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9 J. Mo. B. 1 (1953)

handle is hein.barjournals/jrmobar0009 and id is 1 raw text is: JOURNAL Of THE MISSOURI BAR I NTRORATCD OFFICIAL ORGANIZATION OP ALL MISSOURI LAWYERS Vol. 9 January, 1953 No. I Report of Committee of Kansas City Bar Association on Proposed Rules of Civil Procedure Thi, & th* e of tomlto ouprd .t Edward . Keting. Ant., C. Popha-. B- V. . uiord nd 5. C. Truosy, oppelua=d by als Pnoldo of the S.... Cty !M Anooittoa, 1J.h C. .=p . to. kan i -teiee ad detaied study of st Peopuaed Rule. * CIA Pr.odre. nd report she..n to their .eaoelaou-Editor. EvIsxY LAwYER in the state has by now received a printed pamphlet con- taining a condensation of the proposed rules of civil procedure governing civil practice in circuit courts and courts of common pleas. These rules are pro- posed to supersede and take the place of akl statutory provisions governing civil procedure now in effect. (Rule 1.01). The supreme court has requested mem- bers of the Bar to forward their com- ments, criticisms, suggestions and rec- Dmmendations in regard to these pro- posed rules in duplicate to the clerk of the supreme court. It was felt that a careful study of the proposals and a comprehensive report would be of ex- treme help to the Bar in enabling them to send their requested recommendations to the court on a matter of such vital im- portance to the public and the courts and every practicing attorney. In considering and making sugges- tions concerning the proposed rules, we should have in mind the following: 1. To what extent is the rulemaking power of the supreme court regulated )r extended or restricted by the con- stitutional and statutory provisions of the state? 2. Which proposed rules reduce the work or speed up the preparation of :ases and aid in obtaining justice? 3. Which proposed rules increase the work and hinder the preparation of cases and obtaining of justice? 4. Which rules should or should sot be abandoned or amended, and if amended, why and how? Having the above in mind, we first Jirect attention to certain pertinent con- ititutional and statutory provisions as follows: Article V, Section 5 of the onstitution, 1945, provides that the su- preme court may establish rules of practice and procedure for all courts, subject to the following limitations and estrictions: that they (1) do not change substantive rights; or (2) the law .elating to evidence; or (3) the oral ex- tmination of witnesses; or (4) oral ex- iminstion of juries; or (5) the right of ;rial by a jury; or (6) the right of ap- 3eal. The last sentence of the above provides that, any rule may be annulled or amended by a law limited to the pur- pose. Article I, Section 14 of the Constitu- tion, 1945, provides as follows: That the courts of justice shall be open to every person, and certain remedy af- forded for every injury to person, property or character, and that right and justice shall be administered with- out sale, denial or delay. Section 477.010, Mo. R. S. 1949 pro- vides that, The Supreme Court shall have power to * - * promulgate general rules for all courts of the state. It then provides that, No rules shall abridge, enlarge, or modify the substantive rights of any litigant, nor be contrary to or incon- sistent with the laws in force for the time being. Section 510.220 defines a general ver- dict and a special verdict. Section 510.230 provides that, In every issue for the recovery of money only, or specific REAL or per- sonial property, the jury shall render a general verdict. Section 510.240 provides: In all ether cases, if at any time dur- ing the progress of any cause, it shall, in the opinion of the court, become necessary to determine any fact in con- troversy by the verdict of a jury, the court may direct an issue or issues to be made. In our opinion, Section 510.220 and 510.230 constitute a statutory prohibi- tion against questions in any proceeding coming within those sections. Section 510.300 relates to instructions to the jury, and provides that, any party may request that the court instruct the jury in writing. and that, the court may also instruct the jury in writing of its own motion. (Not by special questions and/or to pre- vent a general verdict.) BUT NOTE CAREFULLY: The above section also specifically provides that, Such instructions so requested * * may be given or refused By the court according to the law and the evidence in the ease. In other words, the power of the court to refuse instructions offered by the parties is restricted and confined to whether such offered instructions are or are not in harmony with the law and the evidence in the case. (Not on the ground that special ques- tions should be submitted in their place.) Proposed Rules In a majority of the cases, it is pro- posed to supersede identical provisions of the existing Civil Code as rules of the court. In many other cases, provi- sions of the Civil Code would be adopted as rules with minor changes and cor- rections having bearing on content In still other cases, it is proposed to in- corporate in one rule or section of a rule, provisions on the same subject, some of which appear in the cede and some in the existing rules of court. For pur- poses of this report, we shall only call attention to and discuss these rules which appear to make material changes in the existing civil code. We shall take these up in numerical order with reference to section number and page. 1. Rule 7. Interrogateries: (Page 34) This rule prohibits the serving of in- terrogatories within thirty days after the commencement of an action, without leave of court granted on motion and notice. This change, in our opinion, means extra work and delay in the prep- aration and trial of lawsuits, particu- larly in those counties and circuits where cases may be tried at the return term. The present code provision permits the filing of interrogatories simultaneously with, or at any time after, filing of the petition. It speeds the discovery proc- Pay 1953 Enrollment Fee To Clerk of Your Circuit Court Fee $12, plus $1.00 penalty after Jassry 20th.

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