If the court shall be of the opinion that the affidavit is insufficient, it shall permit it to be amended. If, after such amendment, the affidavit does not contain a sufficient statement of facts, the court shall overrule it. If the court finds the affidavit sufficient, the civil action shall be continued unless the opposing party will admit that the witness, if present, would swear to the facts set out in the affidavit, in which event the civil action shall not be continued. The party moving for the continuance may read as the evidence of such witness the facts stated in the affidavit. The opposing party may disprove the facts disclosed, or prove any contradictory statements made by the absent witness, or otherwise impeach the credibility of the absent witness.
Rule 65.05.Affidavit for Continuance--Amendment--Admission of Facts Set Forth.
Part I · Rule 65: Continuances · Last amended January 1, 1994 · Last verified July 22, 2026
In one sentenceRule 65.05 tells a court how to handle a continuance affidavit that falls short — allowing amendment, then granting the continuance unless the opposing party admits the absent witness would testify as stated, in which case the trial proceeds and the movant may read the affidavit as that witness’s evidence.
Full Text of Rule 65.05
Amendment History
Amended Jan. 19, 1973, eff. Sept. 1, 1973; Amended Sept. 28, 1993, eff. Jan. 1, 1994; Amended Jan. 19, 1973, eff. Sept. 1, 1973.
Official Comment
This is substantially the same as prior Rule 65.05 except that the last sentence was substituted for: “. . . the opposing party may disprove the facts disclosed or prove any contradictory statements made by such absent witness in relation to the matter in issue and on trial.”
Plain-English Summary
Rule 65.05 picks up where Rule 65.04 leaves off, addressing what happens once a continuance affidavit is on file. If the court thinks the affidavit is insufficient, it must permit the movant to amend it. If the affidavit still falls short after that chance to fix it, the court overrules the motion and the case proceeds without the continuance. If the court instead finds the affidavit sufficient, the case is continued — unless the opposing party heads that off by admitting that the absent witness, if present, would testify to the facts set out in the affidavit.
That admission does not eliminate the evidence; it substitutes for it. The movant can read the facts stated in the affidavit into the trial as if the witness had testified to them in person, while the opposing party retains every ordinary tool to fight back against that substitute testimony — disproving the stated facts, showing that the absent witness made contradictory statements elsewhere, or otherwise attacking the witness’s credibility.
Frequently Asked Questions
What happens if my continuance affidavit is missing something the court requires?
The court must let you amend it. If it is still insufficient after that chance to fix it, the court overrules the continuance motion.
Can the opposing party avoid a continuance?
Yes, by admitting that the absent witness, if present, would testify to the facts stated in the affidavit — that admission lets the case proceed without the continuance.
If the other side admits what the witness would say, do I lose that testimony?
No. You may read the facts stated in the affidavit into the record as the absent witness’s evidence, in place of live testimony.
Can the opposing party still challenge that substitute testimony?
Yes, they can disprove the facts, show the absent witness made contradictory statements, or otherwise impeach that witness’s credibility.
Does the court have to accept a deficient affidavit as-is?
No, but it must give the movant the chance to amend it first; only if it remains insufficient after amendment does the court overrule the motion.
Source & verification. Rule text and amendment history are
reproduced verbatim from the Missouri State & Federal Court Rules, adopted by the
Supreme Court of Missouri. Last verified July 22, 2026. ·
Official source
Also known as: continuance affidavit amendment missouriadmission of absent witness testimony missouriinsufficient continuance affidavit missouriopposing admission avoids continuance missouri