Printable Format60-240. Scheduling cases for trial; continuances. (a) Scheduling cases for trial. Each district court must provide by rule for scheduling trials. The court must give priority to actions entitled to priority by law.
(b) Continuances. For good cause, the court may continue an action at any stage of the proceedings on just terms. When a continuance is granted due to the absence of evidence, it must be at the cost of the party requesting the continuance, unless the court orders otherwise.
(c) Motion for continuance based on absence of material witness, document, thing or other evidence; affidavit or declaration. (1) Affidavit or declaration in support of motions. The court need not entertain a motion for a continuance based on the absence of a material witness, document, thing or other evidence unless supported by an affidavit or a declaration pursuant to K.S.A. 53-601, and amendments thereto.
(A) An affidavit or declaration in support of a motion for a continuance based on the absence of a material witness must state:
(i) The name of the witness, and, if known, the witness' residence;
(ii) the substance of the witness' expected testimony and the basis for the expectation;
(iii) that the affiant or declarant believes the statements in the affidavit or declaration to be true; and
(iv) the efforts that have been made to procure the witness' attendance or deposition.
(B) An affidavit or declaration in support of a motion for a continuance based on the absence of a material document, thing or other evidence must contain similar statements, with appropriate modifications.
(2) Objections. A party objecting to a continuance may not contradict the statement of the substance of the absent witness' expected testimony or the substance of the absent document, thing or other evidence, but may contradict any other statement in the affidavit or declaration.
(3) Granting or denying the motion. The court may deny the motion if the adverse party admits that the absent witness would, if present, testify as stated in the affidavit or declaration, and agrees that the affidavit or declaration be received as evidence at the trial and considered as though the witness were present and so testified. The granting or denial of a continuance is discretionary in all cases, regardless of compliance with the provisions of this subsection.
History: L. 1963, ch. 303, 60-240; L. 2010, ch. 135, § 109; July 1.
Source or prior law:
(a). G.S. 1868, ch. 80, §§ 313–315; L. 1870, ch. 87, §§ 8–10; L. 1871, ch. 116, §§ 3–5; L. 1909, ch. 182, §§ 311–313; R.S. 1923, 60-2930 through 60-2932.
(b). G.S. 1868, ch. 80, § 316; L. 1909, ch. 182, § 314; R.S. 1923, 60-2933.
(c). G.S. 1868, ch. 80, § 317; L. 1909, ch. 182, § 315; R.S. 1923, 60-2934.
Cross References to Related Sections:
Amending pleadings to conform to evidence, continuances, see 60-215.
Substitution of parties, see 60-225.
Summary judgment, see 60-256.
CASE ANNOTATIONS
Prior law cases, see G.S. 1949, 60-2930 through 60-2934 and the 1961 Supp. thereto.
1. Defendant in criminal action who refuses to pay costs accrued to obtain continuance cannot complain of denial of request. State v. Earley, 192 Kan. 144, 147, 386 P.2d 221.
2. Motion for continuance on account of absent witness must be made upon affidavit. State v. Earley, 192 Kan. 144, 146, 386 P.2d 221.
3. Made applicable to criminal cases by K.S.A. 62-1414. State v. Guthrie, 192 Kan. 659, 661, 662, 663, 664, 665, 391 P.2d 95.
4. Granting of continuance is discretionary in trial court. State v. Zimmer, 198 Kan. 479, 485, 426 P.2d 267.
5. Granting or refusing of continuance rests in sound discretion of court; assignment of case for trial did not abuse discretion so as to prejudice defendant; history of section discussed. Scott v. Keyse, 200 Kan. 625, 626, 628, 629, 438 P.2d 112.
6. Granting of continuance is within the discretion of trial court; party seeking continuance not justified in relying on mere promises of witness to be present at trial and testify. State v. Milum, 202 Kan. 196, 199, 200, 447 P.2d 801.
7. Denial of motion for continuance upheld; petitioner failed to support motion with required affidavit. Jackson v. State, 204 Kan. 823, 827, 465 P.2d 927.
8. Subsection (b) cited; governs the assignment of cases for trial and the continuance thereof. Pacific Indemnity Co. v. Berge, 205 Kan. 755, 759, 473 P.2d 48.
9. Under subsection (c), a trial court need not entertain a motion for a continuance based on the absence of a material witness or on the want of any material document, thing or other evidence unless such motion is supported by an affidavit in compliance with the provisions of the statute. Pacific Indemnity Co. v. Berge, 205 Kan. 755, 759, 760, 761, 473 P.2d 48.
10. No abuse of discretion in denying oral request for continuance where no satisfactory explanation of delay in request appeared. State v. Hale, 206 Kan. 521, 523, 479 P.2d 902.
11. Facts sustained trial court's decision in refusing continuance. Tilley v. International Harvester Co., 208 Kan. 75, 80, 490 P.2d 392.
12. Construed in holding trial court did not abuse its discretion in refusing a further continuance of the trial. Fouts v. Armstrong Commercial Laundry Distributing Co., 209 Kan. 59, 64, 495 P.2d 1390.
13. Subsection (c) cited; denial of motion for time to prepare affidavit prejudicial. Winkelman v. Allen, 214 Kan. 22, 34, 519 P.2d 1377.
14. Paragraph (b) applied; no abuse of discretion in refusing to grant motion for continuance. Security National Bank v. City of Olathe, 225 Kan. 220, 222, 589 P.2d 589.
15. A continuance is within the discretion of the trial court; discretion abused; judgment reversed. State v. Jones, 226 Kan. 503, 509, 601 P.2d 1135.
16. Motion for continuance within discretion of trial court; no abuse shown. State ex rel. Miller v. Richardson, 229 Kan. 234, 239, 623 P.2d 1317.
17. Plaintiff may not complain of refusal to grant continuance after failing to comply with subsection (c). Cheek v. Hird, 9 Kan. App. 2d 248, 250, 675 P.2d 935 (1984).
18. District court need not entertain motion to continue for absence of material witness (plaintiff) without affidavit in subsection (c). Eferakeya v. Twin City State Bank, 13 Kan. App. 2d 197, 201, 766 P.2d 837 (1989).
19. Conditions imposed for continuance requested by plaintiff within court's discretion; compared to dismissal without prejudice. McKissick v. Jackson, 15 Kan. App. 2d 508, 509, 809 P.2d 1249 (1991).
20. Cited in eminent domain proceeding; motion denied to modify pretrial order and grant continuance. Miller v. Glacier Development Co., 284 Kan. 476, 494, 161 P.3d 730 (2007).
21. No abuse of discretion in continuing jury trial pending screening panel reports in medical malpractice case. Walker v. Regehr, 41 Kan. App. 2d 352, 202 P.3d 712 (2009).