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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : EVIDENCE AND LEGAL ADVERTISEMENTS
Chapter : Chapter 492 Oaths and Affirmations, Depositions and Perpetuation of Testimony
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Every court and judge, justice and clerk thereof, notaries
public, certified court reporters and certified shorthand reporters,
shall respectively have power to administer oaths and affirmations to
witnesses and others concerning any thing or proceeding pending* before
them, respectively, and to administer oaths and take affidavits and
depositions within their respective jurisdictions, in all cases where
oaths and affirmations are required by law to be taken. (RSMo 1939 §
1884, A.L. 1988 S.B. 425)
Prior revisions: 1929 § 1720; 1919 § 5407; 1909 § 6351
*Word "depending" appears in original rolls, an apparent typographical
error.
Whenever any oath or affirmation is required by law to be taken
before a particular court or officer, the same may be done before any
other court or officer empowered to administer oaths, unless it is
expressly prohibited; and when no court or officer is named by whom an
oath may be administered or affidavit taken, the same may be done by any
court or officer authorized to administer oaths. (RSMo 1939 § 1885)
Prior revisions: 1929 § 1721; 1919 § 5408; 1909 § 6352
Every person who shall declare that he has conscientious
scruples against taking an oath or swearing in any form shall be
permitted to make his solemn declaration or affirmation in the following
form: "You do solemnly declare and affirm", etc., concluding with the
words "under the pains and penalties of perjury". (RSMo 1939 § 1881)
Prior revisions: 1929 § 1717; 1919 § 5404; 1909 § 6348
Whenever the court or officer by whom any person is about to be
sworn shall be satisfied that such person has any peculiar mode of
swearing connected with or in addition to the usual form of administering
oaths, which is to him of more solemn and binding obligation, the court
or officer shall adopt that mode which shall appear to be most binding on
the conscience of the person to be sworn. (RSMo 1939 § 1882)
Prior revisions: 1929 § 1718; 1919 § 5405; 1909 § 6349
Every person, believing in any other than the Christian
religion, shall be sworn according to the peculiar ceremonies of his
religion, if there be any such ceremonies. (RSMo 1939 § 1883)
Prior revisions: 1929 § 1719; 1919 § 5406; 1909 § 6350
In all cases in which an oath or affirmation is required or
authorized by law, every person swearing, affirming or declaring, in
whatever form, shall be deemed to have been lawfully sworn, and to be
guilty of perjury for corruptly and falsely swearing, affirming or
declaring, in the same manner as if he had sworn by laying his hand on
the gospels and kissing them. (RSMo 1939 § 1886)
Prior revisions: 1929 § 1722; 1919 § 5409; 1909 § 6353
(1986) The failure of a court to accept testimony of witness who refuses
to swear or affirm, but is willing "to declare that he would testify
subject to the penalty of perjury" held reversible error. State v.
Spulak, 720 S.W.2d 396 (Mo.App.S.D.).
1. Any commissioned officer, other than a commissioned warrant
officer, of any of the armed forces of the United States, whether or not
on active duty, may administer oaths and affirmations to, and to take
depositions, and affidavits of, any member of any of the armed forces of
the United States, whether or not on active duty, with like effect as if
the same were administered or taken within the state of Missouri by a
notary public.
2. Such officer shall certify the act, stating the time and place
thereof, over his signature, setting forth his grade, serial number,
branch of service (army, navy, etc.), and permanent mailing address. If
such officer shall omit from his certificate the place thereof, serial
number, branch of service, and permanent mailing address, or any of them,
it shall be deemed to have been done for reasons of security and shall
not invalidate such certificate. The signature of any such officer,
together with his grade, shall be prima facie evidence of his authority.
3. Any form of jurat complying with the requirements of this section may
be used, and the following form shall be taken to satisfy all
requirements of this section:
With the Armed Forces)
of the United States ) ss
at ..................)
(Body of instrument)
Subscribed and sworn to (affirmed) by ................, to me known to be
a member of the armed forces of the United States, on active duty
therewith, before me, a commissioned officer of the armed forces of the
United States, on active duty therewith, this ............. day of
.............., A.D. 19.. .
(Signature) (Serial Number)
................................................................. (Grade)
(Branch of service: Army, Navy, etc.)
.................................................................
(Permanent Mailing Address)
.................................................................
4. All such oaths, affirmations, affidavits, and depositions heretofore
made and which were not in conformity with the requirements of the laws
at that time, but are in conformity with the requirements of this
section, are hereby validated and legalized for all purposes from and
after June 12, 1991. It shall not be necessary to rerecord any such
instrument. (RSMo 1939 § 1948, A.L. 1951 p. 533, A.L. 1991 S.B. 358)
Prior revisions: 1929 § 1784; 1919 § 5471
Effective 6-12-91
Any party to a suit pending in any court in this state may
obtain the deposition of any witness, to be used in such suit,
conditionally. (RSMo 1939 § 1917)
Prior revisions: 1929 § 1753; 1919 § 5440; 1909 § 6384
CROSS REFERENCES: Criminal case--defendant may take and use depositions,
when, RSMo 545.380, 545.400 Felony cases, state may take depositions,
when, Const. Art. I § 18(b) Public service commission, depositions in
proceedings before, RSMo 386.420 Referees, depositions may be used in
proceedings before, RSMo 515.160 Survey corners, deposition in
proceedings to establish by testimony, RSMo 446.090 Unlawful detainer
actions, depositions taken and used, RSMo 534.180, 534.190
(1955) Where witness was old, sick and feeble and evidence indicated the
taking of his oral testimony might endanger his life, court and special
commissioner had discretion to deny the right to take his oral testimony
by deposition. State ex rel. Nichols v. Killoren (A.), 285 S.W.2d 38.
Depositions may be taken by some one of the following officers:
(1) If taken within this state, by some judge, justice, associate circuit
judge, notary public or clerk of any court having a seal, in vacation of
court, mayor or chief officer of a city or town having a seal of office;
(2) If taken without this state, by some officer out of this state
appointed by authority of the laws of this state to take depositions, or
by some consul or commercial or diplomatic representative of the United
States, having a seal, or mayor or chief officer of any city, town or
borough, having a seal of office, or by some judge, justice of the peace,
or other judicial officer, or by some notary public, within the
government where the witness may be found. (RSMo 1939 § 1920)
Prior revisions: 1929 § 1756; 1919 § 5443; 1909 § 6387
(1988) Nonparty deposition of out-of-state witness taken by telephone is
permissible and proper evidence for jury to consider. Patton v. May Dept.
Stores Co., 762 S.W.2d 38 (Mo.banc).
Commissioners appointed by any other state, or any of the
territories of the United States, or the District of Columbia, for the
purpose of taking depositions and affidavits, and the acknowledgments of
deeds, powers of attorney and other instruments of writing, and residing
in this state, shall have the same power to compel the attendance of
witnesses in the taking of depositions and the proof of deeds, and in all
other cases where it may be necessary in the discharge of the duties of
their office, as is now given by law to any court of record in this
state, in compelling the attendance of witnesses before such court. (RSMo
1939 § 1914)
Prior revisions: 1929 § 1750; 1919 § 5437; 1909 § 6381
When the witness resides out of this state, the party desiring
his testimony may sue out of the court in which the suit is pending, or
out of the office of the clerk thereof, a commission to take the
deposition of the witness. (RSMo 1939 § 1918)
Prior revisions: 1929 § 1754; 1919 § 5441; 1909 § 6385
The commission shall be under the seal of the court, and shall
be directed to any officer herein authorized to take depositions within
the government where the witness may be found. (RSMo 1939 § 1921)
Prior revisions: 1929 § 1757; 1919 § 5444; 1909 § 6388
The commission shall authorize such officer to cause to come
before him such person or persons as shall be named to him by the party
suing for the same, and shall command such officer to examine such person
touching his knowledge of anything relating to the matter in controversy,
and to reduce such examination to writing, and return the same, annexed
to the commission, to the court wherein or the associate circuit judge
before whom the action is pending, with all convenient speed. (RSMo 1939
§ 1922)
Prior revisions: 1929 § 1758; 1919 § 5445; 1909 § 6389
Depositions may be taken by any officer appointed out of this
state, by authority of the laws of this state to take depositions without
any commission or order from any court or clerk. (RSMo 1939 § 1924)
Prior revisions: 1929 § 1760; 1919 § 5447; 1909 § 6391
1. When the witness is found in this state, the deposition may
be taken by the proper officer without any commission or order of the
court or clerk except that whenever a notice is given, as required by
law, in a cause pending in any circuit court of any county or of the city
of St. Louis to take such deposition, the party upon whom such notice is
served, as provided by law, may, at any time after the service of such
notice and before the taking of such deposition shall be commenced, after
having given the party or his attorney of record on whose behalf such
notice was served, one day's written notice by delivering a copy thereof
to all adverse parties or their attorneys of record, of his intention to
apply for the appointment of a special commissioner to take such
deposition and of the time and place of making such application, make an
application, accompanied by a service copy of the notice of application,
to the court or to the judge thereof to appoint a special commissioner to
take such deposition under such notice. The court or judge may, in its or
his discretion, appoint a special commissioner to take the deposition.
Such commissioner shall be an attorney of record, disinterested and of no
kin to any party in the cause and may be a resident of any county or the
city of St. Louis. The court or judge shall designate in the order the
time and place for the taking of the deposition by the special
commissioner but thereafter the commissioner may continue such taking
from time to time.
2. The special commissioner shall alone be authorized to take the
depositions but any subpoena which has been issued by an authorized
officer and has been served upon the witness, as required by law,
commanding his presence at the time and place designated in the notice is
sufficient to require the attendance of the witness before the special
commissioner at the time and place designated in the order appointing the
special commissioner. In the event the witness does not attend in
obedience to the subpoena, the special commissioner is authorized to
compel his attendance by attachment as if the subpoena had been issued by
him under the authority conferred on him by law. (RSMo 1939 § 1923, A.L.
1959 S.B. 247, A.L. 1978 H.B. 1634)
Prior revisions: 1929 § 1759; 1919 § 5446; 1909 § 6390
Effective 1-2-79
1. The special commissioner, for the purpose of taking the
depositions and certifying and returning them as required by law,
possesses the same power and authority and is subject to the same duties
and obligations as are now or hereafter conferred and imposed by law on
officers authorized to take depositions.
2. The special commissioner also has the power and authority to hear and
determine all objections to testimony and evidence and to admit or
exclude the same in the same manner and to the same extent as the court
would have in the trial of the cause before the court.
3. Whenever the special commissioner sustains objections to testimony or
evidence, the party against whom the ruling is made has the right to have
the ruling reported by the special commissioner to the court. It is the
duty of the special commissioner to report the same at such time as he
deems advisable either during or immediately after the close of the
taking of depositions in the cause to the court.
4. Upon the report being presented to the court, the court shall
forthwith pass upon the ruling so reported and make an order affirming or
reversing it. In the event the ruling is reversed, the court shall enter
an order of record directing the special commissioner to admit the
testimony or evidence so excluded.
5. Whenever the special commissioner reports his ruling to the court, he
shall adjourn the taking of depositions to such time and place as he may
direct and enforce the attendance of any witness thereat by attachment or
otherwise, so as to enable a party to have any question answered which he
has ruled out and which the court may direct to be answered, together
with such other questions as may appear proper under the ruling of the
court reversing the special commissioner. (RSMo 1939 § 1923, A.L. 1959
S.B. 247 § 492.150)
Prior revisions: 1929 § 1759; 1919 § 5446; 1909 § 6390
In all cases where depositions shall be taken by virtue of
sections 492.080 to 492.150, the party at whose instance they are taken
shall cause notice in writing of the time and place of taking them to be
served on the adverse party, or his attorney of record in the cause,
where such party or his attorney resides in this state. (RSMo 1939 § 1925)
Prior revisions: 1929 § 1761; 1919 § 5448; 1909 § 6392
If neither the adverse party nor his attorney reside in this
state, posting such notice in the office of the associate circuit judge
or of the clerk of the court where the suit is pending shall be deemed
sufficient notice. (RSMo 1939 § 1926)
Prior revisions: 1929 § 1762; 1919 § 5449; 1909 § 6393
Such notice, when served on the adverse party or his attorney,
shall be:
(1) By delivering to him a copy thereof;
(2) By leaving a copy at his usual place of abode, with some member of
his family above the age of fifteen years, or at his office with some
clerk above the age of fifteen years; and
(3) In case the adverse party is a railroad or other corporation, such
notice may be served by delivering a copy thereof to any station agent of
such railroad corporation, or to any local agent of such other
corporation, at his office in the county in which the suit was brought or
is pending. (RSMo 1939 § 1927)
Prior revisions: 1929 § 1763; 1919 § 5450; 1909 § 6394
The service of any notice required by sections 492.080 to
492.400 may be by any sheriff, marshal, constable, or by any competent
witness, who shall make affidavit to the service. (RSMo 1939 § 1928)
Prior revisions: 1929 § 1764; 1919 § 5451; 1909 § 6395
In all cases where notice is required by sections 492.080 to
492.400, the same shall be served at least three days before the day of
taking the depositions, and one day additional for every fifty miles for
the first three hundred miles, and beyond that one additional day for
each one hundred miles of distance from the place of serving or setting
up such notice, to the place of taking the depositions, except as
otherwise provided in said sections; provided, that not more than one
notice to take depositions in the same case shall be given for the same
day. (RSMo 1939 § 1929)
Prior revisions: 1929 § 1765; 1919 § 5452; 1909 § 6396
When it is desired to take depositions to be read in suits
pending in any of the courts of this state, the court in which any suit
is pending, or the judge thereof in vacation, may shorten the time for
which notice is to be given, as now required, upon application of the
party desiring it, with due notice of such application to the opposite
party or his attorney; and notice of taking depositions, given for such
time as is designated by the court or judge, shall in all cases be
sufficient. (RSMo 1939 § 1930, A.L. 1959 S.B. 247)
Prior revisions: 1929 § 1766; 1919 § 5453; 1909 § 6397
When a party to any suit pending in any court of record in this
state shall make application to such court in term time, or to the judge
thereof in vacation, for a commission to take the examination of
witnesses, and shall support the application by affidavit, and shall have
given to the adverse party reasonable notice of such application, the
court or judge may, upon such terms as it may think proper, award such
commission. (RSMo 1939 § 1931)
Prior revisions: 1929 § 1767; 1919 § 5454; 1909 § 6398
CROSS REFERENCE: Interrogatories, generally, RSMo 510.020, 510.060
The commission shall be to such person as the court or judge
shall appoint, to be named in the commission, or to some proper officer
of the government where the witnesses may be, commanding such person or
officer to examine such witnesses, naming them, upon interrogatories.
(RSMo 1939 § 1932)
Prior revisions: 1929 § 1768; 1919 § 5455; 1909 § 6399
The interrogatories shall be annexed to the commission, and
shall be drawn and signed by the parties or their counsel in the cause,
under the sanction and direction of the court, or judge thereof. (RSMo
1939 § 1933)
Prior revisions: 1929 § 1769; 1919 § 5456; 1909 § 6400
The commission shall further command the person or officer to
whom the same is directed to reduce the examination of the witnesses and
their answers to the interrogatories annexed to writing, and return the
same, with the commission, into the court with all convenient speed.
(RSMo 1939 § 1934)
Prior revisions: 1929 § 1770; 1919 § 5457; 1909 § 6401
Such person or other officer shall examine the witnesses named
in the commission, touching the matters contained in the interrogatories
annexed, and none others, at any time and place when and where such
witness may be found. (RSMo 1939 § 1935)
Prior revisions: 1929 § 1771; 1919 § 5458; 1909 § 6402
1. Every person, judge or other officer of the state required to
take the depositions or examination of witnesses, in pursuance of
sections 492.080 to 492.400 or by virtue of any commission issuing out of
any court of record in this or any other government, shall have power to
issue subpoenas for witnesses to appear and testify, and to compel their
attendance, in the same manner and under like penalties as any court of
record of this state.
2. Any person summoned as a witness in virtue of the provisions of
sections 492.080 to 492.400 and attending, who shall refuse to give
evidence which may be lawfully required to be given by him, on oath or
affirmation, may be committed to prison by the officer or person
authorized to take his deposition or testimony, there to remain without
bail until he gives such evidence, or until he be discharged by due
course of law; provided, that in case such person be discharged from such
commitment or imprisonment upon habeas corpus sued therefor, the party or
parties litigant, in whose behalf the refused evidence shall have been
required, shall be liable to pay such person the costs by him incurred in
effecting such discharge; and the judge or court hearing the application
for discharge may, in its discretion, at the time of such discharge,
allow a further sum of not exceeding twenty-five dollars for an
attorney's fee for prosecuting the proceedings on habeas corpus, to be
paid by such party or parties litigant to the person so discharged; and
provided further, that until such costs and attorney's fee, if one be
allowed, are paid or tendered to such person, he shall not be required
further to depose or testify in the cause in which he was so summoned.
(RSMo 1939 § 1937)
Prior revisions: 1929 § 1773; 1919 § 5460; 1909 § 6404
Upon order of the court in which a cause is pending, a subpoena
may command the production of objects and documentary evidence on the
taking of a deposition, and the court may also order a party to produce
objects and documentary evidence on the taking of a deposition. (L. 1943
p. 353 § 142, A.L. 1985 S.B. 5, et al.)
Every witness examined, in pursuance of sections 492.080 to
492.400, shall be sworn or affirmed to testify the whole truth, and his
examination shall be reduced to writing, or taken in shorthand and
transcribed, in writing, in the presence of the person or officer before
whom the same shall be taken. (RSMo 1939 § 1936)
Prior revisions: 1929 § 1772; 1919 § 5459; 1909 § 6403
Unless otherwise ordered by the court, any deposition taken of
an employee of a publicly funded crime laboratory located within the
state, where the subject matter of the deposition concerns the official
duties of the employee, shall be taken in the county where the employee
is employed by the laboratory. (L. 2005 S.B. 216)
When the party causing depositions to be taken under a notice
shall have completed the taking thereof, the adverse party may, before
the same or any other officer authorized to take depositions, and at the
same place, proceed immediately, or on the next day, to take any
depositions he may desire to have read in the cause, and may continue the
taking thereof from day to day, at said place, and between the hours
specified in the notice, until he shall have taken all he desires; but in
order thereto, he shall, before or during the time of the taking of the
depositions on behalf of the other party, give such other party, or the
attorney representing him, notice of his intention to do so, and of the
person before whom he proposes to take such deposition. (RSMo 1939 § 1942)
Prior revisions: 1929 § 1778; 1919 § 5465; 1909 § 6409
1. Upon the hearing of an application by a prosecuting attorney,
served upon an accused or his counsel not less than five days before the
date the deposition will be taken, and a finding that the witness is an
essential witness, the state may take the deposition of the witness. A
person is an "essential witness" if he is an eyewitness to a felony or if
a conviction would not be obtained without his testimony because the
testimony would establish an element of the felony that cannot be proven
in any other manner. An accused and his spouse are not essential
witnesses under any circumstances.
2. The court shall make such orders in connection with the taking of the
deposition as will fully protect the rights of personal confrontation and
cross-examination of the witness by the defendant and shall make a
finding that the prosecuting attorney has fully complied with all of his
obligations involving discovery respecting the defendant and that the
defendant has had sufficient time to adequately prepare for such
deposition. Upon application of the prosecuting attorney, the accused
shall be ordered to attend the taking of the deposition. The reasonable
personal and traveling expenses of the accused and his counsel shall be
taxed as costs and paid as provided by law.
3. The deposition may be taken if the witness is an essential witness.
The deposition may be videotaped. At the trial or upon any hearing, any
deposition obtained in accordance with this section, so far as it is
otherwise admissible under the rules of evidence, may be used by either
party for any reason stated in Missouri supreme court rules of criminal
procedure. In addition, the deposition may be used by the state if the
witness refuses to testify or fails to attend the trial or hearing if
this refusal or failure to attend the trial or hearing is not produced by
the action of the state. (L. 1983 S.B. 24 § 6)
1. In addition to the admissibility of a statement under the
provisions of section 492.303, the visual and aural recording of a verbal
or nonverbal statement of a child when under the age of fourteen who is
alleged to be a victim of an offense under the provisions of chapter 565,
566 or 568, RSMo, is admissible into evidence if:
(1) No attorney for either party was present when the statement was made;
except that, for any statement taken at a state-funded child assessment
center as provided for in subsection 2 of section 210.001, RSMo, an
attorney representing the state of Missouri in a criminal investigation
may, as a member of a multidisciplinary investigation team, observe the
taking of such statement, but such attorney shall not be present in the
room where the interview is being conducted;
(2) The recording is both visual and aural and is recorded on film or
videotape or by other electronic means;
(3) The recording equipment was capable of making an accurate recording,
the operator of the equipment was competent, and the recording is
accurate and has not been altered;
(4) The statement was not made in response to questioning calculated to
lead the child to make a particular statement or to act in a particular
way;
(5) Every voice on the recording is identified;
(6) The person conducting the interview of the child in the recording is
present at the proceeding and available to testify or be cross-examined
by either party; and
(7) The defendant or the attorney for the defendant is afforded an
opportunity to view the recording before it is offered into evidence.
2. If the child does not testify at the proceeding, the visual and aural
recording of a verbal or nonverbal statement of the child shall not be
admissible under this section unless the recording qualifies for
admission under section 491.075, RSMo.
3. If the visual and aural recording of a verbal or nonverbal statement
of a child is admissible under this section and the child testifies at
the proceeding, it shall be admissible in addition to the testimony of
the child at the proceeding whether or not it repeats or duplicates the
child's testimony.
4. As used in this section, a nonverbal statement shall be defined as any
demonstration of the child by his or her actions, facial expressions,
demonstrations with a doll or other visual aid whether or not this
demonstration is accompanied by words. (L. 1985 H.B. 366, et al., A.L.
1992 S.B. 638, A.L. 2004 H.B. 1453)
(1987) It was improper enhancement for the prosecution to introduce a
videotape pursuant to this section and then call the child whose
testimony was videotaped to the stand to give testimony covering all the
elements of the case including elements covered in videotaped testimony
has been introduced to stand pursuant to subsection 2 of this section
thus limited. State v. Seever, 733 S.W.2d 438 (Mo.banc.)
(1991) Statute which permits the introduction of videotaped recording of
statement of child sex-abuse victim does not violate defendant's right to
due process. Sixth Amendment right of confrontation is satisfied because
the statute requires that the child witness be available to testify at
trial, under oath, and subject to the fact finder's observation of
demeanor. State v. Schaal, 806 S.W.2d 659 (Mo.banc).
When depositions are taken in foreign countries of a language
other than the English language, they shall be taken in the language
spoken by the witness, and in such language be reduced to writing by the
officer taking the same. When any such deposition shall be filed in any
case, in any court in this state, the party filing the same shall,
without unreasonable delay thereafter, cause the same to be truly
translated into the English language, and such translation to be filed
with its original, but only for information to the adverse party. (RSMo
1939 § 1947)
Prior revisions: 1929 § 1783; 1919 § 5470; 1909 § 6414
When the officer taking depositions in virtue of this law shall,
in his certificate, state the place of residence of the witness, such
statement shall be prima facie evidence of the facts. (RSMo 1939 § 1945)
Prior revisions: 1929 § 1781; 1919 § 5468; 1909 § 6412
Every objection to the competency or credibility of a witness
examined, or the competency or relevancy of any question put to him, or
of any answer given by him, may be made in the same manner and with the
like effect as if such witness were personally present; and any failure
to make such objection at the taking of the depositions, although the
objecting party may be present, shall not prejudice his right to make
such objections at the trial of the cause. (RSMo 1939 § 1946)
Prior revisions: 1929 § 1782; 1919 § 5469; 1909 § 6413
When the testimony is fully transcribed the deposition shall be
submitted to the witness for examination and shall be read to or by him,
unless such examination and reading are waived by the witness and by the
parties. Any changes in form or substance which the witness desires to
make shall be entered upon the deposition by the officer with a statement
of the reasons given by the witness for making them. The deposition shall
then be signed by the witness, unless the parties by stipulation waive
the signing or the witness is ill or cannot be found, or is dead or
refuses to sign. If the deposition is not signed by the witness, the
officer shall sign it and state on the record the fact of the waiver or
of the illness, or death or absence of the witness or the fact of the
refusal to sign together with the reason, if any, given therefor; and the
deposition may then be used as fully as though signed, unless on a motion
to suppress the court holds that the reasons given for the refusal to
sign requires rejection of the deposition in whole or in part. (L. 1943
p. 353 § 144)
To every deposition or examination, taken by virtue of sections
492.080 to 492.400 shall be appended the certificate of the person or
officer by or before whom the same shall be taken, showing that the
deposition or examination was reduced to writing in his presence, and was
subscribed and sworn to by the witnesses, and the place at which, and the
days, and within the hours, when the same was taken. (RSMo 1939 § 1938)
Prior revisions: 1929 § 1774; 1919 § 5461; 1909 § 6405
Depositions or examinations taken by virtue of any of the
provisions of sections 492.080 to 492.400 and all exhibits produced to
the person or officer taking such examinations or depositions, and proved
or referred to by any witness, together with the commission and
interrogatories, if any, shall be enclosed, sealed up, and directed to
the clerk of the court in which or the associate circuit judge before
whom the action is pending. (RSMo 1939 § 1943)
Prior revisions: 1929 § 1779; 1919 § 5466; 1909 § 6410
Depositions or examinations taken by any person or officer in
this state authorized by sections 492.080 to 492.400 or by any person or
officer out of this state appointed by authority of the laws of this
state, to take depositions, or by any consul, commercial or diplomatic
representative of the United States, or mayor or chief officer of any
city, town or borough having a seal of office, or by any notary public,
and certified by such person or officer in his official character, and
accompanied by his seal of office, if there be one, shall, to all intents
and purposes, be sufficient evidence of the authentication of such
depositions or examinations. (RSMo 1939 § 1939)
Prior revisions: 1929 § 1775; 1919 § 5462; 1909 § 6406
The official character of such officer taking depositions or
examinations within any of the United States, or any of the territories
of the United States, or in the District of Columbia, authenticated and
proved as aforesaid, or by the certificate and seal of the clerk of any
court of record within any county of the state or territory, or within
the district where such officer resides, and certifying, also, that such
officer was an acting judge or associate circuit judge, and duly
commissioned as such, at the time when the depositions were taken, shall
be a sufficient authentication thereof. (RSMo 1939 § 1940)
Prior revisions: 1929 § 1776; 1919 § 5463; 1909 § 6407
Depositions or examinations taken by any person or judicial
officer without the United States, by virtue of any commission issued in
pursuance of sections 492.080 to 492.400 shall be, except as herein
otherwise provided, accompanied by a certificate of the official
character of said officer, attested by the seal of state, or of a court
of the government in which the depositions or examinations were taken.
(RSMo 1939 § 1941)
Prior revisions: 1929 § 1777; 1919 § 5464; 1909 § 6408
1. Examinations or depositions taken and returned in conformity
to the provisions of sections 492.080 to 492.400 may be read and used as
evidence in the cause in which they were taken, as if the witnesses were
present and examined in open court on the trial thereof.
2. The facts which would authorize the reading of the deposition may be
established by the testimony of the deposing witness or the certificate
of the officer taking the deposition or the testimony of the person or
officer who attempted to serve the witness with a subpoena
(1) If the witness resides or is gone out of the state;
(2) If he is dead;
(3) If by reason of age, sickness or bodily infirmity he is unable to or
cannot safely attend court;
(4) If he resides in a county other than that in which the trial is held,
or if he has gone a greater distance than forty miles from the place of
trial without the consent, connivance or collusion of the party requiring
his testimony;
(5) If he is a judge of a court of record, a practicing attorney or
physician and engaged in the discharge of his official or professional
duty at the time of the trial;
(6) If the witness is absent without the consent, connivance or collusion
of the party requiring his testimony and the party, in the exercise of
due diligence, has been unable to procure the attendance of the deponent
by subpoena. (RSMo 1939 § 1944, A.L. 1959 S.B. 116)
Prior revisions: 1929 § 1780; 1919 § 5467; 1909 § 6411
(1972) Trial court's permission to use deposition was not abuse of
discretion where deposition showed that the witness had moved frequently
during preceding three years and was offered on the grounds that at time
of trial witness had gone to Kansas for four weeks prior to trial and had
been reached by telephone at a "Kansas number". Adkison v. Hannah (Mo.),
475 S.W.2d 39.
Whenever any competent evidence shall have been preserved in any
bill of exceptions in a cause, the same may be thereafter used in the
same manner and with like effect as if such testimony had been preserved
in a deposition in said cause, but the party against whom such testimony
of any witness may be used shall be permitted to prove any matters
contradictory thereof as though such witness were present and testifying
in person. (RSMo 1939 § 1878)
Prior revisions: 1929 § 1714; 1919 § 5401; 1909 § 6345
Depositions of witnesses to perpetuate testimony may be taken,
whether the person desiring the taking of the same is a party, or expects
to be a party, to a suit pending or about to be commenced or not, in any
court of this state, and the object is to perpetuate the contents of any
lost deed or other instrument of writing, or the remembrance of any fact,
matter or thing necessary to the recovery, security or defense of any
estate or property, real or personal, or any interest therein, or any
other personal right. (RSMo 1939 § 1953)
Prior revisions: 1929 § 1789; 1919 § 5476; 1909 § 6419
A commission shall be granted to take such depositions by any
judge of the supreme court, the court of appeals, or of any circuit
court, except a municipal judge, on the presentation of a petition, in
writing, of one or more parties, supported by his or their affidavit, or
the affidavit of some credible person, setting forth the nature of his or
their interest, right or claim, the facts intended to be proved, the
names of the individuals whose testimony is desired, and the place or
places of their residence. (RSMo 1939 § 1954, A.L. 1973 S.B. 263, A.L.
1978 H.B. 1634)
Prior revisions: 1929 § 1790; 1919 § 5477; 1909 § 6420
Effective 1-2-79
The commission shall be issued by the clerk of the court in
which the judge granting the same presides, and, being witnessed by the
clerk and the seal of the court, shall be directed to any judge,
associate circuit judge, notary public, or clerk of any court of record,
being in the county where such testimony is to be taken, requiring such
judge, associate circuit judge, notary or clerk to take the depositions
of the witnesses therein named; or, in case the witness or witnesses
whose testimony is desired reside out of this state, such commission may
be directed to and executed by any clerk or judge of a court of record or
notary public in any of the United States. (RSMo 1939 § 1955)
Prior revisions: 1929 § 1791; 1919 § 5478; 1909 § 6421
The party applying for the commission shall give notice, in
writing, of the time and place of taking such depositions, to every
person who may be known to be interested, his or their agent or attorney,
at least thirty days before the taking of the same; and a copy of the
petition and affidavit upon which the commission was granted shall
accompany such notice. (RSMo 1939 § 1956)
Prior revisions: 1929 § 1792; 1919 § 5479; 1909 § 6422
In case the person interested be a minor, the notice shall be
served on the guardian of such minor, and on such minor, if over age of
fourteen years, and residing within this state. A guardian ad litem may
be appointed by the judge granting the commission, when there is no
guardian. (RSMo 1939 § 1957)
Prior revisions: 1929 § 1793; 1919 § 5480; 1909 § 6423
The publication of such notice in some newspaper printed in this
state, at least three weeks consecutively, the last insertion to be
twenty days before the day of taking the depositions, shall be sufficient
notice to all persons residing without the state. (RSMo 1939 § 1958)
Prior revisions: 1929 § 1794; 1919 § 5481; 1909 § 6424
Parties applying for commissions shall, in addition to the
notice required by sections 492.450 to 492.470, give a general notice, in
the nearest newspaper to the place where the depositions are to be taken,
for four successive weeks, of the time and place of taking the
depositions, and the object thereof. (RSMo 1939 § 1959)
Prior revisions: 1929 § 1795; 1919 § 5482; 1909 § 6425
The officer named in the commission may issue a subpoena to such
witnesses, requiring them to appear and testify at a time and place
therein named, and may enforce obedience thereto by attachment. (RSMo
1939 § 1960)
Prior revisions: 1929 § 1796; 1919 § 5483; 1909 § 6426
Such officer shall attend at the time and place appointed for
taking such depositions. (RSMo 1939 § 1961)
Prior revisions: 1929 § 1797; 1919 § 5484; 1909 § 6427
If it shall appear to such judge, associate circuit judge or
clerk that notice has been given as required by sections 492.420 to
492.590, such officer shall then and there reduce to writing all the
questions put to the witnesses by the party desiring such depositions,
and also all the questions put by all and every person attending, who
shall feel interested, who shall have liberty to examine and
cross-examine the witnesses. (RSMo 1939 § 1962)
Prior revisions: 1929 § 1798; 1919 § 5485; 1909 § 6428
Such officers shall also reduce to writing all the answers of
the witnesses to such questions; and all such questions and answers shall
be written in the English language, and, being distinctly read to such
witnesses, shall be sworn to and subscribed by them. (RSMo 1939 § 1963)
Prior revisions: 1929 § 1799; 1919 § 5486; 1909 § 6429
The officer shall have power to adjourn, from day to day, the
taking of such depositions, when the same shall be necessary. (RSMo 1939
§ 1964)
Prior revisions: 1929 § 1800; 1919 § 5487; 1909 § 6430
The officer taking such depositions shall attach thereto his
certificate, stating the time and place when and where such depositions
were taken, that the witnesses were duly sworn as to the truth of their
depositions, and that they subscribed the same, and shall enclose them,
together with the commission and the evidence of notice; and the whole,
being carefully sealed up, shall be delivered by the officer to the
recorder of the county in which the suit is pending, or in which the
property or matter is situate or belongs, to which such depositions
relate. (RSMo 1939 § 1965)
Prior revisions: 1929 § 1801; 1919 § 5488; 1909 § 6431
If the officer taking such depositions reside at such distance
from the recorder's office where such depositions properly belong as to
prevent an immediate delivery thereof, then it shall be lawful to send
the same by mail or other safe conveyance. (RSMo 1939 § 1966)
Prior revisions: 1929 § 1802; 1919 § 5489; 1909 § 6432
The recorder of the county where such depositions properly
belong shall, on receiving the same, endorse the manner of their
transmission to him, and immediately record the depositions, with the
accompanying papers, and his certificate as to the manner of their
transmission, and shall make his certificate on the back of the
depositions, that the same, together with the accompanying papers, naming
them, were by him duly recorded, and deliver the original depositions and
accompanying papers to the party on whose petition the commission issued.
(RSMo 1939 § 1967)
Prior revisions: 1929 § 1803; 1919 § 5490; 1909 § 6433
Depositions taken and certified in conformity to sections
492.420 to 492.560, or duly certified copies of the record of such
depositions, may be used and read as evidence in any cause or judicial
proceeding to which they relate, in favor of any parties thereto, or any
or either of them, or his or their personal representatives, heirs or
assigns, or their legal representatives
(1) If the deponent is dead;
(2) If he be unable to give testimony, by reason of mental incapacity;
(3) If he be rendered incompetent, by judgment of law;
(4) If he be removed, so that his testimony cannot be obtained. (RSMo
1939 § 1968, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 1804; 1919 § 5491; 1909 § 6434
All legal exceptions may be taken and allowed to the reading of
such depositions, in any trial in which the same may be offered in
evidence. (RSMo 1939 § 1969)
Prior revisions: 1929 § 1805; 1919 § 5492; 1909 § 6435
1. The costs and expenses of depositions, whether originals or
copies, or related court reporter, notarial, or other fees of recording
the same, shall be awarded as a judgment in favor of the party or parties
requesting the same, and collected in the manner provided by section
514.460*, RSMo. Any party incurring any such costs or expenses may
request the taxing of such costs or expenses actually incurred by that
party whether or not such depositions were taken at the instance of that
party or some other party to the suit or suits, provided, however, that
any judgment awarded for copies of depositions shall be limited to the
cost of one copy per party, except upon leave of court.
2. The costs and expenses so incurred shall be certified by the reporter
taking the same and shall be further limited by the court in which the
action is pending at the request of either party with said limitation
based on:
(1) The relevancy and probative value of the testimony offered by
deponent;
(2) The time required in the taking of the deposition;
(3) The reasonableness of the charge made by the reporter;
(4) The availability of stenographers or shorthand reporters in the area
where the deposition is taken;
(5) Charges made by other stenographers or shorthand reporters in the
community. (RSMo 1939 § 1970, A.L. 1951 p. 535, A.L. 1985 S.B. 5, et al.,
A.L. 1989 S.B. 127, et al., A.L. 1996 S.B. 869)
Prior revisions: 1929 § 1806; 1919 § 5493; 1909 § 6436
Effective 7-1-97
(1998) Word "incurred" in statute does not mean "paid". It means to "to
become liable for". Burwick v. Wood, 959 S.W.2d 951 (Mo.App. S.D.).
*Transferred 2000; now 488.432
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