Rule 91 | Habeas Corpus

First Adopted: June 24, 1982

Most Recently Effective: July 01, 1997

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.01 | Habeas Corpus – General – Who May Petition for – Forms of Action

(a) Proceedings in habeas corpus in a circuit court shall be as prescribed in this Rule 91 and in this Court or the court of appeals shall be as prescribed in Rule 84.22 to 84.26, inclusive, and this Rule 91. In all particulars not provided for by the foregoing provisions, proceedings in habeas corpus shall be governed by and conform to the rules of civil procedure and the existing rules of general law upon the subject. The court may, by order, direct the form of such further details of procedure as may be necessary to the orderly course of the action to give effect to the remedy.

(b) Any person restrained of liberty within this state may petition for a writ of habeas corpus to inquire into the cause of such restraint. Custody of a child may be the subject of a proceeding in habeas corpus.

(c) A habeas corpus proceeding shall be a civil action in which the person seeking relief is petitioner and the person against whom such relief is sought is respondent. If appropriate, there may be multiple petitioners or multiple respondents.

Committee Note – 1983

The source is prior Rule 91.01.

The second sentence concerning the custody of children being the subject of habeas corpus is not intended to change existing law as to when the remedy is available but has been added simply to call attention to the fact that the remedy may be available in certain situations.

Prior Rule 91.60 purports to give a habeas corpus remedy in child custody cases but there are not any reported cases that fit the very limited factual situation described in that rule. The remedy of habeas corpus in child custody cases has developed independent of statute or rule.

Prior Rule 91.60 has been deleted because it is misleading and is so narrow in scope that it is meaningless.

A habeas corpus action shall be styled in the name of the person whose liberty or custody is to be affected and the names of the petitioner and respondent thus:
In re ____________________
___________________, Petitioner
vs.
____________________, Respondent

See Rule 24.035 and Rule 29.15 for the exclusive remedy in certain situations.



(Rule adopted June 24, 1982, effective January 1, 1983. Amended September 28, 1993, effective January 1, 1994; amended October 22, 1996, effective July 1, 1997.)

(Committee note amended February 20, 1987, effective January 1, 1988.)

First Adopted: June 24, 1982

Most Recently Effective: July 01, 1991

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.02 | Petition to What Court First Made

(a) Except as provided in subdivision (b) of this Rule 91.02, when a person who is held in custody on a charge of crime seeks the benefit of this Rule 91, the petition in the first instance shall be to a circuit or associate circuit judge for the county in which the person is held in custody if at the time of the petition such judge is in the county, unless good cause is shown for filing the petition in a higher court. The petitioner shall give reasonable notice of the time and place of filing the petition to the prosecuting attorney for the county in which the petition is to be filed, if at the time thereof the attorney is in the county. Upon such notice, the attorney shall attend the hearing of the petition on behalf of the state.

(b) If a person is held in custody pursuant to a conviction for a capital crime and a sentence of death and this Court has affirmed the conviction and sentence, any petition seeking the benefit of this Rule 91 may be filed in this Court in the first instance. The petitioner shall give reasonable notice of the time and place of filing the petition to the attorney general of this state, who shall represent the state in the matter. Any such petition filed in a state court other than this Court shall be deemed to have been filed in this Court. Any clerk filing such a petition shall give notice for the filing of the petition to the clerk of this Court by telephone or by other expeditious means and shall forward the petition to this Court immediately.

Committee Note – 1983

The source is prior Rule 91.59.


(Adopted June 24, 1982, effective January 1, 1983. Amended November 20, 1990, effective July 1, 1991.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1994

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.03 | Petition – By Whom Made

The petition for a writ of habeas corpus shall be signed by the person for whose relief it is intended or by some person acting in such person's behalf.

Committee Note – 1983

This is substantially the same as the first sentence of prior Rule 91.02.



(Adopted June 24, 1982, effective January 1, 1983. Amended September 28, 1993, effective January 1, 1994.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.04 | Petition – Contents – Attachments

(a) Contents. The petition shall state:

(1) The name or description of the person who is restraining the person's liberty;

(2) The place where the person is detained;

(3) Facts showing that the restraint is illegal or improper; and

(4) That no petition for the relief sought has been made to any higher court to the one to which the petition is presented or that the higher court denied the writ without prejudice to proceeding in a lower court.

(b) Attachment to Petition. If the restraint is by virtue of any warrant, order, or process, a copy thereof must accompany the petition, unless reasons are set forth in the petition constituting good cause for failure to do so.

Committee Note – 1983

The sources are prior Rules 91.02 and 91.03.



(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.05 | Writ or Show Cause Order to be Granted Without Delay

A court to which a petition for a writ of habeas corpus is presented shall forthwith grant the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the petition that the person restrained is not entitled thereto.

Committee Note – 1983

The source is prior Rule 91.04.

The only procedural change is the addition of the federal practice of allowing the court to issue a show cause order so that it will not always be necessary to produce the person restrained at the commencement of the proceedings.



(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1994

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.06 | Writ Shall Issue Without Petition – When

Whenever any court of record, or any judge thereof, shall have evidence from any judicial proceedings had before such court or judge that any person is illegally confined or restrained of liberty within the jurisdiction of such court or judge, it shall be the duty of the court or judge to issue a writ of habeas corpus for the person's relief, although no petition be presented for such writ.

Committee Note – 1983

This is substantially the same as prior Rule 91.05.


(Adopted June 24, 1982, effective January 1, 1983. Amended September 28, 1993, effective January 1, 1994.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.07 | Form of Writ or Order – To Whom Directed

Every writ shall be captioned with the style of the case, shall be entitled "Writ of Habeas Corpus," and shall be issued in the name of the State of Missouri. All such writs or orders to show cause shall be issued under the seal of the court, unless issued by a judge out of court in which event the writ or order shall be signed by the judge. The writ or order shall be directed to the person having custody of the person restrained and shall designate a time for filing an answer to the petition, which shall not be later than three days after service. For good cause additional time may be allowed.

Committee Note – 1983

The sources are prior Rules 91.06, 91.07, 91.09 and 91.15.



(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.08 | Service of Writ or Order

(a) By Delivery. The writ of habeas corpus or the order to show cause may be served by delivering the same to the person to whom it is directed or to any other person having custody of the person restrained.

(b) By Offer of Delivery and Refusal. When the person to be served refuses to receive service of the writ or order to show cause, the offer of the server to deliver the same and such refusal, when these facts are shown on the server's return, shall be service.

(c) By Posting. When service of the writ or order to show cause cannot be made pursuant to paragraph (a) or (b), service may be made by affixing the writ or order in a conspicuous place on the dwelling house of the person to be served or the place where the person is restrained.

Committee Note – 1983

The source of paragraph (a) is prior Rule 91.11.

The source of paragraph (b) is present Rule 54.20(f).

The source of paragraph (c) is prior Rule 91.12


(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1994

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.09 | Answer – Time For – Contents – Attachments

(a) Time. The person served shall file an answer at the time designated in the writ or order.

(b) Contents. The answer shall be directed to the petition and shall also contain:

(1) A statement whether the person who is allegedly restrained is being restrained by respondent and, if so, the circumstances and authority for such restraint;

(2) If the person filing the answer shall have had the person under restraint at any time before service of the writ or order and has transferred the person to another, a statement to whom, at what time, for what cause, and by what authority such transfer took place.

(c) Attachment to Answer. If the person is restrained by virtue of any writ, order, warrant, or other written authority, a copy shall be attached to the answer.

Committee Note – 1983

The source of paragraph (a) is prior Rule 91.14.

The sources of paragraph (b) are prior Rules 91.16 and 91.17.

The source of paragraph (c) is prior Rule 91.16.


(Adopted June 24, 1982, effective January 1, 1983. Amended September 28, 1993, effective January 1, 1994.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.10 | Pleadings – Amendments and Supplementation

Any pleading may be amended or supplemented as provided in Rule 55.33.

Committee Note – 1983

This is new.



(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.11 | Person Restrained to be Produced With Answer to Petition – Exception – Custody Pending Judgment

If a person filing an answer has the custody of the person for whose benefit the writ was issued, he shall produce such person before the court according to the command of the writ unless the writ directs otherwise. Pending determination of the issues, the court may either commit the restrained person to the custody of the sheriff or make such other orders pertaining to the care or custody as circumstances may require. The person filing an answer may state facts showing that because of sickness or other infirmity the restrained person cannot be brought before the court. Upon making such finding the court may proceed in the absence of such person.

Committee Note – 1983

The sources are prior Rules 91.18, 91.22, 91.45 and 91.46.


(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.12 | Reply to Answer

By written reply the petitioner or person restrained may deny any facts set forth in the answer and allege any other material facts.

Committee Note – 1983

The source is prior Rule 91.28.


(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.13 | Disobedience of Writ – Further Proceedings

The person served shall comply with the writ or order to show cause even though directed to him by the wrong name or description or to another person.

Unless a sufficient excuse is shown, failure to comply with the writ shall authorize the court to order the incarceration of the delinquent until he complies.

The court may make any other orders necessary to bring before the court the person for whose benefit the writ of habeas corpus is issued.

Committee Note – 1983

The sources of the first two paragraphs are prior Rules 91.09, 91.19 and 91.20.

The sources of the third paragraph are prior Rules 91.22 and 91.23.


(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.14 | Condition of Release

If the person for whose relief a writ of habeas corpus has been issued is charged with a bailable offense, the court in which the answer is to be filed shall set conditions of release pursuant to Rule 33.

Committee Note – 1983

This is new.

Compare: Prior Rules 91.41 and 91.42.


(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.15 | Time of Hearing

When the answer is filed, the court may proceed with the hearing not more than five days after the filing of the answer unless the person being restrained requests a longer time or for good cause additional time is allowed.

Committee Note – 1983

The source is prior Rule 91.27.



(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.16 | Production of Restrained Person at Hearing

The person upon whom the writ is served shall produce the restrained person at the hearing unless the court otherwise orders.

Committee Note – 1983

The source is prior Rule 91.18.



(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.17 | Duty of Court on Final Hearing

The court shall forthwith hear and determine the matter.

Committee Note – 1983

The source is prior Rule 91.30.



(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.18 | Order of Discharge

If no legal cause is shown for the restraint, the court shall forthwith order the person discharged.

Committee Note – 1983

The sources are prior Rules 91.31 and 91.40.


(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.19 | Order of Discharge – How Enforced

Any order of discharge may be enforced by incarceration in the same manner as provided in Rule 91.13 or by contempt or by any other proper order of the court.

Committee Note – 1983

The source is prior Rule 91.48.


(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.20 | Order of Remand or Other Disposition

If legal cause is shown for the restraint, the person shall be returned to the restraint from which he was taken or committed to such other restraint as may be proper.

Committee Note – 1983

The sources are prior Rules 91.32 and 91.43.


(Adopted June 24, 1982, eff. Jan. 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1994

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.21 | Warrant in Lieu of Writ

When the court finds that any person is illegally restrained of liberty and that there is good cause to believe that the person will be removed from the state or suffer some irreparable injury before the person can be relieved by a writ of habeas corpus, any court authorized to issue such writs may issue a warrant reciting the facts directed to any officer or other person commanding the officer or person to take the person so restrained and bring that person forthwith before the court to be dealt with according to law. A copy of the warrant shall be served on the restraining person together with an order directing the restraining person to file an answer as provided in Rule 91.09.

Proceedings thereafter shall be as if a writ of habeas corpus had been originally issued.

Committee Note – 1983

The sources are prior Rules 91.50 and 91.52.


(Adopted June 24, 1982, effective January 1, 1983. Amended September 28, 1993, effective January 1, 1994.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.22 | Second Writ not to Issue By Lower Court

When a petition for a writ of habeas corpus has been denied by a higher court, a lower court shall not issue the writ unless the order in the higher court denying the writ is without prejudice to proceeding in a lower court.

Committee Note – 1983

The source is prior Rule 91.58.


(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.23 | Certain Persons not Entitled to Discharge

No person shall be discharged under the provisions of this Rule 91 who is in custody or held by virtue of any legal engagement or enlistment in the armed services of the United States or who, being subject to the rules and articles of war, is confined by one legally acting under the authority thereof or who is held as a prisoner of war under the authority of the United States or who is in custody for any treason, felony or other high misdemeanor committed in any other state or territory of the United States and, by the Constitution and laws of the United States, ought to be delivered up to such state or territory.

Committee Note – 1983

This is the same as prior Rule 91.33.


(Adopted June 24, 1982, effective January 1, 1983.)

First Adopted: June 24, 1982

Most Recently Effective: January 01, 1983

Rule 91 | Rules of Civil Procedure | Rules Relating to Special Actions | Habeas Corpus

91.24 – 91.61 | [REPEALED]

[Repealed by order dated June 24, 1982, effective January 1, 1983.]