A default judgment occurs when a defendant is served with a lawsuit and fails to properly respond. The plaintiff automatically wins by default and usually receives the relief requested in the lawsuit. A default can be interlocutory (non-final and usually as to liability only) or a full default judgment (final as to liability and damages).
Missouri law disfavors default judgments and has a strong preference for deciding cases on the merits. Brungard v. Risky’s, Inc., 240 S.W.3d 685, 687-88 (Mo. 2007). To further that preference, the Missouri Supreme Court Rules include a number of ways default judgments can be set aside. Rule 74.06 relates to some of the ways a default judgment can be vacated. For instance, per Rule 74.06(b)(4), a trial court “may relieve a party or his legal representative from a final judgment or order…[if] the judgment is void.” A judgment is void if the trial court that rendered the judgment lacked jurisdiction to do so. The party moving to set aside the default judgment has the burden to prove that the request can be granted.
In addition, Missouri case law has developed an additional requirement to support a motion to set aside a default. Specifically, the motion itself must be verified or otherwise be supported by sworn testimony or affidavit testimony. Hinton v. Proctor & Schwartz, Inc., 99 S.W.3d 454, 458 (Mo. Ct. App. 2003). It is insufficient to attach hearsay testimonial documentation in support of a motion to set aside default judgment as such testimony is unsworn and, thus, lacks the authenticity of sworn live testimony or affidavit testimony. Id.
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