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Rule 65.04 – Application for a Continuance on Account of Absence of Witnesses Shall Show What

May 13, 2021 | Civil Procedure, Missouri

An application for a continuance on account of the absence of witnesses or their evidence shall show:

(1) The facts showing the materiality of the evidence sought to be obtained and due diligence upon the part of the applicant to obtain such witness or testimony;
(2) The name and residence of such witness, if known, or, if not known, the use of diligence to obtain the same and also facts showing reasonable grounds for belief that the attendance or testimony of such witness will be procured within a reasonable time;
(3) What particular facts the applicant believes the witness will prove, and that the applicant knows of no other person whose evidence or attendance the applicant could have procured at the trial by whom the applicant can prove or so fully prove the same facts;
(4) That such witness is not absent by the connivance, consent or procurement of the applicant, and such application is not made for vexation or delay but in good faith for the purpose of obtaining a fair and impartial trial.

Mo. R. Civ. P. 65.04

Amended Jan. 19, 1973, eff. Sept. 1, 1973; Sept. 28, 1993, eff. Jan. 1, 1994.

Committee Note – 1959

This Rule is the same as Section 94 of the 1943 Code (Section 510.100, RSMo 1959) except that ‘at the date to which the action may be continued or set for trial’ in Section 94(2) is changed to read “within a reasonable time.”

Committee Note – 1974

This is the same as prior Rule 65.04.