Rule 53.01 Commencement of Civil Action

• Library: Civil Procedure (2007 Ed. + 2013 Supp)

I. Rule 53.01 Commencement of Civil Action

A. Text of Rule

A civil action is commenced by filing a petition with the court.

B. Historical Note

Rule 53.01 was adopted April 21, 1972, and effective December 1, 1972. It is identical to Rule 3 of the Federal Rules of Civil Procedure except that the federal Rule uses the term "complaint" instead of "petition." Former Rule 53.01, repealed in 1972, provided as follows:

Civil actions may be instituted, except when a statute or these rules otherwise provide, either (1) by filing in the office of the clerk of the proper court a petition setting forth the plaintiff's cause or causes of action, and the remedy sought, and by the voluntary appearance of the adverse party thereto; or (2) by filing such petition in such office, and suing out thereon a writ of summons against the person or of attachment against the property of the defendant. The filing of a petition and suing out of process therein shall be deemed the commencement of a civil action.

V.A.M.R. S. Ct. Rules, Rules 41–67 Civil Procedure (1999).

C. Cross-References

Rule 53.01 is substantially identical to Rule 3 of the Federal Rules of Civil Procedure except that Rule 53.01 uses the term "petition" instead of the term "complaint." Rule 53.01 supersedes portions of and should be compared to § 506.110, RSMo 2000, and § 452.311, RSMo Supp. 2006, as discussed in the Comment section below.

D. Time Constraints

None.

E. Comment

Current Rule 53.01, adopted in 1972, substantially modified the previous requirement for the commencement of a civil action in Missouri. Former Rule 53.01—see Historical Note, supra—provided that a civil action was commenced either by the filing of a petition and the voluntary appearance of the opposing party or the filing of the petition and the "suing out thereon of a writ of summons against the person or of attachment against the property of the defendant." The adoption of the current version of Rule 53.01 is significant because the "commencement" of a civil action is now completed by the filing of the petition without the necessity of also obtaining the issuance of a summons or writ of attachment. Rule 53.01.

The Advisory Committee on Rules noted that the date of the commencement of a civil action is significant in four situations:

To establish the date of commencement for purposes of the statute of limitations In partition suits In divorce cases when each party to the marriage files a petition in a different county In cases...