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.
Notes of Decisions
Cited in
17
cases, 1953–1996 · leading case:
State v. Yates, 442 S.W.2d 21 (Mo. 1969).
State v. Yates, 442 S.W.2d 21 (Mo. 1969).
· cites it 6× “) Section 492.400 RSMo 1959 specifies six situations in which depositions may be read and used in evidence as if the witness were present and examined in open court.”
Gage v. Morse, 933 S.W.2d 410 (Mo. Ct. App. 1996).
· cites it 4× “With these principles in mind and also bearing in mind the practical problems presented by video tape depositions, we analyze Defendant's fourth point relied on.”
Myers v. Karchmer, 313 S.W.2d 697 (Mo. 1958).
· cites it 5× “” Defendants insisted that the deposition was inadmissible under Section 492.400 RSMo 1949, V.A.M.S., which states the circumstances under which a deposition “may be read and used as evidence in the cause.”
Kunzler v. Est. of Kunzler, 598 S.W.2d 139 (Mo. 1980).
· cites it 4× “Section 492.400, RSMo 1969, applicable at the time of this trial, sets out essentially the same conditions.”
State v. Wise, 879 S.W.2d 494 (Mo. 1994).
“After the court ruled that it would not grant a continuance, appellant had two weeks in which to secure McClain’s deposition which could have been read into the record under § 492.400. 12 The court did not abuse its discretion.”
Romandel v. Kansas City Pub. Serv. Co., 254 S.W.2d 585 (Mo. 1953).
· cites it 3× “Defendant's specific objection at the trial was, and its complaint in this court is, that the deposition itself was not admissible (under Section 492.400 RSMo 1949, V.A.M.S.) because the witness was "subject to the jurisdiction of the court," had not been subpoenaed and "was…”
State v. Jackson, 495 S.W.2d 80 (Mo. Ct. App. 1973).
· cites it 3× “-29 and Section 492.400 RSMo 1969, which provides for the use of a deposition when the witness is dead.”
Beis v. Dias, 859 S.W.2d 835 (Mo. Ct. App. 1993).
· cites it 2× “) Pointing to § 492.400, 4 RSMo 1986, and Rule 57.07, 5 the plaintiffs contend that the italicized portion of the above-quoted argument was an impermissible misstatement of the law and that the trial court had a duty to stop, restrain, or purge such misstatement once it…”
Glowczwski v. Foster, 359 S.W.2d 406 (Mo. Ct. App. 1962).
· cites it 3× “The first objection made at the time plaintiff offered the deposition in evidence, was on the basis that the witness was available under a subpoena and because he did not qualify under any of the provisions of Section 492.400 V.A.M.S. The second objection was to a hypothetical…”
Brown v. Kroger Co., 344 S.W.2d 80 (Mo. 1961).
· cites it 3× “2d 892, 895 [1], Defendant calls attention to Section 492.400 RSMo 1949, V.A.M.S., providing when a deposition may be read in evidence.”
DeMott v. Dillingham, 512 S.W.2d 918 (Mo. Ct. App. 1974).
· cites it 3× “[§ 492.400, RSMo. 1969, V.A.M.S.]. A deposition may not be read in evidence when the deponent is present in court except where it is offered to impeach the testimony of the witness or as an admission against his interest.”
Jenni v. E.R.B. Land, Inc., 541 S.W.2d 743 (Mo. Ct. App. 1976).
· cites it 3× “For many years it has been the law in this state that those methods of proof are not the exclusive means for proving the facts authorizing the reading of a deposition under the Rule or under the statute, § 492.400 RSMo. 1969. In Doyle v. St. Louis Transit Co.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.