TITLE SEVEN — JUDGMENT
Rule 42. Relief from Judgment or Order
Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake, or a mistake arising from oversight or omission, whenever one is found in a judgment, order, or other part of the record. The court may do so upon motion of any party or upon its own initiative, with or without notice, and at any time. After an appeal has been docketed in the Supreme Court and while it is pending, such a mistake may be corrected only with the leave of the Supreme Court. A correction under this subdivision is effected by an amended or corrected judgment or order entered through the judicial route under Rule 40(10); the original entry remains upon the docket.
Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and upon such terms as are just, the court may relieve a party or that party’s legal representative from a final judgment, order, or proceeding for the following reasons:
mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence which by reasonable diligence could not have been discovered in time to move for a new trial under Rule 35;
fraud, whether heretofore denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party;
the judgment is void;
the judgment has been satisfied, released, or discharged; or it is based upon an earlier judgment which has been reversed or otherwise vacated; or applying it prospectively is no longer equitable; or
any other reason justifying relief from the operation of the judgment.
Time. A motion under Rule 42(2) shall be made within a reasonable time. In addition:
a motion upon the grounds stated in Rule 42(2)(1), (2), or (3) shall be made not more than thirty (30) days after the entry of the judgment or order, or after the date of the proceeding complained of;
a motion upon the grounds stated in Rule 42(2)(5) or (6) shall be made not more than ninety (90) days after the entry of the judgment or order, except that a motion asserting that the judgment has been satisfied, released, or discharged may be made at any time; and
a motion asserting that the judgment is void under Rule 42(2)(4) may be made at any time.
The court may not enlarge the periods fixed by this subdivision, except upon a showing that the movant was prevented from acting by fraud or misconduct of an adverse party.
Form and Contents of the Motion. A motion under this rule shall identify the judgment or order by its date and time of entry and by its docket entry, state the ground relied upon with particularity, state the facts supporting the ground, and, where relief is sought under Rule 42(2)(1), (2), (3), or (6), state the claim or defence the movant would assert if relief were granted. The motion shall be supported by affidavit or by declaration conforming to Rule 38(10).
Procedure. The motion is filed through the general filing channel and governed by Rule 7.1. The court shall afford every adverse party notice and an opportunity to respond. The court may hear the motion in the proceeding communications of the case, may receive evidence, and may condition relief upon such terms as are just, including the payment of costs and expenses caused by the vacated judgment.
Effect on Finality. A motion under this rule does not affect the finality of the judgment or suspend its operation. A stay pending disposition of the motion may be sought under Rule 44(3).
Relief Barred by a Pending Appeal. If a timely motion is made for relief which the court lacks authority to grant because an appeal has been docketed in the Supreme Court and is pending, the court may:
defer consideration of the motion;
deny the motion; or
state that it would grant the motion if the Supreme Court remands for that purpose, or that the motion raises a substantial issue.
Where the court makes a statement under subdivision (3), the movant shall promptly notify the Clerk of the Supreme Court. The court may decide the motion if the Supreme Court remands for that purpose.
Other Powers Preserved. This rule does not limit the power of the court to:
entertain an independent action to relieve a party from a judgment, order, or proceeding;
grant relief to a defendant who was never personally notified of the action and who did not appear, upon a showing made within a reasonable time after actual notice; or
set aside a judgment for fraud upon the court.
Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and the writs of coram nobis, coram vobis, and audita querela. Nothing in this subdivision affects the writ of habeas corpus, the writ of mandamus, the writ of quo warranto, or the writ of execution, which are governed by Rule 50, Rule 56, Const. art. V §§ 5 and 6, and 7 R. Stat. §§ 133.001 through 133.104.
Relief from Delinquency. Relief from an order of delinquency, and modification or discharge of interest accrued upon a delinquent judgment, are governed by 7 R. Stat. §§ 132.107 through 132.111 and by Rule 50.2, and not by this rule. A motion under this rule directed to the underlying judgment does not of itself vacate an order of delinquency; the movant shall seek relief from the order of delinquency separately.
Effect of Vacatur upon Enforcement. Where a judgment is vacated, any order of delinquency and any writ of execution founded upon it shall be recalled by the court, and the court shall order service of the recall upon the Secretary of State where an order of delinquency was previously served under 7 R. Stat. § 132.112, and upon the sheriff where a writ of execution is outstanding.