Rule 55.28 Evidence on Motions

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

XXVIII. Rule 55.28 Evidence on Motions

A. Text of Rule

When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

B. Historical Note

The predecessor of this Rule is former Rule 55.31(b), which provided only for the use of affidavits. Rule 55.28 was promulgated by the Supreme Court of Missouri under the authority of Article V, § 5, of the Missouri Constitution.

C. Cross-References

This Rule is the same as Federal Rule of Civil Procedure 43(e). Compare § 506.060.4, RSMo Supp. 2006, and § 509.290.2, RSMo 2000, which provide only for the use of affidavits.

D. Time Constraints

None.

E. Comment

Under Rule 55.28, a court is allowed to consider evidence on motions solely by way of affidavits, including the affidavits of nonparties. Senn v. Manchester Bank of St. Louis, 583 S.W.2d 119, 134 (Mo. banc 1979), disavowed on other grounds, Haarmann v. Davis, 651 S.W.2d 134 (Mo. banc 1983). As in the case of oral testimony, the court can believe or disbelieve the statements made in these affidavits. Consol. Elec. & Mechs., Inc. v. Schuerman...