Mo. Rev. Stat. » Chapter 535
Missouri Revised Statutes

Mo. Rev. Stat. § 535.040 (2026)

Upon return of summons, cause to be heard

✓ current as of May 2026
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  535.040.  Upon return of summons, cause to be heard — landlord not liable, when — landlord notification of property left by tenant. — 1.  Upon the return of the summons executed, the judge shall set the case on the first available court date and shall proceed to hear the cause, and if it shall appear that the rent which is due has been demanded of the tenant, lessee or persons occupying the property, and that payment has not been made, and if the payment of such rent, with all costs, shall not be tendered before the judge, on the hearing of the cause, the judge shall render judgment that the landlord recover the possession of the premises so rented or leased, and also the debt for the amount of the rent then due, with all court costs and shall issue an execution upon such judgment, commanding the officer to put the landlord into immediate possession of the property leased or rented, and to make the debt and costs of the goods and chattels of the defendant.  No money judgment shall be granted to the plaintiff if the defendant is in default and service was by the posting procedure provided in section 535.030 unless the defendant otherwise enters an appearance.  The officer shall deliver possession of the property to the landlord within five days from the time of receiving the execution, and the officer shall proceed upon the execution to collect the debt and costs, and return the writ, as in the case of other executions.  If the plaintiff so elects, the plaintiff may sue for possession alone, without asking for recovery of the rent due.

  2.  Except for willful, wanton, or malicious acts or omissions, neither the landlord nor his or her successors, assigns, agents, nor representatives shall be liable to any tenant or subtenant for loss or damage to any household goods, furnishings, fixtures, or any other personal property left in or at the dwelling by the tenant or subtenant of such dwelling, by the reason of the landlord's removal or disposal of the property under a court-ordered execution for possession of the premises.

  3.  Notwithstanding the provisions of subsection 2 of this section, if, after the sheriff has completed the court-ordered execution, property is left by the tenant in or at the dwelling bearing a conspicuous permanent label or marking identifying it as the property of a third party, the landlord shall notify the third party by certified mail with a return receipt requested.  The third party shall be given an opportunity to recover such property within five business days of the date such notice is received.  If the landlord is unable to notify the third party, the landlord may remove or dispose of such property and shall incur no liability for any loss or damage thereto.

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(RSMo 1939 § 2996, A.L. 1945 p. 1107, A.L. 1978 H.B. 1634, A.L. 1985 S.B. 5, et al., A.L. 1986 S.B. 741, A.L. 1997 H.B. 361, A.L. 2009 S.B. 231)

(1978) Held, not unconstitutional to require court to hear case without jury in magistrate court since jury trial could later be had as a matter of right in circuit court. Rice v. Lucas (Mo.), 560 S.W.2d 850.

Notes of Decisions
Cited in 15 cases, 1967–2017 · leading case: Brainchild Holdings, LLC v. Cameron, 534 S.W.3d 243 (Mo. 2017).
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Brainchild Holdings, LLC v. Cameron, 534 S.W.3d 243 (Mo. 2017). · cites it 9× “Because a tenant in Missouri could obtain a trial by jury at some point in the process, Rice held the requirement in section 535.040, RSMo 1969, did not violate the tenant’s right to a jury trial.”
Farinella v. Croft, 922 S.W.2d 755 (Mo. 1996). · cites it 4× “" § 535.040, RSMo 1994. The petition is claiming rent due at the time of the hearing, which in most instances will be the date of judgment.”
The Medve Grp. v. Sombright, 163 S.W.3d 453 (Mo. Ct. App. 2005). · cites it 6× “We are likewise not persuaded by Medve’s argument that it is excused from the' above well-settled pleading requirements by the language of Section 535.040, which provides for the trial court to “render judgment that the landlord recover .”
Detling v. Edelbrock, 671 S.W.2d 265 (Mo. 1984). · cites it 2× “Our decision in Rice addressed only the issue of the constitutionality of § 535.040, RSMo 1969. We noted with respect to the reliance on the implied warranty of habitability that ”[t]he ap-propriatness of this and other defenses and counterclaims raised by tenant .”
WEA Crestwood Plaza, L.L.C. v. Flamers Charburgers, Inc., 24 S.W.3d 1 (Mo. Ct. App. 2000). · cites it 3× “See Section 535.040 RSMo. Second, it is well-settled in Missouri that a party can bring successive claims on the same contract for damages that have not accrued as of the time of entry of judgment in the prior action.”
K.O. Real Est., LLC v. O'Toole, 291 S.W.3d 780 (Mo. Ct. App. 2009). · cites it 3× “The tenant argued on appeal that the landlord’s failure to state the exact amount of rent hindered its right under Section 535.040, RSMo (Cum.Supp. 1997) to retain possession of the premises by paying the rent due, with all costs, at any time before judgment was rendered.”
Cooper v. Ratley, 916 S.W.2d 868 (Mo. Ct. App. 1996). · cites it 5× “Section 535.040, RSMo 1994, permits recovery by an original lessor of “possession of the premises so rented or leased, and also his debt for the amount of the rent then due, .”
Rice v. Lucas, 560 S.W.2d 850 (Mo. 1978). · cites it 2× “After hearing, the circuit court issued a written opinion and the following order and judgment: “ORDER, ADJUDGE, DECLARE AND DECREE AS FOLLOWS: “1) That Section 535.040 R.S.Mo.1969, insofar as it denies a trial by jury to an indigent defendant, is unconstitutional and invalid…”
Gaines v. Corning, 672 S.W.2d 699 (Mo. Ct. App. 1984). · cites it 3× “Section 535.040 RSMo 1978 provides that a tenant may avoid eviction by paying the rent due either after suit is filed or at the time of the hearing.”
Dixon v. Davis, 521 S.W.2d 442 (Mo. 1975). · cites it 2× “Section 535.040 provides that in a landlord-tenant action brought pursuant to that chapter, “upon the return of the summons executed, the magistrate shall proceed to hear the cause without a jury.”
B-W Acceptance Corp. v. Benack, 423 S.W.2d 215 (Mo. Ct. App. 1967). “” By § 535.040 the owner may sue either for possession and rent or for possession alone.”
Hoodenpyle v. Tactor Indus., Inc., 595 S.W.2d 309 (Mo. Ct. App. 1979). “1051 (1912), and § 535.040, tendered the past due rent and costs, thus defeating the action for possession.”
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