.050 to
admit the genuineness of any documents or the truth of any relevant
matters of fact pertaining to such documents, files and serves a written
sworn denial thereof and if the party requesting the admissions
thereafter proves the genuineness of any such document or the truth of
any such matter of fact pertaining to such documents, he may apply to the
court for an order requiring the other party to pay him the court costs
incurred in making such proof. Unless the court finds that there were
good reasons for the denial or that the admissions sought were of no
substantial importance, the order shall be made.
4. If a party or an officer, or general manager of a corporation
willfully fails to appear before the officer who is to take his
deposition, after being served with a proper notice, or fails to return
answers to interrogatories submitted under section 510.020, after proper
service of such interrogatories, the court on motion and notice may
strike out all or any part of any pleading of that party, or dismiss the
action or proceeding or any part thereof, or enter a judgment by default
against that party. (L. 1943 p. 353 § 89)
(1977) Striking of pleadings and entry of default held proper where
appellant twice refused to answer interrogatories. In re Marriage of
Dickey (A.), 553 S.W.2d 518.
As soon as possible after issue is joined in a case pending in
circuit court or after ten days from the date a case reaches the trial
court upon appeal, by change of venue or otherwise upon issue already
joined, the clerk shall place the same upon the trial docket. Cases shall
be set for trial in accordance with the rules and practice of the trial
court except as such appeals may be otherwise especially provided for by
law. (L. 1943 p. 353 § 91)
For good cause shown, the court may continue an action to a
fixed day, or to a date for trial to be set thereafter. Every continuance
granted on the application of a party may be at the cost of such party,
if so ordered by the court. (L. 1943 p. 353 § 92)
Every application for a continuance shall, unless the adverse
party consent that it be made orally in open court, be made by motion in
writing, accompanied by the affidavit of the applicant, or of some other
credible person, setting forth the facts on which the application is
founded. (RSMo 1939 § 1087, A.L. 1943 p. 353 § 93)
Prior revisions: 1929 § 936; 1919 § 1386; 1909 § 1956
Applications for a continuance on account of the absence of
witnesses or their evidence shall show
(1) The facts showing the materiality of the evidence sought to be
obtained and due diligence upon the part of the applicant to obtain such
witness or testimony;
(2) The name and residence of such witness, if known, or, if not known,
the use of diligence to obtain the same, and also facts showing
reasonable grounds of belief that the attendance or testimony of such
witness will be procured at the date to which the action may be continued
or set for trial;
(3) What particular facts the affiant believes the witness will prove,
and that he knows of no other person whose evidence or attendance he
could have procured at the trial, by whom he can prove or so fully prove
the same facts;
(4) That such witness is not absent by the connivance, consent, or
procurement of the applicant, and such application is not made for
vexation or delay, but in good faith for the purpose of obtaining a fair
and impartial trial. (RSMo 1939 § 1090, A.L. 1943 p. 353 § 94)
Prior revisions: 1929 § 939; 1919 § 1389; 1909 § 1959
If the court shall be of the opinion that the affidavit is
insufficient, it shall permit the same to be amended; and if after such
amendment the affidavit does not contain a sufficient statement of facts
as herein required, the court shall overrule the same; but if, upon the
contrary, the court shall find the affidavit sufficient, the cause shall
be continued, unless the opposite party will admit that the witness, if
present, would swear to the facts set out in said affidavit, in which
event the cause shall not be continued, but the party moving therefor
shall read as the evidence of such witness the facts so stated in such
affidavit and the opposing party may disprove the facts disclosed, or
prove any contradictory statements made by such absent witness in
relation to the matter in issue and on trial. (RSMo 1939 § 1091, A.L.
1943 p. 353 § 95)
Prior revisions: 1929 § 940; 1919 § 1390; 1909 § 1960
1. During the period beginning January first and ending June
first of each year, or whenever the general assembly is in session, there
shall be an automatic stay of all administrative and court proceedings in
which any member of the general assembly has filed a written notice with
the court or administrative hearing officer and with all parties to the
proceeding that the member is:
(1) A necessary witness;
(2) A party to the action; or
(3) The initial attorney for any party or has filed an entry of
appearance as an attorney for any party more than forty-five days prior
to the filing of the written notice under this subsection.
2. The stay created by this section shall apply to all trials, motions,
hearings, discovery responses, depositions, responses to motions, docket
calls, and any other proceedings before any trial court or administrative
tribunal, including municipal courts. The stay shall also apply to any
order requiring the member to serve as a juror whenever the general
assembly is in session.
3. The stay created by this section shall not apply:
(1) If the member waives the protections of this stay in the form of a
written memorandum filed with the trial court or administrative tribunal;
(2) To any proceedings under chapter 288, RSMo;
(3) To any proceedings involving a request for injunctive relief; or
(4) To any proceeding in which the member is charged with a felony or a
class A misdemeanor.
4. The court of appeals shall have original jurisdiction over any
application for termination or modification of the stay.
5. In all civil cases or administrative proceedings or in criminal cases
pending in this state at any time when the general assembly is in veto
session, special session, or holding out-of-session committee hearings,
it shall be a sufficient cause for such continuance if it shall appear to
the court, by written notice, that any party applying for such
continuance, or any attorney, solicitor or counsel of such party is a
member of either house of the general assembly, and in actual attendance
on the out-of-session committee hearings, special session, or veto
session of the same, and that the attendance of such party, attorney,
solicitor or counsel is necessary to a fair and proper trial or other
proceeding in such suit; and on the filing of such notice the court shall
continue such suit and any and all motions or other proceedings therein,
of every kind and nature, including the taking of depositions and
discovery responses, and thereupon no trial or other proceedings of any
kind or nature shall be had therein until the adjournment or recess for
three days or more of the special session or veto session of the general
assembly, nor for one day before or after or the day of any
out-of-session committee hearings. Such notice shall be sufficient, if
made within two days of the out-of-session committee hearings, special
session, or veto session of the general assembly, showing that at the
time of making the same such party, attorney, solicitor or counsel is
scheduled to be in actual attendance upon such out-of-session committee
hearings, special session, or veto session of the general assembly. (RSMo
1939 § 1089, A.L. 1943 p. 353 § 96, A.L. 2003 H.B. 613, A.L. 2005 H.B.
688)
Prior revisions: 1929 § 938; 1919 § 1388; 1909 § 1958
1. In any civil action brought in a court of this state by an
offender convicted of a crime who is confined in any state prison or
correctional facility, the court shall stay such case until the offender
has exhausted such administrative remedies as are described in this
section and are available to the offender.
2. The department of corrections shall maintain a system or systems for
the resolution of grievances of offenders confined in each state prison
or correctional facility. The systems may provide for:
(1) Time limits for replies to grievances at each decision level within
the system;
(2) Priority processing of grievances which are of an emergency nature,
including matters in which delay would subject the grievant to
substantial risk of personal injury;
(3) Safeguards to avoid reprisals against any grievant or participant in
the resolution of a grievance; and
(4) Review of the disposition of grievances by a person or other entity
who did not render the original decision of the grievance.
3. Notwithstanding the provisions of subsections 1 and 2 of this section,
the provisions of any federal statute governing a cause of action created
by federal law shall control and take precedence in actions brought
pursuant to such federal law. (L. 1995 H.B. 424)
1. A plaintiff shall be allowed to dismiss his action without
prejudice at any time before the same is finally submitted to the jury,
or to the court sitting as a jury, or to the court, and not afterward. A
plaintiff who has once so dismissed his action and thereafter files
another action upon the same claim shall not be allowed to dismiss the
same without prejudice after the jury has been impaneled, or after
evidence has been introduced in a nonjury case, except
(1) Upon filing a stipulation to that effect signed by the opposite
party; or
(2) On order of the court made on special motion in which the ground for
said dismissal shall be set forth and which shall be supported by
affidavit.
2. No party, who has been granted a dismissal at his request after an
adverse ruling of the trial court preventing a recovery on his part,
shall as a matter of right be granted more than one new trial or more
than one appeal on the ground that the adverse ruling of the trial court
preventing a recovery on his part was erroneous. (L. 1943 p. 353 § 99)
(1972) Plaintiff does not have an absolute right to take a voluntary
dismissal but to deny such dismissal, defendant must show some injury to
himself more than the mere fact that plaintiff could bring another
action. Stubblefield v. Seals (Mo.), 485 S.W.2d 126.
For failure of the plaintiff to prosecute or to comply with this
code or any order of court, a defendant may move for dismissal of an
action or of any claim against him. After the plaintiff has completed the
presentation of his evidence, the defendant, without waiving his right to
offer evidence in the event the motion is not granted, or in the event
that the motion is granted and the resulting judgment is later held
erroneous, may move for a dismissal on the ground that upon the facts and
the law the plaintiff has shown no right to relief. (L. 1943 p. 353 § 100)
A dismissal without prejudice permits the party to bring another
action for the same cause, unless the action is otherwise barred. A
dismissal with prejudice operates as an adjudication upon the merits. Any
voluntary dismissal other than one which the party is entitled to take
without prejudice, and any involuntary dismissal other than one for lack
of jurisdiction or for improper venue shall be with prejudice unless the
court in its order for dismissal shall otherwise specify. (L. 1943 p. 353
§ 101)
The provisions of sections 510.130 to 510.150 and 514.180, RSMo,
apply to the dismissal of any counterclaim, cross-claim, or third-party
claim. (L. 1943 p. 353 § 102)
No dismissal, voluntary or involuntary, of a plaintiff's action
in which a counterclaim or cross-claim has been filed shall operate to
dismiss or discontinue such counterclaim or cross-claim. (L. 1943 p. 353
§ 103)
1. Whenever several suits founded alone upon liquidated demands
shall be pending in the same court by the same plaintiff, against the
same defendant, or whenever several such suits are pending in the same
court, by the same plaintiff, against several defendants, the court in
which the same shall be prosecuted may, in its discretion, if it appear
expedient, order such suits to be consolidated into one action.
2. The court in furtherance of convenience or to avoid prejudice may
order a separate trial of any claim, cross-claim, counterclaim, or
third-party claim, or of any separate issue or of any number of claims,
cross-claims, counterclaims, third-party claims, or issues. (RSMo 1939 §§
1094, 1102, A.L. 1943 p. 353 § 97)
Prior revisions: 1929 §§ 943, 951; 1919 §§ 1393, 1401; 1909 §§ 1963, 1971
1. The right of trial by jury as declared by the constitution or
as given by a statute shall be preserved to the parties inviolate. In
particular, any issue as to whether a release, composition, or discharge
of plaintiff's original claim was fraudulently or otherwise wrongfully
procured shall be tried by jury unless waived.
2. Parties shall be deemed to have waived trial by jury:
(1) By failing to appear at the trial;
(2) By filing with the clerk written consent in person or by attorney;
(3) By oral consent in court, entered on the minutes;
(4) By entering into trial before the court without objection.
3. In actions against the state when a statute provides for trial without
a jury, the court, with the consent of both parties, may order a trial
with a jury whose verdict has the same effect as if trial by jury had
been a matter of right.
4. In actions where an infant or a mentally incapacitated person is a
party and where an infant or mentally incapacitated person is represented
by a legal representative, trial by jury shall be deemed to be waived
under the circumstances set forth in subsection 2. (RSMo 1939 § 1101,
A.L. 1943 p. 353 § 98, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 950; 1919 § 1400; 1909 § 1970
(1973) Held that trial by jury cannot be waived by informal statement by
counsel that jury would not be required. Randolph v. Simpson (A.), 500
S.W.2d 289.
(1974) Held wife's counterclaim for necessaries was a claim at law and
jury trial must be granted. Attebery v. Attebery (A.), 507 S.W.2d 87.
All trials upon the merits shall be conducted in open court and
so far as convenient in the regular courtroom. Trials may be conducted or
motions heard outside the county where pending with the consent of all
parties affected thereby. (L. 1943 p. 353 § 90)
Formal exceptions to rulings or orders of the court are
unnecessary; but for all purposes for which an exception has heretofore
been necessary it is sufficient that a party, at the time the ruling or
order of the court is made or sought, makes known to the court the action
which he desires the court to take or his objection to the action of the
court and his grounds therefor except it shall not be necessary to state
grounds for objections for instructions; and, if a party has no
opportunity to object to a ruling or order at the time it is made, the
absence of an objection does not thereafter prejudice him. (L. 1943 p.
353 § 122, A.L. 1947 V. I p. 227)
The verdict of a jury is either general or special. A general
verdict is one by which the jury pronounces generally upon all or any of
the issues, either in favor of the plaintiff or defendant. A special
verdict is one by which the jury finds the facts only, leaving the
judgment to the court. (RSMo 1939 § 1119, A.L. 1943 p. 353 § 106)
Prior revisions: 1929 § 968; 1919 § 1418; 1909 § 1988
In every issue for the recovery of money only, or specific real
or personal property, the jury shall render a general verdict. (RSMo 1939
§ 1120, A.L. 1943 p. 353 § 107)
Prior revisions: 1929 § 969; 1919 § 1419; 1909 § 1989
In all other cases, if at any time during the progress of any
cause, it shall, in the opinion of the court, become necessary to
determine any fact in controversy by the verdict of a jury, the court may
direct an issue or issues to be made. (RSMo 1939 § 1121, A.L. 1943 p. 353
§ 108)
Prior revisions: 1929 § 970; 1919 § 1420; 1909 § 1990
No issue shall be made, except such as shall be directed by the
court. (RSMo 1939 § 1122, A.L. 1943 p. 353 § 109)
Prior revisions: 1929 § 971; 1919 § 1421; 1909 § 1991
The trial of such issues shall be by jury, and the issues shall
be disposed of by a general or special verdict before a final judgment
shall be made therein. (RSMo 1939 § 1123, A.L. 1943 p. 353 § 110)
Prior revisions: 1929 § 972; 1919 § 1422; 1909 § 1992
1. All actions tried before a jury involving punitive damages,
including tort actions based upon improper health care, shall be
conducted in a bifurcated trial before the same jury if requested by any
party.
2. In the first stage of a bifurcated trial, in which the issue of
punitive damages is submissible, the jury shall determine liability for
compensatory damages, the amount of compensatory damages, including
nominal damages, and the liability of a defendant for punitive damages.
Evidence of defendant's financial condition shall not be admissible in
the first stage of such trial unless admissible for a proper purpose
other than the amount of punitive damages.
3. If during the first stage of a bifurcated trial the jury determines
that a defendant is liable for punitive damages, that jury shall
determine, in a second stage of trial, the amount of punitive damages to
be awarded against such defendant. Evidence of such defendant's net worth
shall be admissible during the second stage of such trial.
4. Within the time for filing a motion for new trial, a defendant may
file a post-trial motion requesting the amount awarded by the jury as
punitive damages be credited by the court with amounts previously paid by
the defendant for punitive damages arising out of the same conduct on
which the imposition of punitive damages is based. At any hearing, the
burden on all issues relating to such a credit shall be on the defendant
and either party may introduce relevant evidence on such motion. Such a
motion shall be determined by the trial court within the time and
according to procedures applicable to motions for new trial. If the trial
court sustains such a motion the trial court shall credit the jury award
of punitive damages by the amount found by the trial court to have been
previously paid by the defendant arising out of the same conduct and
enter judgment accordingly. If the defendant fails to establish
entitlement to a credit under the provisions of this section, or the
trial court finds from the evidence that the defendant's conduct out of
which the prior punitive damages award arose was not the same conduct on
which the imposition of punitive damages is based in the pending action,
or the trial court finds the defendant unreasonably continued the conduct
after acquiring actual knowledge of the dangerous nature of such conduct,
the trial court shall disallow such credit, or, if the trial court finds
that the laws regarding punitive damages in the state in which the prior
award of punitive damages was entered substantially and materially
deviate from the law of the state of Missouri and that the nature of such
deviation provides good cause for disallowance of the credit based on the
public policy of Missouri, then the trial court may disallow all or any
part of the credit provided by this section.
5. The credit allowable under this section shall not apply to causes of
action for libel, slander, assault, battery, false imprisonment, criminal
conversation, malicious prosecution or fraud.
6. The doctrines of remittitur and additur, based on the trial judge's
assessment of the totality of the surrounding circumstances, shall apply
to punitive damage awards.
7. As used in this section, "punitive damage award" means an award for
punitive or exemplary damages or an award for aggravating circumstances.
8. Discovery as to a defendant's assets shall be allowed only after a
finding by the trial court that it is more likely than not that the
plaintiff will be able to present a submissible case to the trier of fact
on the plaintiff's claim of punitive damages. (L. 1987 H.B. 700 § 39,
A.L. 2005 H.B. 393)
CROSS REFERENCE: Applicability of statutes changes to cases filed after
August 28, 2005, RSMo 538.305
1. No award of punitive damages against any defendant shall
exceed the greater of:
(1) Five hundred thousand dollars; or
(2) Five times the net amount of the judgment awarded to the plaintiff
against the defendant.
Such limitations shall not apply if the state of Missouri is the
plaintiff requesting the award of punitive damages, or the defendant
pleads guilty to or is convicted of a felony arising out of the acts or
omissions pled by the plaintiff.
2. The provisions of this section shall not apply to civil actions
brought under section 213.111, RSMo, that allege a violation of section
213.040, 213.045, 213.050, or 213.070, RSMo, to the extent that the
alleged violation of section 213.070, RSMo, relates to or involves a
violation of section 213.040, 213.045, or 213.050, RSMo, or subdivision
(3) of section 213.070, RSMo, as it relates to housing. (L. 2005 H.B. 393)
CROSS REFERENCE: Applicability of statute changes to cases filed after
August 28, 2005, RSMo 538.305
When a verdict shall be found for the plaintiff in an action for
the recovery of money only, the jury shall also assess the amount of the
recovery; so, also, if they find for the defendant in case of offsets or
other demand for money. When exemplary or punitive damages are allowed by
the jury, the amount thereof shall be separately stated in the verdict.
(RSMo 1939 §§ 919, 1124, A.L. 1943 p. 353 § 111)
Prior revisions: 1929 §§ 767, 973; 1919 §§ 1223, 1423; 1909 §§ 1797, 1993
The demurrer to the evidence and the request for peremptory
instructions are abolished and in lieu thereof a party may make a motion
for a directed verdict. A party who moves for a directed verdict at the
close of the evidence offered by an opponent may offer evidence in the
event that the motion is not granted, without having reserved the right
so to do and to the same extent as if the motion had not been made. A
motion for a directed verdict which is not granted is not a waiver of
trial by jury even though all parties to the action have moved for
directed verdicts. Upon motion for directed verdict by a party opposing a
claim the court, whether so requested or not, may dismiss the claim
without prejudice if justice so requires. (L. 1943 p. 353 § 112)
Whenever a motion for a directed verdict made at the close of
all the evidence is denied or for any reason is not granted the court is
deemed to have submitted the action to the jury subject to a later
determination of the legal questions raised by the motion. Within ten
days after the reception of a verdict, a party who has moved for a
directed verdict may move to have the verdict and any judgment entered
thereon set aside and to have judgment entered in accordance with his
motion for a directed verdict; or if a verdict was not returned, such
party, within ten days after the jury has been discharged, may move for
judgment in accordance with his motion for a directed verdict. A motion
for a new trial may be joined with this motion, or a new trial may be
prayed for in the alternative. If a verdict was returned the court may
allow the judgment to stand or may reopen the judgment and either order a
new trial or direct the entry of judgment as if the requested verdict had
been directed. If no verdict was returned the court may direct the entry
of judgment as if the requested verdict had been directed or may order a
new trial. (L. 1943 p. 353 § 113)
1. At the close of all the evidence, or at such earlier time
during the trial as the court may reasonably direct, any party may
request that the court instruct the jury in writing on the law applicable
to the issues in evidence in the case. Such instructions so requested to
be submitted in writing by the party requesting the same, and may be
given or refused by the court according to the law and the evidence in
the case. The court may also instruct the jury in writing of its own
motion. The court shall afford ample opportunity for counsel to examine
the instructions before the same are given and to make objections out of
the hearing of the jury.
2. Instructions which are refused shall be so marked by the court and
filed with the clerk. All instructions given shall be carried by the jury
to their room and returned and filed at the conclusion of their
deliberations. All instructions refused and all instructions given shall
be kept as part of the record of the cause. (RSMo 1939 § 1118, A.L. 1943
p. 353 § 105)
Prior revisions: 1929 § 967; 1919 § 1417; 1909 § 1987
1. In cases tried upon the facts without a jury, the court shall
rule upon all objections to evidence as in jury cases. Where the court is
of the opinion that the evidence is not admissible, it shall not receive
the evidence, but where the evidence is brief and is not privileged, the
court shall permit the same and any cross-examination relating thereto or
evidence in rebuttal thereof to be taken down by the court reporter or
otherwise preserved, apart from the evidence received.
2. At or after the trial, the court shall render such judgment as it
thinks right upon the law and the evidence. If any party shall so request
before final submission of the case, the court shall dictate to the court
reporter, or prepare and file a brief opinion containing a statement of
the grounds for its decision and the method of determining any damages
awarded; and may, or if specifically requested by counsel, shall, include
its findings on any of the principal controverted fact issues. All fact
issues upon which no specific findings are made shall be deemed found in
accordance with the result reached.
3. Upon motion of a party made not later than ten days after entry of
judgment the court may amend the judgment and opinion. The motion may be
made with a motion for a new trial.
4. No findings of fact, except such as shall have been specifically
requested, and no conclusions of law or objections to the judgment or to
the opinion of the court are necessary for purposes of review. The
question of the sufficiency of the evidence to support the judgment may
be raised whether or not the question was raised in the trial court. The
appellate court shall review the case upon both the law and the evidence
as in suits of an equitable nature. The judgment shall not be set aside
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge of the credibility of the
witnesses. The appellate court shall consider any evidence which was
rejected by the trial court and duly preserved for the appeal when the
appellate court believes such evidence to be admissible. The appellate
court may also order any rejected evidence to be taken by deposition or
under a reference and returned to said court. (L. 1943 p. 353 § 114)
No trial or proceeding in any civil or criminal case shall be
terminated by the expiration of the term at which it was commenced, but
such trial or proceeding may proceed until it is concluded in all
respects as if the term had not expired, or same may be continued to an
adjourned or special term, or to the next regular term, as the court may
direct. (RSMo 1939 § 2023)
Prior revision: 1929 § 1859
A new trial may be granted for any of the reasons for which new
trials have heretofore been granted. A new trial may be granted to all or
any of the parties and on all or part of the issues after trial by jury,
court or referee. On a motion for a new trial in an action tried without
a jury, the court may open the judgment if one has been entered, take
additional testimony, amend findings of fact or make new findings, and
direct the entry of a new judgment. Only one new trial shall be allowed
on the ground that the verdict is against the weight of the evidence.
Every order allowing a new trial shall specify of record the ground or
grounds on which said new trial is granted. (L. 1943 p. 353 § 115)
When a motion for new trial is based upon affidavits they shall
be served with the motion. The opposing party has ten days after such
service within which to serve opposing affidavits, which period may be
extended for an additional period not exceeding twenty days either by the
court for good cause shown or by the parties by written stipulation. The
court may permit reply affidavits. (L. 1943 p. 353 § 117)
If the motion for new trial is not passed on within ninety days
after the motion is filed, it is deemed denied for all purposes. (L. 1943
p. 353 § 118)
Not later than thirty days after entry of judgment, the court of
its own initiative may order a new trial for any reason for which it
might have granted a new trial on motion of a party, and every order
granting a new trial shall specify the grounds therefor. (L. 1943 p. 353
§ 119)
The motion for judgment notwithstanding the verdict and the
motion in arrest of judgment are hereby abolished and the objections
which were heretofore made on such motions may be raised in a motion for
a new trial or upon motion filed at the same time as is required for
motion for a new trial, praying for appropriate relief in the premises.
(L. 1943 p. 353 § 120)
If by reason of his going out of office, death, sickness, or
other disability, a judge before whom an action has been tried is unable
to perform the duties to be performed by the court under this code after
a verdict is returned or findings of fact are filed, then any other judge
sitting in or assigned to the court in which the action was tried may
perform those duties; but if such other judge is satisfied that he cannot
perform those duties because he did not preside at the trial or for any
other reason, he may in his discretion grant a new trial. (L. 1943 p. 353
§ 121)
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