Supreme Court of Missouri
en banc

In re:

(1) Repeal of subdivision (5) of subdivision 57.03(b), entitled "Notice of Examination: General Requirements; Special Notice; Production of Documents and Things; Deposition of Organization," of Rule 57, entitled "Interrogatories and Depositions."  

(2) Repeal of subdivision (a) of subdivision 67.02, entitled "Voluntary Dismissal - Effect of," of Rule 67, entitled "Dismissal of Civil Actions," and in lieu thereof adoption of a new subdivision (a) of subdivision 67.02, entitled "Voluntary Dismissal - Effect of."

(3) Repeal of subdivision 74.05(d), entitled "When Set Aside," of Rule 74, entitled "Judgments, Orders and Proceedings Thereon," and in lieu thereof adoption of a new subdivision 74.05(d), entitled "When Set Aside."

(4) Repeal of subdivision 81.07(a), entitled "Appeal by Special Order - Motion - Notice," and subdivision 81.12(a), entitled "Contents of Record on Appeal," of Rule 81, entitled "Appeals," and in lieu thereof adoption of a new subdivision 81.07(a), entitled "Appeal by Special Order - Motion - Notice," and a new subdivision 81.12(a), entitled "Contents of Record on Appeal."

(5) Repeal of subdivision (5) of subdivision 84.06(a), entitled "Size - Type - Form," subdivision (5) of subdivision 84.06(e), entitled "Typewritten Brief," and subdivision 84.06(g), entitled "Floppy Disk - Filing," of Rule 84, entitled "Procedure in All Appellate Courts," and in lieu thereof adoption of a new subdivision (5) of subdivision 84.06(a), entitled "Size - Type - Form," a new subdivision (5) of subdivision 84.06(e), entitled "Typewritten Brief," and a new subdivision 84.06(g), entitled "Electronic Copy - Filing."

(6) Correction of reference to "19___" in Civil Procedure Form No. 6-A. 1.  It is ordered that effective January 1, 2007, subdivision 57.03(b)(5) of Rule 57 be and the same is hereby repealed.

2.  It is ordered that effective January 1, 2007, subdivision 67.02(a) of Rule 67 be and the same is hereby repealed and a new subdivision 67.02(a) adopted in lieu thereof to read as follows:

67.02  VOLUNTARY DISMISSAL - EFFECT OF

(a) Except as provided in Rule 52, a civil action may be dismissed by the plaintiff without order of the court anytime:

(1) Prior to the swearing of the jury panel for the voir dire examination, or

(2) In cases tried without a jury, prior to the introduction of evidence at the trial.

A party who once so dismisses a civil action and thereafter files another civil action upon the same claim shall be allowed to dismiss the same without prejudice only:

(1) Upon filing a stipulation to that effect signed by the opposing party, or

(2) On order of the court made on motion in which the ground for dismissal shall be set forth.



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3.  1.  It is ordered that effective January 1, 2007, subdivision 74.05(d) of Rule 74 be and the same is hereby repealed and a new subdivision 74.05(d) adopted in lieu thereof to read as follows:

74.05  ENTRY OF DEFAULT JUDGMENT

(d) When Set Aside.   Upon motion stating facts constituting a meritorious defense and for good cause shown, an interlocutory order of default or a default judgment may be set aside.  
The motion shall be made within a reasonable time not to exceed one year after the entry of the default judgment. 

"Good cause" includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. 

An order setting aside an interlocutory order of default or a default judgment may be conditioned on such terms as are just, including a requirement that the party in default pay reasonable attorney's fees and expenses incurred as a result of the default by the party who requested the default.

A motion filed under this Rule 74.05(d), even if filed within 30 days after judgment, is an independent action and not an authorized after-trial motion subject to Rule 78.04 or Rule 78.06.

 
4.  It is ordered that effective January 1, 2007, subdivision 81.07(a) and subdivision 81.12(a) of Rule 81 be and the same are hereby repealed and a new subdivision 81.07(a) and a new subdivision 81.12(a) adopted in lieu thereof to read as follows:

81.07  WHEN PARTY MAY APPEAL AFTER TIME FOR FILING OF NOTICE HAS EXPIRED

(a) Appeal by Special Order - Motion - Notice.   When an appeal is permitted by law from a judgment in the trial court, but the time prescribed for filing an ordinary notice of appeal with the clerk of the trial court as set forth in Rule 81.04 has expired, a party may seek a special order of the appropriate appellate court permitting a late filing of the notice of appeal.  The special order may be allowed by the appellate court only upon motion with notice to the adverse parties filed within six months from the date the judgment appealed from became final for purposes of appeal and only upon a showing by affidavit, or otherwise, that the delay was not due to appellant's culpable negligence.  A copy of the judgment from which the appeal is sought shall be attached to any such motion.  When notified of the issuance of a special order by the appellate court, the clerk of the trial court in which the judgment was entered shall permit the appellant to file a notice of appeal within ten days after such notification, or such other time as specified in the order, and the appellant shall then proceed to prepare the record on appeal as if the appeal had been allowed without a special order.



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81.12  CONTENTS OF THE RECORD ON APPEAL - DESIGNATION OF THE RECORD ON APPEAL - COMPILING, ORDERING, FILING AND SERVICE OF RECORD ON APPEAL - ERRORS, OMISSIONS AND SUPPLEMENTAL RECORD ON APPEAL

(a) Contents of Record on Appeal.   The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision.  In order to reduce expense and expedite the preparation of the record on appeal, it is divided into two components, i. e. the "legal file" and the "transcript."

The legal file shall be so labeled with a cover page and contain clearly reproduced exact copies of the pleadings and other portions of the trial record previously reduced to written form.  The documents in the legal file shall be arranged with a docket sheet or case record on top numbered as page 1.  The oldest document shall follow the docket sheet, with the remaining documents arranged in chronological order, ending with the notice of appeal at the bottom.
The transcript shall contain the portions of the proceedings and evidence not previously reduced to written form.
The legal file shall always include:  the docket sheet or case record, which contains a complete summary of all events in the case; the pleadings upon which the action was tried, the verdict, the findings of the court or jury, the judgment or order appealed from, motions and orders after judgment, and the notice of appeal, together with their respective dates of filing or entry of record;  except the parties may agree in writing upon an abbreviated or partial record on appeal or upon a statement of the case as provided in Rule 81.13.



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5.  It is ordered that effective January 1, 2007, subdivision 84.06(a)(5), subdivision 84.06(e)(5), and subdivision 84.06(g) of Rule 84 be and the same are hereby repealed and a new subdivision 84.06(a)(5), a new subdivision 84.06(e)(5), and a new subdivision 84.06(g) adopted in lieu thereof to read as follows:

84.06  FORM OF BRIEFS - DISK REQUIRED, WHEN

(a) Size - Type - Form.   A brief should be prepared using computer software.  Such brief shall:



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(5) Have all pages paginated after the cover page using Arabic numbers, except that the table of contents and the table of authorities may be paginated with small Roman numerals.  Pagination shall be consecutive, except that if the table of contents and the table of authorities are paginated with small Roman numerals, the first page of the remainder of the brief shall be numbered 1;



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(e) Typewritten brief.   A person allowed to appeal as a poor person unable to produce a brief as provided by Rule 84.06(a) or Rule 84.06(d) may file a typewritten brief.  Any other person unable to produce a brief as provided by Rule 84.06(a) or Rule 84.06(d) may file, with leave of court, a typewritten brief.  Such brief shall:



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  (5) Have all pages paginated after the cover page using Arabic numbers, except that the table of contents and the table of authorities may be paginated with small Roman numerals.  Pagination shall be consecutive, except that if the table of contents and the table of authorities are paginated with small Roman numerals, the first page of the remainder of the brief shall be numbered 1;



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(g) Electronic Copy - Filing.   If a brief is prepared as required by Rule 84.06(a), in addition to filing briefs in this Court as required by Rule 84.05(a), an electronic copy, in a commonly used medium, such as a diskette or CD-ROM, in a format that can be read by most commonly used word processing programs, such as Word for Windows or WordPerfect 5.x or higher, shall be filed.

An adhesive label shall be affixed to each disk legibly identifying the caption of the case, the party or amicus curiae filing the disk, the disk number (e.g., "Disk 1 of 2",) and the word processing format (e.g., Microsoft Word for Windows).
The filing party shall certify that the electronic copy has been scanned for viruses and that it is virus-free.

If a brief on electronic copy is filed, service of the brief shall consist of serving one copy of the brief in both the form specified by Rule 84.06(a) and one copy of the electronic copy required by this Rule 84.06(g).
The person on whom an electronic copy of the brief is served may waive receiving the brief in the standard printed or typewritten form.



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6.  It is ordered that effective January 1, 2007, the reference to "19__" in Civil Procedure Form No. 6-A be changed to refer to "20__".

7.  It is ordered that notice of this order be published in the Journal of The Missouri Bar.

8.  It is ordered that this order be published in the South Western Reporter.

Day – to – Day,

_____________________________
MICHAEL A. WOLFF
Chief Justice