Chapter 492 Oaths and Affirmations, Depositions and Perpetuation of Testimony

492.303 - Essential witness, defined — deposition may be taken by prosecutor, procedure — costs — videotape authorized, used when.

Steven Groce, Attorney Advertisement

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)

492.580 - Legal exceptions may be taken.

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

492.480 - General notice given, how and when.

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

492.080 - Depositions may be obtained conditionally.

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, 545.380, 545.400

Felony cases, state may take depositions, when, Const. Art. I § 18(b)

Public service commission, depositions in proceedings before, 386.420

Referees, depositions may be used in proceedings before, 515.160

Survey corners, deposition in proceedings to establish by testimony, 446.090

Unlawful detainer actions, depositions taken and used, 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.

492.180 - Notice, how served on party or attorney.

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

492.380 - Official character of officer in the United States, how attested.

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

492.280 - Production of documentary evidence on taking of deposition, when.

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.)

492.490 - Subpoenas to witnesses.

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

492.590 - Costs and expenses of taking depositions, how awarded and collected — limitations.

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*.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 7-01-97

*Transferred 2000; now 488.432

(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.).

492.190 - By whom served.

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

492.090 - Officers authorized to take depositions.

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).

492.290 - Witnesses to be examined on oath.

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

492.390 - Official character of officer in foreign country, how attested.

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

492.430 - Petition for commission to take depositions.

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 1-02-79

492.530 - Power of adjournment.

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

492.230 - To whom directed.

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

492.330 - Objections to competency or relevancy, how taken.

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

492.130 - Power and duty of the officer under the commission.

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

492.030 - Parties may affirm, when.

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

492.520 - Answers to be reduced to writing.

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

492.420 - Depositions may be taken to perpetuate testimony, when.

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

492.320 - Residence of witness certified by officer.

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

492.220 - Commission to examine witnesses on interrogatories when awarded.

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, 510.020, 510.060

492.020 - Oaths required to be taken before particular officer may be taken before others, when.

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

492.120 - Commission, how issued, to whom directed.

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

492.292 - Venue for deposition of employee of a publicly funded crime laboratory.

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)

492.304 - Visual and aural recordings of child under fourteen admissible, when.

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 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, 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.

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).

492.500 - Duty of officer.

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

492.400 - When depositions may be read.

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.

492.100 - Commissioners of foreign courts may compel attendance of witnesses.

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

492.300 - Adverse party may take depositions by giving notice, when.

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

492.200 - When notice shall be served.

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

492.155 - Powers of special commissioner — rulings on evidence, review.

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

492.410 - Evidence preserved in bill of exceptions may be used, how.

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

492.510 - Questions put to witnesses to be reduced to writing.

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

492.110 - Witness residing out of this state, commission to issue.

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

492.010 - Officers and notary public authorized to administer oaths.

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.

492.210 - Time may be shortened by court or judge in vacation.

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

492.310 - Depositions taken in foreign countries to be taken in language of the witness — must be translated.

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

492.040 - Officer shall adopt mode most binding on conscience, when.

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

492.140 - What officers out of this state may take depositions without commission.

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

492.340 - Deposition shall be submitted to witness for examination — signing of deposition.

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)

492.240 - Interrogatories to be annexed.

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

492.540 - Depositions, how certified and to whom delivered.

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

492.440 - By whom and how issued — to whom directed.

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

492.150 - Special commissioner appointed when, qualifications — time and place of depositions — enforcement of subpoenas issued by other officer.

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 1-02-79

492.050 - Parties to be sworn according to the ceremonies of their religion.

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

492.250 - Command of the commission.

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

492.350 - Certificate of officer taking depositions.

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

492.450 - Notice of time and place of taking depositions.

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

492.550 - May be sent by mail or otherwise, when.

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

492.270 - Officer may compel attendance of witness — contempt — if witness imprisoned, on what terms discharged.

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

492.370 - What constitutes sufficient evidence of the authentication of depositions.

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

492.170 - If they do not reside in this state, how.

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

492.070 - Oaths, affirmations, depositions of persons in military service, who may take — form — validation of those previously taken.

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. 20______.
(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

492.470 - Publication of notice to nonresidents.

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

492.570 - Depositions, legally taken, may be read, when.

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

492.360 - Exhibits to be enclosed with depositions and directed to clerk.

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

492.260 - Officer to propound interrogatories.

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

492.060 - Persons deemed to have been lawfully sworn, when.

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

492.160 - Notice to be given if the party or his attorney resides in this state, how.

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

492.560 - Duty of recorder on receiving deposition.

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

492.460 - If person is minor, notice to be served upon whom.

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.