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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : CIVIL PROCEDURE AND LIMITATIONS
Chapter : Chapter 512 Appeals and Appellate Procedure
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1. Writs of error are abolished in civil cases. Review shall be
by appeal, which shall constitute a continuation of the proceeding in the
trial court and be deemed to present all issues which heretofore have
been presented by writ of error and appeal.
2. This section is not intended to apply to criminal cases. (L. 1943 p.
353 § 125)
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 or her appeal to a court having appellate jurisdiction from any:
(1) Order granting a new trial;
(2) Order refusing to revoke, modify, or change an interlocutory order
appointing a receiver or receivers, or dissolving an injunction;
(3) Order granting or denying class action certification provided that:
(a) The court of appeals, in its discretion, permits such an appeal; and
(b) An appeal of such an order shall not stay proceedings in the court
unless the judge or the court of appeals so orders;
(4) Interlocutory judgments in actions of partition which determine the
rights of the parties; or
(5) Final judgment in the case or from any special order after final
judgment in the cause; but a failure to appeal from any action or
decision of the court before final judgment shall not prejudice the right
of the party so failing to have the action of the trial court reviewed on
an appeal taken from the final judgment in the case. (RSMo 1939 § 1184,
A.L. 1943 p. 353 § 126, A.L. 2004 S.B. 1211)
Prior revisions: 1929 § 1018; 1919 § 1469; 1909 § 2038
Aggrieved Parties
(1971) Where wife was permitted to amend her motion for change of custody
to ask for rights of visitation which she received she was nevertheless
an aggrieved party and could appeal since to be an alternative relief it
must afford final, full, and complete relief. Eissler v. Eissler (A.),
468 S.W.2d 217.
(1971) Appeal from order, entered in a suit by trustees for construction
of testamentary trust, designated as interlocutory and sustaining motion
for summary judgment by counterclaimants, who asserted that will
provisions creating trust were invalid as violative of rule against
perpetuities, and directing delivery of property, accounting and hearing
on final distribution, was premature. Proctor v. Jacobs (Mo.), 472 S.W.2d
609.
(1972) After defendant rested his case, the court stated "I'm going to
find him guilty and sentence him to six months in the City Workhouse and
I'll grant him probation." Defendant immediately filed "motion for a new
trial or for outright reversal and acquittal", which was overruled.
Defendant then filed his notice of appeal. Appellate court held that
attempted sentencing before the filing of and ruling on defendant's
motion for new trial was premature and void and there was nothing from
which appeal could be taken. State v. Summers (A.), 477 S.W.2d 721.
(1972) An order which quashes a writ of garnishment is a final judgment
for purposes of an appeal but an order overruling a petition to quash
execution of a garnishment is not appealable for the reason that the
order does not constitute a final disposition of the cause nor the merits
of the garnishment proceeding. Orf v. Computer Institute, Inc. (A.), 480
S.W.2d 73.
(1976) Commissioner of finance is not a "person aggrieved" by a decision
of the state banking board and has no standing to sue. Kostman v. Pine
Lawn Bank and Trust Co. (Mo.), 540 S.W.2d 72.
(1977) Held, where motion for new trial on all issues was sustained,
moving party cannot then appeal from an order denying his motion for a
directed verdict since he is not an aggrieved party. Morris v. Patterson
(A.), 549 S.W.2d 613.
(1986) A party whose claim is involuntarily dismissed may remain a
"party" to the action within the meaning of the term "party to a suit
aggrieved by any judgment of any trial court" for purposes of appeal
rights. Aherron v. St. John's Mercy Medical Center, 713 S.W.2d 498 (Mo.
banc).
(1986) This section grants a right of appeal from an interlocutory
judgment in a partition action only where such judgment determines the
quantum of party's interest in the property being partitioned. First
National Bank of Carrollton V. Eucalyptus, 721 S.W.2d 165 (Mo.App.).
Final Judgments, Generally
(1974) Held, a denial of a motion for new trial is not an appealable
judgment, an appeal must be taken from the underlying judgment. Cady v.
Kansas City Southern Railway Co. (A.), 512 S.W.2d 882.
(1974) Held, an order denying defendant's motion to bring in a third
party defendant is not a final judgment and is not appealable. Nadler v.
Continental Insurance Co. (A.), 511 S.W.2d 446.
(1977) Requirement that court make a division of marital property in a
dissolution action is mandatory and failure to comply results in no final
judgment in the action. The fact that a final judgment has not been
rendered bars an appeal under the provisions of § 512.020, RSMo. Corder
v. Corder (A.), 546 S.W.2d 798.
(1977) Held, entry of a decree making final an earlier interlocutory
decree does not violate rule requiring a single final judgment. Bolin v.
Farmers Alliance Mutual Insurance Co. (Mo.), 549 S.W.2d 886.
(1977) Failure to rule on a counterclaim results in judgment not
disposing of all issues and such a judgment is not appealable.
Allis-Chalmers Credit Corp. v. Baker (A.), 559 S.W.2d 763.
(2000) There is an implied right to appeal from circuit court order
creating fire protection district that excludes disputed land. Tipton
Rural Fire Protection District v. Objectors, 34 S.W.3d 404 (Mo.App.W.D.).
(2003) Qualified domestic relations order comes within special order
exception of section but requires denomination as a judgment or decree.
Brooks v. Brooks, 98 S.W.3d 530 (Mo.banc).
Any party may appeal to the court of appeals from a decision in
a habeas corpus proceeding involving the custody of a minor child where
there is in effect, at the time of the hearing on the writ, no prior
court order determining custody. Such appeal shall be expedited by the
court in every manner practicable. (L. 1986 S.B. 493 § 1)
Parties interested jointly, severally, or otherwise in a
judgment may join in an appeal therefrom; or, without summons and
severance any one or more of them may appeal separately or any two or
more of them may join in an appeal. (L. 1943 p. 353 § 127)
The party appealing shall be known as the appellant, and the
adverse party as the respondent, but the title of the action shall not be
changed in consequence of the appeal. (RSMo 1939 § 1185, A.L. 1943 p. 353
§ 128)
Prior revisions: 1929 § 1019; 1919 § 1470; 1909 § 2039
When an appeal is permitted by law from a trial court and within
the time prescribed, a party or his agent may appeal from a judgment or
order by filing with the clerk of the trial court a notice of appeal. 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. All charges due to the court reporter for preparation of the
transcript of the record of the trial court shall be paid within ten days
of the ordering of the transcript. In the event that actual charges due
for the preparation of the transcript cannot be readily determined, a
deposit in the amount of the estimated charges due for preparation of the
transcript shall be paid within ten days of the written notification by
the court reporter of the amount of such estimated charges. The court
reporter shall provide such written notification within ten days of any
request for transcript. After a timely filing of such notice of appeal,
failure of the appellant to take any of the further steps to secure the
review of the judgment or order appealed from does not affect the
validity of the appeal, but is ground for such action as the appellate
court deems appropriate, which may include dismissal of the appeal. (L.
1943 p. 353 § 129, A.L. 1996 S.B. 869, A.L. 1997 S.B. 248)
(1973) An appeal is to be taken from the judgment entered on jury's
verdict, not from order overruling motion for new trial. Safe-Buy Real
Estate Agency, Inc. v. Hemphill (A.), 498 S.W.2d 599.
1. When an appeal is permitted by law from a final judgment in
the trial court, but the time prescribed for filing the ordinary notice
of appeal with the clerk of the trial court as set forth in section
512.050 has expired, nevertheless a party seeking reversal of such final
judgment may file a notice of appeal in the trial court, within six
months from the date of such final judgment, if permitted to do so by a
special order of the appropriate appellate court. The special order may
be allowed by the appellate court, upon motion and notice to adverse
parties, and upon a showing by affidavit, or otherwise, that there is
merit in appellant's claim for the special order and that the delay was
not due to appellant's culpable negligence. When notified of the issuance
of a special order by the appellate court the clerk of the trial court in
which the final judgment was entered shall permit the appellant to file a
notice of appeal and the appellant shall then proceed to prepare the
transcript on appeal as if the appeal had been allowed without a special
order.
2. When an appeal is taken after a special order the power to issue a
stay is lodged exclusively in the appellate court, which may in its
discretion decline to issue a stay or may issue a stay upon such terms
with respect to a supersedeas bond as may be appropriate, and in general
accord with section 512.080. The supersedeas bond shall be filed in the
trial court and the sureties therein shall be subject to the jurisdiction
of the trial court as indicated in section 512.100. If a final judgment
in the trial court is reversed or modified by the appellate court such
reversal or modification shall not affect the rights of any person, not a
party to such a suit, acquired in good faith after expiration of the time
prescribed for taking an appeal without a special order, but before the
filing of the notice of appeal by special order. (L. 1943 p. 353 § 130)
1. The notice of appeal shall specify the parties taking the
appeal; shall designate the judgment or order appealed from; and shall
name the court to which the appeal is taken.
2. Notification of the filing of the notice of appeal shall thereupon be
given by the clerk of the trial court by mailing copies thereof by
registered mail to all the parties to the judgment other than the party
or parties taking the appeal, but his failure so to do does not affect
the validity of the appeal. The notification to a party shall be given by
mailing a copy of the notice of appeal to his attorney of record or, if
the party is not represented by an attorney, then to the party at his
last known address, and such notification is sufficient notwithstanding
the death of the party or of his attorney prior to the giving of the
notification. At the same time the clerk shall mail a copy of the notice
of appeal to the clerk of the appellate court together with a docket fee
deposited by appellant. The clerk shall note in a memorandum filed in the
cause the names of the parties to whom he mails the copies, with date of
mailing. (L. 1943 p. 353 § 131)
1. Appeals shall stay the execution in the following cases:
(1) When the appellant shall be a personal representative, guardian, or
conservator, and the action shall be by or against him as such, or when
the appellant shall be a county, city, town, township, school district,
or other municipality;
(2) When the appellant, at or prior to the time of filing notice of
appeal, presents to the court for its approval a supersedeas bond which
shall have such surety or sureties as the court requires. The court may
also at or prior to the time of filing notice of appeal, by order of
record, fix the amount of the supersedeas bond and allow appellant
reasonable time, not exceeding twenty days, from the date of the order to
file the same subject to the approval of the court or clerk, and such
appeal bond, approved by the court or clerk and filed within the time
specified in such order, shall have the effect to stay the execution
thereafter. If any execution shall have been taken prior to the filing of
the bond as so approved by the court or clerk, the same shall be released.
2. The bond shall be conditioned for the satisfaction of the judgment in
full together with costs, interest, and damages for delay, if for any
reason the appeal is dismissed or if the judgment is affirmed, and to
satisfy in full such modification of the judgment and such costs,
interest, and damages as the appellate court may adjudge and award. When
the judgment is for the recovery of money not otherwise secured, the
amount of the bond shall be fixed at such sum as will cover the whole
amount of the judgment remaining unsatisfied, costs on the appeal,
interest, and damages for delay, unless the court after notice and
hearing and for good cause shown fixes a different amount or orders
security other than the bond. When the judgment determines the
disposition of the property in controversy as in real actions, replevin,
and actions to foreclose mortgages, or when such property is in the
custody of the sheriff, or when the proceeds of such property or a bond
for its value is in the custody or control of the court, the amount of
the supersedeas bond shall be fixed at such sum only as will secure the
amount recovered for the use and detention of the property, the costs of
the action, costs on appeal, interest, and damages for delay. The bond
shall indicate the addresses of the sureties. (L. 1943 p. 353 § 132, A.L.
1983 S.B. 44 & 45)
1. In order to secure and protect the moneys to be received as a
result of the master settlement agreement, as defined in section
196.1000, RSMo, in civil litigation as to any claim relating to tobacco
products involving a signatory, a successor of a signatory, or an
affiliate of a signatory to the master settlement agreement, the amount
of the required undertaking or bond or equivalent surety to be furnished
during the pendency of an appeal or any discretionary appellate review of
any judgment granting legal, equitable, or any other form of relief in
order to stay the execution thereon during the entire course of appellate
review shall be set in accordance with applicable laws or court rules,
except that the total appeal bond or equivalent surety that is required
of all appellants collectively shall not exceed fifty million dollars,
regardless of the value of the judgment. Nothing in this section or any
other provision of law shall be construed to eliminate the discretion of
the court, for good cause shown, to set the undertaking or bond on appeal
in an amount lower than that otherwise established by law.
2. If the appellee proves by a preponderance of the evidence that a party
bringing an appeal or seeking a stay, for whom the undertaking has been
limited, is purposefully dissipating or diverting assets outside of the
ordinary course of its business for the purpose of avoiding ultimate
payment of the judgment, a limitation granted pursuant to subsection 1 of
this section may be rescinded and the court may enter such orders as are
necessary to prevent dissipation or diversion of the assets. An appellant
whose bond has been reduced pursuant to subsection 1 of this section
shall:
(1) Provide to the court and appellee the most recent statement of assets
and liabilities of the appellant that is filed with any federal, state,
or foreign regulatory agency;
(2) Provide to the court and appellee on a quarterly basis any subsequent
updated statement of assets and liabilities that is filed with any
federal, state, or foreign regulatory agency; and
(3) Agree that it will not dissipate or divert assets outside the
ordinary course of its business for the purpose of avoiding ultimate
payment of the judgment.
3. The provisions of this section shall apply to all cases pending on or
after August 28, 2003. (L. 2003 S.B. 242)
If a supersedeas bond is not filed within the time specified, or
if the bond filed is found insufficient, and if the action is not yet
transferred to the appellate court, a bond may be filed at such time
before the action is so transferred to the appellate court, as may be
fixed by the trial court. After the action is so transferred, application
for leave to file a bond may be made only in the appellate court. (L.
1943 p. 353 § 133)
1. In all cases in which there is a count alleging a tort, the
amount of the required undertaking or bond or equivalent surety to be
furnished during the pendency of an appeal or any discretionary appellate
review of any judgment granting legal, equitable, or any other form of
relief in order to stay the execution thereon during the entire course of
appellate review shall be set in accordance with applicable laws or court
rules; except, that the total appeal bond or equivalent surety that is
required of all appellants collectively shall not exceed fifty million
dollars, regardless of the value of the judgment. Nothing in this section
or any other provision of law shall be construed to eliminate the
discretion of the court, for good cause shown, to set the undertaking or
bond on appeal in an amount lower than that otherwise established by law.
2. If the respondent proves by a preponderance of the evidence that a
party bringing an appeal or seeking a stay, for whom the undertaking has
been limited, is purposefully dissipating or diverting assets outside of
the ordinary course of its business for the purpose of avoiding ultimate
payment of the judgment, the limitation granted under subsection 1 of
this section may be rescinded and the court may enter such orders as are
necessary to prevent dissipation or diversion of the assets. An appellant
whose bond has been reduced under subsection 1 of this section shall:
(1) Provide to the court and respondent the most recent statement of
assets and liabilities of the appellant that is filed with any federal,
state, or foreign regulatory agency;
(2) Provide to the court and respondent on a quarterly basis any
subsequent updated statement of assets and liabilities that is filed with
any federal, state, or foreign regulatory agency; and
(3) Agree in writing or in court on the record that it will not dissipate
or divert assets outside the ordinary course of its business for the
purpose of avoiding ultimate payment of the judgment.
3. The provisions of this section shall apply to all judgments entered on
or after August 28, 2005. (L. 2005 H.B. 393)
CROSS REFERENCE: Applicability of statute changes to cases filed after
August 28, 2005, RSMo 538.305
By entering into a supersedeas bond, the surety submits himself
to the jurisdiction of the trial court and his liability may be enforced
on motion for judgment thereon, without the necessity of an independent
action. A copy of the motion, and such additional notice of the motion as
the court requires shall be served like a summons upon a surety who
resides and can be found in the county where the judgment was entered, or
who maintains an office and agent in said county where and upon whom such
service may be made. If the surety is not a resident who can be found in
said county, or if he maintains no office and agent for service there, at
the time such motion is filed, by entering into such bond he shall be
deemed to have irrevocably appointed the clerk of the trial court his
agent upon whom any papers affecting his liability on the bond may be
served; and the clerk shall forthwith mail copies of any such papers to
such surety to his last known address, by registered mail. (L. 1943 p.
353 § 134)
1. Within the time prescribed by sections 512.130 and 512.140,
the appellant shall cause the transcript on appeal, which may be in
typewritten form, to be prepared and filed with the clerk of the proper
appellate court; and within five days thereafter a copy of the transcript
on appeal shall be filed with the clerk of the trial court, which copy
shall remain on file in the office of said clerk.
2. The transcript on appeal shall contain all of the record, proceedings
and evidence necessary to the determination of all questions to be
presented to the appellate court for decision by either appellant or
respondent, except that at the direction of either party the transcript
shall include all of the evidence in the case; provided however, that
costs for any unnecessary part of the transcript which the appellate
court finds has been unreasonably caused to be included in the transcript
may be taxed against the party requiring its inclusion. The parties may
agree in writing upon an abbreviated or partial transcript of the record,
proceedings and evidence, with the evidence either in narrative form or
in question and answer form, or upon a statement of the case as provided
in section 512.120.
3. If the parties agree that the transcript correctly includes all of the
record, proceedings and evidence, it need not be approved by the trial
court. If an abbreviated transcript is used, it must be approved by the
trial court, which may require any additions considered necessary fully
to present the questions raised on appeal. If there is any dispute
concerning the correctness of any transcript, or any part thereof, or if
the parties fail to agree within a reasonable time as to its correctness,
the transcript shall be settled and approved by the trial court. If
anything material to either party is omitted from the transcript by error
or accident or is inadvertently misstated therein, the parties by
stipulation, or the trial court, before the transcript is filed in the
appellate court, or the appellate court thereafter, on a proper
suggestion or of its own initiative, shall direct that the omission or
misstatement shall be corrected and any such correction in the appellate
court shall be certified by its clerk to the trial court. The appellate
court may, if it seems necessary, order that a supplemental transcript on
appeal shall be prepared and filed by either party or by the clerk of the
trial court including any additional part of the record, proceedings and
evidence, or the clerk may be directed to send up any original documents
or exhibits. (L. 1943 p. 353 § 135, A.L. 1947 V. II p. 219)
When the questions presented by an appeal can be determined
without an examination of all the pleadings, evidence, and proceedings in
the court below, the parties may prepare and sign a statement of the case
showing how the questions arose and were decided in the trial court and
setting forth only so many of the facts averred and proved or sought to
be proved as are essential to a decision of the questions by the
appellate court. The statement shall include a copy of the judgment or
order appealed from, a copy of the notice of appeal with its filing date,
and a concise statement of the points to be relied on by the appellant.
If the statement conforms to the truth, it, together with such additions
as the court may consider necessary fully to present the questions raised
by the appeal, shall be approved by the trial court and shall then be
certified to the appellate court as the transcript on appeal. (L. 1943 p.
353 § 136)
The transcript on appeal shall be filed with, and the action
transferred to, the appellate court within ninety days from the date of
filing of the notice of appeal, except that, when more than one appeal is
taken from the same judgment or order to the same appellate court, the
trial court may prescribe the time for filing and transferring, which in
no event shall be less than ninety days from the date of filing of the
first notice of appeal. (L. 1943 p. 353 § 137)
The trial court may extend the time within which any act may be
done under sections 512.110 and 512.130, in accordance with subsection 2
of section 506.060, RSMo. (L. 1943 p. 353 § 138)
1. All briefs shall be prepared as provided by rule of the
appellate court. The appellate courts shall have power to prescribe the
number of copies which shall be filed; the time within which briefs shall
be filed and the manner in which transcripts on appeal, briefs, and other
documents shall be served upon the opposite party or otherwise made
available to him; the time and manner in which appeals shall be docketed
and set for argument; and rules for the taxation of the costs of
preparing transcripts on appeal. Any appellate court may suspend or
modify the rules made in pursuance of this section in a particular case
upon a showing that justice requires a suspension or modification, and
shall do so especially when a litigant is a poor person and the general
rules require a burdensome expenditure of money.
2. Any rules made by an appellate court under subsection 1 with relation
to the docketing of cases and setting the same for argument shall prevail
over any statutory provision prescribing the order of hearings or
preferences to be given in certain classes of cases. (L. 1943 p. 353 §
139)
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.
2. No appellate court shall reverse any judgment, unless it believes that
error was committed by the trial court against the appellant, and
materially affecting the merits of the action.
3. The appellate court shall examine the transcript on appeal and,
subject to the provision of subsections 1 and 2, award a new trial or
partial new trial, reverse or affirm the judgment or order of the trial
court, or give such judgment as such court ought to have given, as to the
appellate court shall seem agreeable to law. Unless justice requires
otherwise the court shall dispose finally of the case on appeal and no
new trial shall be ordered as to issues in which no error appears.
4. Upon the affirmance of any judgment or order, or upon the dismissal of
any case, the appellate court may award to the respondent such damages
not exceeding ten percent of the amount of the judgment complained of as
may be just, and when such judgment shall be affirmed for part of the sum
of which judgment was rendered by the trial court, such part of said
judgment shall bear lawful interest from the date of the rendition of the
original judgment in the trial court.
5. The appellate court, upon the determination of any case on appeal, may
award execution to carry the same into effect, or may remand the case,
with the decision, to the trial court from whence the cause came, and
such determination shall be carried into execution by such trial court.
(L. 1943 p. 353 § 140)
(1986) An appeal which amounts to nothing more than a request that the
court of appeals substitute its judgment for that of a trial court is
held frivolous. An assertion on an appeal of a position diametrically
opposite of one taken at trial is held frivolous. Swanigan v. Crochett,
713 S.W.2d 41 (Mo.App.).
The provisions of the civil code, concerning practice in civil
cases, regulating the practice in the supreme court and the manner of
taking appeals, shall apply to practice in the court of appeals, so far
as the same may be applicable. (RSMo 1939 § 2070, A. 1949 H.B. 2120, A.L.
1973 S.B. 263)
Prior revisions: 1929 § 1906; 1919 § 2410; 1909 § 3925
1. Any person aggrieved by a judgment in a civil case tried
without a jury before an associate circuit judge, other than an associate
circuit judge sitting in the probate division or who has been assigned to
hear the case on the record under procedures applicable before circuit
judges, shall have the right of a trial de novo in all cases tried before
municipal court or under the provisions of chapters 482, 534, and 535,
RSMo.
2. In all other contested civil cases tried with or without a jury before
an associate circuit judge or on assignment under such procedures
applicable before circuit judges or in any misdemeanor case or county
ordinance violation case a record shall be kept, and any person aggrieved
by a judgment rendered in any such case may have an appeal upon that
record to the appropriate appellate court. At the discretion of the
judge, but in compliance with the rules of the supreme court, the record
may be a stenographic record or one made by the utilization of
electronic, magnetic, or mechanical sound or video recording devices. (L.
1978 H.B. 1634, A.L. 1984 S.B. 602, A.L. 1985 S.B. 5, et al., A.L. 2001
S.B. 267, A.L. 2003 H.B. 613, A.L. 2004 S.B. 1211)
1. The right of trial de novo provided in subsection 1 of
section 512.180 shall be perfected by filing an application for trial de
novo with the clerk serving the associate circuit judge within ten days
after the judgment is rendered. A copy of the application shall be mailed
by the clerk to the opposing party or his attorney of record or served
upon him as provided by law for the service of notices within fifteen
days after the judgment was rendered. No application for a trial de novo
shall stay execution unless and until the applicant, or some person for
him, together with one or more solvent sureties to be approved by the
associate circuit judge, within the time prescribed in the first sentence
of this section, enter into a recognizance before the associate circuit
judge to the adverse party, in a sum sufficient to secure the payment of
such judgment and costs, conditioned that the applicant will prosecute
his application for trial de novo with due diligence to a decision, and
that if on such trial de novo judgment be given against him, he will pay
such judgment, and that, if his application for trial de novo be
dismissed, he will pay the judgment rendered by the associate circuit
judge, together with the costs.
2. Appeals to the court of appeals or to the supreme court shall be
governed by the same rules applicable to appeals from judgments rendered
by circuit judges. (L. 1945 p. 765 § 130, A.L. 1947 V. I p. 240, A.L.
1978 H.B. 1634, A.L. 1985 S.B. 5, et al. § B, A.L. 1986 S.B. 741)
Effective 1-1-87
Such recognizance must be signed by the parties entering into
the same, and be approved by the associate circuit judge, and may be in
the following form:
We the undersigned, .......... and .........., acknowledge ourselves
indebted to .......... in the sum of .......... dollars, to be void upon
this condition. Whereas, .......... has made application for a trial de
novo from a judgment of ........, an associate circuit judge, in an
action between .........., plaintiff, and .........., defendant; now, if
on such trial de novo judgment be given against the applicant, and he
shall satisfy such judgment, or if his application shall be dismissed,
and he shall pay the judgment of the associate circuit judge, together
with the cost of the appeal, this recognizance shall be void.
...........................
A B
...........................
C D
Approved .........., day of .........., 19....
.......................
Associate Circuit Judge (RSMo 1939 § 2728, A.L. 1945 p. 765 § 131, A.L.
1978 H.B. 1634)
Prior revisions: 1929 § 2342; 1919 § 2892; 1909 § 7569
Effective 1-2-79
If an application for trial de novo is timely filed and a bond
be given and approved and, in the meantime, execution shall have been
issued, the associate circuit judge shall give the applicant a
certificate that an application for trial de novo in the cause has been
allowed and bond given, and on presentation of such certificate to the
sheriff, he shall forthwith release the property of the defendant that
may have been taken in execution. (RSMo 1939 § 2731, A.L. 1945 p. 765 §
132, A.L. 1978 H.B. 1634)
Prior revisions: 1929 § 2345; 1919 § 2895; 1909 § 7572
Effective 1-2-79
When an application for a trial de novo is timely filed, the
associate circuit judge or the clerk who has custody of the case papers
shall forthwith transmit the case papers in the cause or a transcript
thereof to the clerk receiving cases originally filed for hearing and
determination before a circuit judge, and the cause shall thereupon be
assigned for a trial de novo before a circuit or associate circuit judge
in accordance with assignment procedures prescribed by local circuit
court rule or as directed by the presiding judge of the circuit. (RSMo
1939 § 2736, A.L. 1945 p. 765 § 136, A.L. 1978 H.B. 1634)
Prior revisions: 1929 § 2350; 1919 § 2900; 1909 § 7577
Effective 1-2-79
The judge assigned to hear the cause shall proceed to hear, try
and determine the same anew with a record of the proceedings being made,
without regarding any error, defect or other imperfection on the trial,
judgment or other proceedings of the associate circuit judge in relation
to the cause. (RSMo 1939 § 2738, A.L. 1945 p. 765 § 138, A.L. 1978 H.B.
1634)
Prior revisions: 1929 § 2352; 1919 § 2902; 1909 § 7579
Effective 1-2-79
The same cause of action, and no other, that was tried before
the associate circuit judge, shall be tried before the judge upon the
trial de novo; provided, that new parties, plaintiff or defendant,
necessary to a complete determination of the cause of action, may be
added in the trial de novo. (RSMo 1939 § 2744, A.L. 1945 p. 765 § 139,
A.L. 1978 H.B. 1634)
Prior revisions: 1929 § 2358; 1919 § 2908; 1909 § 7585
Effective 1-2-79
(1976) Held that supreme court rule overrides this section and that third
party practice, (court rule 41.01(b) controls. State ex rel. Mayweather
v. Bondurant (A.), 538 S.W.2d 953.
(1985) Plaintiff's amendment to increase the amount of damages in the
trial de novo was proper where the same cause of action based on the same
theory and supported by the same ultimate facts was heard in the trial de
novo. McMenamy v. Main (Mo.App.), 686 S.W.2d 874.
In cases wherein the summons shall be personally served on the
defendant, no setoff nor counterclaim shall be pleaded in the trial de
novo proceedings that was not pleaded before the associate circuit judge.
(RSMo 1939 § 2745, A.L. 1945 p. 765 § 140, A.L. 1978 H.B. 1634)
Prior revisions: 1929 § 2359; 1919 § 2909; 1909 § 7586
Effective 1-2-79
In all cases of an application for trial de novo, the bill of
items of the account sued on or filed as a counterclaim or setoff, or the
statement of the plaintiff's cause of action, or of defendant's
counterclaim or setoff, or other ground of defense filed before the
associate circuit judge, may be amended upon a trial de novo to supply
any deficiency or omission therein, when by such amendment substantial
justice will be promoted; but no new item or cause of action not embraced
or intended to be included in the original account or statement shall be
added by such amendment. Such amendment shall be allowed upon such terms
as to costs as the court may deem just and proper. (RSMo 1939 § 2746,
A.L. 1945 p. 765 § 141, A.L. 1978 H.B. 1634)
Prior revisions: 1929 § 2360; 1919 § 2910; 1909 § 7587
Effective 1-2-79
The trial de novo shall be governed by the practice in trials
before circuit judges, except that by agreement of parties the case may
be tried by a jury of not less than six persons. (RSMo 1939 § 2747, A.L.
1945 p. 765 § 142, A.L. 1978 H.B. 1634, A.L. 1985 S.B. 5, et al. § B,
A.L. 1986 S.B. 741)
Effective 1-1-87
In all cases of an application for trial de novo from an
associate circuit judge, if on a trial anew, the judgment be against the
applicant, such judgment shall be rendered against him or against him and
his sureties in the recognizance for the application for trial de novo,
if such recognizance be given. (RSMo 1939 § 2748, A.L. 1945 p. 765 § 143,
A.L. 1978 H.B. 1634)
Prior revisions: 1929 § 2362; 1919 § 2912; 1909 § 7589
Effective 1-2-79
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