Supreme Court of Missouri
en banc
(2) Repeal of subdivision 43.01(c), entitled “Service – How and by Whom Made,” of Supreme Court Rule 43, entitled “Service and Filing of Pleadings and Papers,” and in lieu thereof adoption of a new subdivision 43.01(c), entitled “Service – How and by Whom Made.”
(3) Repeal of subdivision 57.07, entitled “Use of Depositions in Court Proceedings,” of Supreme Court Rule 57, entitled “Interrogatories and Depositions,” and in lieu thereof adoption of a new subdivision 57.07, entitled “Use of Depositions in Court Proceedings.”
(4) Repeal of subdivision 74.08, entitled “Lien of Judgment,” of Supreme Court Rule 74, entitled “Judgments, Orders and Proceedings Thereon,” and in lieu thereof adoption of a new subdivision 74.08, entitled "Judgment Lien.”
(5) Repeal of subdivisions (a), (d), (e), (h), (i), and (j) of subdivision 84.04, entitled “Briefs – Contents,” of Supreme Court Rule 84, entitled "Procedure in All Appellate Courts,” and in lieu thereof adoption of new subdivisions (a), (d), (e), (h), (i), (j), and (k) of subdivision 84.04, entitled "Briefs – Contents.”
(6) Repeal of subdivision (a) of subdivision 84.24, entitled “Procedure as to Original Writs,” of Supreme Court Rule 84, entitled “Procedure in all Appellate Courts,” and in lieu thereof adoption of a new subdivision (a) of subdivision 84.24, entitled “Procedure as to Original Writs.”
(7) Repeal of Supreme Court Rule 90, entitled “Garnishments and Sequestration,” consisting of subdivisions 90.01 to 90.22, inclusive, and the Committee Notes thereto, and in lieu thereof adoption of a new Supreme Court Rule 90, entitled “Garnishments and Sequestrations,” consisting of subdivisions 90.01 to 90.16, inclusive.
1. It is ordered that effective January 1, 1999, the Committee Note – 1979 to subdivision 30.06 of Supreme Court Rule 30 be and the same is hereby repealed.
2. It is ordered that effective January 1, 1999, subdivision 43.01(c) of Supreme Court Rule 43 be and the same is hereby repealed and a new subdivision 43.01(c) enacted in lieu thereof to read as follows:
43.01 SERVICE OF PLEADINGS AND OTHER PAPERS
(c) Service - How and by Whom Made. Unless otherwise ordered by the court, service required by Rules 43.01(a) and 43.01(b) may be made in the following manner:
(2) Upon a party, by delivering or mailing a copy to the party, by transmitting a copy to the party by facsimile transmission, or by serving a copy in the manner provided for service of summons in Rule 54.13.
Service provided for in Rule 43.01(c)(1) and Rule 43.01(c)(2) may be made by a person over the age of eighteen who is not a party to the action.
Service by mail is complete upon mailing. Service by facsimile transmission is complete upon transmission, except that a transmission made on a Saturday, Sunday, or legal holiday, or after 5:00 p.m., shall be complete on the next day that is not a Saturday, Sunday, or legal holiday.
3. It is ordered that effective January 1, 1999, subdivision 57.07 of Supreme Court Rule 57 be and the same is hereby repealed and a new subdivision 57.07 adopted in lieu thereof to read as follows:
57.07 USE OF DEPOSITIONS IN COURT PROCEEDINGS
(a) Use of Depositions. Any part of a deposition that is admissible under the rules of evidence applied as though the deponent were testifying in court may be used against any party who was present or represented at the taking of the deposition or who had proper notice thereof. Depositions may be used in court:
(2) for any purpose if the deponent is not in court or if the deponent is an adverse party; except, a deponent who is a party may not use such party's deposition as evidence unless such party deponent is dead or incompetent or not able safely to testify in court because of the party deponent's sickness, bodily infirmity or imprisonment.
The term "party" as used in this Rule 57.07(a) includes a deponent who at the time of taking the deposition was an officer, director, or managing agent of a party, or a person designated under Rule 57.03(b)(4) or Rule 57.04(a) to testify on behalf of a public or private corporation, partnership, limited liability company or association or governmental agency that is a party.
(b) Proof of Facts Authorizing Use. The facts that authorize the use of the deposition may be established by the testimony of the deposing witness or by the certificate of the officer taking the deposition or by any competent evidence.
(c) Objections - Effect of Errors and Irregularities in Depositions.
(2) Regarding the officer. An objection to a deposition because the officer before whom it is to be taken is not qualified shall be made before the deposition begins or as soon thereafter as the officer's lack of qualification becomes known or could have been discovered with reasonable diligence; otherwise, the objection is waived.
(3) Regarding the competency of the deponent. An objection to a deponent's competency is not waived by failing to make an objection before or during the deposition unless the basis for the objection could have been removed if the objection had been presented before or during the deposition.
(4) Regarding conduct during the deposition. An objection to the competency, relevancy, or materiality of testimony is not waived by failure to object before or during the deposition. Errors and irregularities in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties and errors of any kind that might be cured if promptly presented are waived unless seasonable objection thereto is made during the deposition. Objections as to the form of written questions submitted under Rule 57.04 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within ten days after service of the last questions authorized.
(5) Regarding irregularities in transcription. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under Rule 57.03 and Rule 57.04 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, discovered; otherwise, such objections are waived.
4. It is ordered that effective January 1, 1999, subdivision 74.08 of Supreme Court Rule 74 be and the same is hereby repealed and a new subdivision 74.08 adopted in lieu thereof to read as follows:
74.08 JUDGMENT LIEN
Except as provided in chapter 454, RSMo, or chapter 517, RSMo, the lien of a judgment commences upon entry of the judgment, continues for a period of three years, and is revived by a revival of the judgment.
5. It is ordered that effective January 1, 1999, subdivisions (a), (d), (e), (h), (i), and (j) of subdivision 84.04 of Supreme Court Rule 84 be and the same are hereby repealed and new subdivisions (a), (d), (e), (h), (i), (j), and (k) of subdivision 84.04 adopted in lieu thereof to read as follows:
84.04 BRIEFS - CONTENTS
(a) Contents. The brief for appellant shall contain:
(2) A concise statement of the grounds on which jurisdiction of the review court is invoked;
(3) A statement of facts;
(4) The points relied on;
(5) An argument, which shall substantially follow the order of the points relied on; and
(6) A short conclusion stating the precise relief sought.
(d) Points Relied On.
(1) Where the appellate court reviews the decision of a trial court, each point shall:
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The trial court erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error].”
(2) Where the appellate court reviews the decision of an administrative agency, rather than a trial court, each point shall:
(B) state concisely the legal reasons for the appellant’s claim of reversible error; and
(C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error.
The point shall be in substantially the following form: “The [name of agency] erred in [identify the challenged ruling or action], because [state the legal reasons for the claim of reversible error, including the reference to the applicable statute authorizing review], in that [explain why, in the context of the case, the legal reasons support the claim of reversible error].”
(3) In an original writ proceeding, each point shall:
(B) identify the action that the petitioner or relator challenges;
(C) state concisely the legal reasons for the challenge to respondent’s action; and
(D) explain in summary fashion why, in the context of the case, those legal reasons support the challenge.
For an action in prohibition, the point shall be in substantially the following form: “Relator is entitled to an order prohibiting Respondent from [describe challenged action], because [state the legal reasons for the challenge], in that [explain why, in the context of the case, the legal reasons support the challenge].” For other remedial writs, the introductory language should be altered appropriately.
(4) Abstract statements of law, standing alone, do not comply with this rule. Any reference to the record shall be limited to the ultimate facts necessary to inform the appellate court and the other parties of the issues. Detailed evidentiary facts shall not be included.
(5) In support of each “Point Relied On,” and immediately following the statement of the Point, the appellant or relator shall cite all authorities upon which the argument rests. If more than three authorities are cited, the three authorities on which the appellant, relator, or petitioner principally relies shall be cited first.
(e) Argument. The argument shall substantially follow the order of “Points Relied On.” The point relied on shall be restated at the beginning of the section of the argument discussing that point. The argument shall be limited to those errors included in the “Points Relied On.” The argument shall also include a concise statement of the applicable standard of review for each claim of error. If a point relates to the giving, refusal or modification of an instruction, such instruction shall be set forth in full in the argument portion of the brief. Long quotations from cases and long lists of citations should not be included.
(h) Appendix. A brief may contain an appendix, bound into the back of the brief, setting forth matters pertinent to the issues discussed in the brief such as copies of exhibits, excerpts from the written record, and copies of new statutes, rules, or cases. If the issues on appeal pertain to written findings of fact and conclusions of law, the appendix should include the pertinent portions of such findings or conclusions.
Copies of exhibits or excerpts from the record may be included only if the original exhibits and the excerpted portions of the record are properly filed and made a part of the record on appeal in accordance with Rule 81. Original exhibits may not be included in an appendix.
The pages in the appendix shall be numbered consecutively beginning with page A1. The pages in the appendix shall not be counted as a part of the brief.
The inclusion of any matter in an appendix does not satisfy any requirement to set out such matter in a particular section of the brief.
(i) Page References in Briefs. All statements of fact and argument shall have specific page references to the legal file or the transcript.
(j) Page Limitations. Without leave of court first being obtained the appellant's brief shall not exceed 100 pages and the respondent's brief shall not exceed 90 pages. The appellant's reply brief shall not exceed 25 pages.
(k) Cross Appeals. If a cross appeal is filed, the plaintiff in the court below shall be deemed the appellant for purposes of this Rule 84.04, unless the parties otherwise agree or the court otherwise orders. The appellant's initial brief shall be filed as otherwise provided in this Rule 84.04 and Rule 84.05. The respondent's initial brief shall contain the issues and argument involved in the respondent's appeal and the response to the brief of the appellant. The respondent's initial brief shall not exceed 100 pages. The appellant may file a second brief in response to the respondent's brief setting forth respondent's appeal and in reply to the respondent's brief opposing appellant's appeal. The appellant's second brief shall not exceed 100 pages. The respondent may file a reply brief in reply to appellant's response to the issues presented by respondent's appeal. No further briefs shall be filed without leave of the court.
6. It is ordered that effective January 1, 1999, subdivision 84.24(a) of Supreme Court Rule 84 be and the same is hereby repealed and a new subdivision 84.24(a) adopted in lieu thereof to read as follows:
84.24 PROCEDURE AS TO ORIGINAL WRITS.
(a) Petitions for original remedial writs shall be accompanied by a docket fee in the amount specified by Rule 81.04(c). The petition shall be filed by the clerk of the court to which it is presented upon presentation of:
(2) suggestions in support of the petition;
(3) the docket fee; and
(4) proof of service, prior to or on the day of presentation of the petition for filing, a copy of the petition, the writ summary, and the suggestions in support of the petition upon the respondent and, if applicable, all parties in the underlying action. Such proof of service shall state the name, address, and telephone number of:
(A) each attorney served and the name of the party such attorney represents, and
(B) each party served who is not represented by an attorney.
RULE 90 GARNISHMENTS AND SEQUESTRATIONS
90.01 DEFINITIONS
In this Rule 90:
b (b) a “debtor” is a judgment debtor;
c (c) a “garnishee” is the person summoned as garnishee in the writ of garnishment or levy;
d (d) “property subject to garnishment” is all goods, personal property, money, credits, bonds, bills, notes, checks, choses in action, or other effects of debtor and all debts owed to debtor.
90.02 REQUEST FOR ISSUANCE OF WRIT OF GARNISHMENT
(a) that a judgment has been entered against the debtor and remains unsatisfied;
(b) the amount of the judgment and the amount remaining unpaid;
(c) that the garnishor knows or has good reason to believe that the garnishee is indebted to debtor, that the garnishee is obligated to make periodic payments to debtor, or that the garnishee has control or custody of property belonging to debtor; and
(d) the requested return date of the writ, which shall be either 30, 60 or 90 days after the filing of the request for the writ.
If a garnishor so requests, the clerk shall issue a writ of garnishment and summons when an attachment or execution is issued.
90.03 SERVICE ON GARNISHEE - RETURN OF SERVICE - RETURN DATE - SERVICE OF SUBSEQUENT PLEADINGS AND PAPERS
(a) The garnishee shall be served with summons and the writ of garnishment. Service shall be as provided in Rule 54.13. In addition, service may be made upon an employee of the garnishee designated to receive service or upon the paying, disbursing or auditing officer of the garnishee. Return of service shall be made as provided in Rule 54.20. The return date of the writ of garnishment shall be set forth in the summons.
(b) All pleadings and papers subsequent to service of the summons and writ of garnishment shall be served as provided in Rule 43.01.
90.04 EFFECT OF SERVICE OF WRIT OF GARNISHMENT AND SUMMONS
The service of the writ of garnishment and summons attaches the property subject to garnishment in the garnishee’s possession or charge or under the garnishee’s control at the time the writ of garnishment and summons is served and continuing through the return date of the writ.
90.05 REQUEST FOR IMMEDIATE DELIVERY OF PROPERTY TO SHERIFF - ORDER OF DELIVERY
(a) When the garnishor requests an order requiring immediate delivery to the sheriff of property subject to garnishment, the garnishor shall file an affidavit stating:
(2) facts showing the reason that immediate delivery to the sheriff should be made; and
(3) the garnishor is in danger of losing the property unless immediate delivery to the sheriff is made.
(b) If the court finds that the facts stated in the affidavit show that the property subject to garnishment should be delivered to the sheriff, the court shall make an order that the garnishee so deliver the property.
90.06 DELIVERY BOND OF GARNISHEE - FORM OF - EFFECT OF FILING - INSUFFICIENT BOND – HEARING
(a) The garnishee may file, either before or after delivery of the property to the sheriff, a sufficient delivery bond to the garnishor, approved by the court and executed by the garnishee as principal and one or more sufficient sureties, to the effect that the property shall be forthcoming as the court may direct.
(b) If the court finds that a delivery bond is not sufficient, it may order the garnishee to furnish a new bond or to immediately deliver the property to the sheriff. Upon failure to furnish a new bond within the time fixed by the court, the court shall order that the property subject to garnishment be delivered to the sheriff.
(c) As an alternative to filing a delivery bond, the garnishee may file a written request for a hearing to determine whether the property should be immediately delivered to the sheriff. The hearing shall be held within ten days after the filing of the request.
90.07 INTERROGATORIES TO GARNISHEE – ANSWERS TO INTERROGATORIES – EXCEPTIONS - RESPONSE
(a) Interrogatories-Time for Filing - Service. Prior to the issuance of the summons and writ of garnishment, the garnishor shall file written interrogatories asking the garnishee to:
(2) state the name and last known address of any person, other than debtor, whom the garnishee knows claims or may claim an interest in or to the property subject to garnishment.
The interrogatories shall be served simultaneously with the summons and writ of garnishment.
(b) Answer to Interrogatories--Time for Filing. The garnishee shall file and serve verified answers to the interrogatories within ten days after the return date of the writ.
(c) Exceptions to Answers to Interrogatories - Time for Filing. The garnishor, within ten days after service of the garnishee's answers to interrogatories, shall file any exceptions to the interrogatory answers asserting any objections to the answers and asserting all grounds upon which recovery is sought against the garnishee. The garnishee's answers to interrogatories are conclusively binding against the garnishor if the garnishor does not timely file exceptions to the interrogatory answers.
(d) Response to Exceptions-Time for Filing. Within ten days after service of the exceptions, the garnishee may file a response thereto.
90.08 COURT ORDER TO ANSWER INTERROGATORIES
If the garnishee fails to answer or improperly answers interrogatories, the court shall, upon motion, order the garnishee to answer or properly answer the interrogatories. Failure of the garnishee to comply with such an order may, upon motion of the garnishor or the court, subject the garnishee to a finding that the garnishee is in default, and the garnishor may take judgment by default against the garnishee.
When a garnishee files interrogatory answers after having been so ordered by the court, the garnishor shall be allowed to file exceptions to such answers in the same manner as provided by Rule 90.07(c).
90.09 CLAIMS OF THIRD PARTIES – NOTICE – INTERVENTION
(a) Notice to Third Parties. If the garnishee's answers to interrogatories disclose that any person other than the debtor and the garnishor claims an interest in all or part of the property subject to garnishment, then the garnishor shall attempt to notify such person of the pendency of the garnishment proceeding and of the right to intervene therein within the time allowed in Rule 90.09(b). Such notification shall be served by mailing the notice by registered or certified mail, requesting a return receipt signed by the addressee only, to the last known address, if any, of each such person disclosed in the garnishee's answers to interrogatories within ten days after service of the garnishee's answers to interrogatories.
(b) Intervention. Any person who claims an interest in the property subject to garnishment may intervene pursuant to Rule 52.12. Persons notified of the garnishment proceeding as provided in Rule 90.09(a) shall move to intervene within fifteen days after receiving the notice.
90.10 DISCHARGE OF GARNISHEE - JUDGMENT IN GARNISHMENT
(a) If the garnishee admits in its answers to interrogatories that any property subject to garnishment is in the garnishee’s possession, the garnishee, without further order of the court, shall pay or deliver such property into court no later than ten days after the return date of the writ of garnishment or levy. Timely payment or delivery of such property into court thereby discharges the garnishee from further liability on account of the property subject to garnishment so paid or delivered.
(b) If the garnishor files exceptions to the garnishee’s answers to interrogatories or if a third party has intervened as provided by Rule 90.09, the court or jury shall determine all controverted issues raised by garnishor's exceptions to the garnishee’s answers to interrogatories, the garnishee’s response thereto, and any claim asserted by a third party who has intervened. The court shall enter judgment in accordance with the findings of the court or jury and shall order that any property not previously delivered to the officer or the court be delivered to the officer or paid into court within such time as the court shall direct. If the property is not delivered to the officer or paid into court within such time, the court may enter judgment against the garnishee for the value of the property.
90.11 DISBURSEMENT
When a trial of issues under Rule 90.10(b) is not required, property paid or delivered into court under Rule 90.10(a) shall be disbursed to the garnishor by the clerk, less costs, within ten days and without order of the court if the garnishee has not requested an allowance under Rule 90.12(a). If the garnishee has requested an allowance under Rule 90.12(a), the property paid or delivered into the court, less costs and allowances, shall be disbursed to the garnishor by the clerk within ten days after the court has determined the allowance to be awarded the garnishee.
The clerk shall not disburse property paid or delivered into court without order of the court when a trial is required by Rule 90.10(b).
90.12 COSTS AND ALLOWANCES
(a) Allowance to Garnishee if Interrogatory Answers are Not Excepted to or Denied. If by interrogatory answers, not excepted to or denied, it appears that the garnishee has property subject to garnishment, the court, upon motion by the garnishee, shall allow the garnishee a reasonable amount for the trouble and expense of answering, including attorney’s fees, to be paid out of the property subject to garnishment. The garnishee shall file a motion for such an allowance on or before the date the garnishee pays or delivers the property subject to garnishment into court.
(b) Allowance to Garnishee if Garnishor Does Not Recover Judgment Against Garnishee. If the garnishor files exceptions to the garnishee's interrogatory answers but does not obtain a judgment against the garnishee, all of the costs attending such garnishment shall be taxed against the garnishor. The court in such a case shall render judgment in favor of the garnishee and against the garnishor for an amount sufficient to indemnify the garnishee for time and expenses, including attorney’s fees.
(c) Allowance to Garnishee in Appellate Court. A garnishee claiming an allowance in an appellate court shall do so pursuant to Rule 84.21.
90.13 EXECUTION AGAINST GARNISHEE
When judgment is rendered against any garnishee, the execution shall be such as is allowed by law on a general judgment.
90.14 GARNISHMENT OF WAGES IN AID OF ATTACHMENT
(a) Personal Service on Defendant Required-Exception. No wages shall be garnished in aid of attachment before personal service is had or obtained upon the defendant unless the suit is brought:
(2) in the county where the debt is contracted and the cause of action arose or accrued; or
(3) in cities with over one hundred thousand inhabitants, in the city where the defendant resides or the debt is contracted and the cause of action arose or accrued.
(b) Contents of Petition and Writ. The petition or statement filed in the cause and the writ of attachment shall state the place where the defendant resides and the place where the debt is contracted and the cause of action arose or accrued.
(c) Wages Earned Out of State - When Exempt. Wages earned out of this state and payable out of this state are exempt from garnishment in aid of attachment in all cases where the cause of action arose or accrued out of this state, unless the defendant in the attachment suit is personally served with process.
90.15 GARNISHMENT OF WAGES - NOTICE OF WAGE EXEMPTION STATUTE REQUIRED
No notice, summons, writ of garnishment, or sequestration of wages issued or served under sections 525.010 to 525.310, RSMo, shall attach or purport to attach any wages in excess of the amounts prescribed in subsection 2 of section 525.030, and each such notice, summons, or writ shall have clearly and legibly reproduced thereon the provisions of subsections 2, 5 and 6 of section 525.030.
90.16 COMPENSATION OF STATE AND MUNICIPAL EMPLOYEES SUBJECT TO WRIT OF SEQUESTRATION
(b) Duties of Officers – Fees - Exemptions. The officer serving the writ shall endorse thereon the day and date the same was received, shall take into possession, as the same shall become due to the judgment debtor, such moneys, checks, drafts, warrants, vouchers, of other evidences of indebtedness, and shall issue a receipt to the paying, disbursing, or auditing officer therefor, and shall endorse, in the name of the judgment debtor, any and all such checks, drafts, warrants, vouchers, or other evidences of indebtedness delivered under the writ. The proceeds thereof less any amount exempt to the judgment debtor under the exemption statutes of this state, or so much thereof as shall be necessary therefor, shall be applied to the payment of the judgment debt, interest, and costs in the same manner as in the case of garnishment under execution.
The sheriff or other officer serving the writ shall make a return to the writ showing the manner of serving it. The sheriff or officer shall be allowed the same fees therefor as provided for levy of execution. The writ shall be returnable in the same manner as the execution issued out of the court in which the judgment was rendered.
Nothing herein shall deprive the judgment debtor of any exemptions permitted under the exemption laws of this state, and the exemptions may be claimed to the sheriff or other officer serving the writ at any time on or before the return date of the writ in the manner provided under the exemption laws of this state. It shall be the duty of the sheriff or other officer serving the writ, at the time of the service thereof, to apprise the judgment debtor of the debtor's exemption rights, either in person or by registered or certified mail directed to the judgment debtor at the last known address.
(c) Other Procedures in Rule 90 Applicable. The procedure in this Rule 90 for determining liability on garnishments shall be applicable in the determination of liability on sequestrations.
9. It is ordered that this order be published in the South Western Reporter.
Day - to - Day
______________________________
DUANE BENTON
Chief Justice
This Order is available in Word: Order re rule changes.doc