607 S.W.2d 799 | Mo. Ct. App. | 1980
The plaintiff appeals from a summary judgment. The judgment was entered on the affirmative plea by the defendant of res judicata. The plaintiff contends that the entry of summary judgment without a prior hearing was error.
The summary judgment was entered on a petition for damages in two counts. Count I was for personal injury. Count II was for property damage. The petition pleaded that the casualty resulted from a collision at a specified site on a specified date between two motor vehicles, one operated by the plaintiff and the other by the defendant. The answer asserted that an earlier litigation by the plaintiff against the defendant and employer exonerated them of liability and pleaded that judgment as a collateral estoppel and res judicata to the subsequent petition. The affirmative plea was supported by transcripts of the prior proceeding and judgment. These documents were tendered as exhibits on the motion for summary judgment.
The plaintiff does not contest the legal sufficiency of the exhibits to support a summary judgment on the grounds asserted or that the entry rests on valid principle, but only that notice and hearing are essential precedents to summary judgment.
The summary judgment Rule 74.04 establishes a procedure for solution of disputes free from undue delay. It encompasses, nevertheless, a provision for hearing prior to judgment
The summary judgment for defendant is affirmed.
All concur.
. Rule 74.04(c): “The motion shall be served at least 10 days before hearing.”
. Rule 55.30: “Times and Places for Hearing Motions to be Established-Submission on Written Statements Without Oral Hearing,
(b) Submission Without Oral Hearing. To expedite its business, the court may make provision by rule or order for the submission and determination of motions without oral hearing upon brief written statements of reasons in support and in opposition. (Adopted Jan. 19, 1973, effective Sept. 1, 1973.)”
.“Rules of the Circuit Court of Jackson County Rule 8.04
2. A party filing any motion, except motions for new trial or motions which require proof by introduction of evidence (as distinguished from proof by affidavit ...) shall serve and file as
. In Boyer the court alluded to local [Rules of the 21st Judicial Circuit] Rule 12(c) which required proof of service of notice to call up a motion but found it unnecessary to ground opinion on whether that provision was violated.