Section 2.22 Collateral Attacks

• Library: App Ct Prac 2015 Supp

G. (§2.22) Collateral Attacks

Rule: A final order resolving a collateral attack on a judgment is appealable of right. Authorized after-trial motions extend the time to appeal until such motions are resolved. The notice of appeal is due within 40 days after the order or 10 days after disposition of authorized posttrial motions, whichever is sooner.

Rules 74.05 and 74.06 replace the former methods for launching collateral attacks on a judgment. Rule 74.05(d) permits the court to set aside a default judgment within one year after entry. The rule requires proof of a meritorious defense and “good cause.” Good cause includes a mistake or conduct that is not intentionally or recklessly designed to impede the judicial process. Rule 74.06 permits the court to set aside or correct any judgment on grounds ranging from clerical errors to fraud on the court. Rule 74.06 is modeled on Fed. R. Civ. P. 60.

An immediate appeal will lie from any otherwise final order under Rules 74.05 and 74.06. Historically, Missouri courts have treated such motions as independent actions. Sprung v. Negwer Materials, Inc., 727 S.W.2d 883, 888 (Mo. banc 1987). They have reached the same result under the current rules. Moore v. Baker, 982 S.W.2d 286, 288 (Mo. App. W.D. 1998) (Rule 74.05); Yanuzzi v. Dir. of Revenue, 14 S.W.3d 618, 620 (Mo. App. E.D. 1999) (Rule 74.06). An order finally terminating this independent action is appealable.

Orders denying relief in a collateral attack on a judgment are appealable of right. Mandel v. Bethe, 170 S.W.2d 87 (Mo. App. E.D. 1943); O’Mara v. Gingrich, 424...