When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.
Rule 55.28.Evidence on Motions.
Part I · Rule 55: Pleadings, Motions and Hearing · Last amended September 1, 1973 · Last verified July 22, 2026
In one sentenceRule 55.28 allows a court deciding a motion that turns on facts not appearing in the record to consider affidavits from the parties, or to direct that the matter be heard in whole or in part through oral testimony or depositions.
Full Text of Rule 55.28
Amendment History
Adopted Jan. 19, 1973, eff. Sept. 1, 1973.
Official Comment
This is the same as Rule 43(e) of the Federal Rules of Civil Procedure. It is broader than prior Rule 55.31(b) as it allows the use of oral testimony and depositions as well as affidavits.
Plain-English Summary
Some motions turn on facts that aren’t already part of the record — facts the pleadings and prior filings don’t establish. Rule 55.28 lets the court hear that motion on affidavits submitted by the parties, giving each side a way to put supporting facts before the court without a full evidentiary hearing.
The rule doesn’t stop there. The court also has discretion to direct that the matter be heard wholly or partly through oral testimony or depositions instead of, or in addition to, affidavits, giving it flexibility to match the format of the proof to what the motion requires.
Frequently Asked Questions
Can a Missouri court hear live testimony on a motion?
Yes. Rule 55.28 lets the court direct that a motion be heard wholly or partly on oral testimony.
What evidence can support a motion based on facts not in the record?
Affidavits from the parties, or oral testimony or depositions if the court directs it.
Are affidavits required for a motion under this rule?
No, they’re one option the court may use; the court can instead or additionally use oral testimony or depositions.
Can a court order depositions to resolve a motion?
Yes, Rule 55.28 gives the court that discretion when facts outside the record are at issue.
Does this rule apply to every type of motion?
It applies specifically to a motion based on facts not appearing of record.
Source & verification. Rule text and amendment history are
reproduced verbatim from the Missouri State & Federal Court Rules, adopted by the
Supreme Court of Missouri. Last verified July 22, 2026. ·
Official source
Also known as: evidence on motionsaffidavits supporting a motionoral testimony on motion hearingdepositions for motion hearing