2009 Kansas Code
Chapter 60 PROCEDURE, CIVIL
Article 2 RULES OF CIVIL PROCEDURE
60-227. Perpetuation of testimony.

60-227

Chapter 60.--PROCEDURE, CIVIL Article 2.--RULES OF CIVIL PROCEDURE

      60-227.   Perpetuation of testimony. (a) Deposition before action. A person who desires to perpetuate his or her own testimony or that of another person regarding any matter that may be cognizable in any court of the state may file a verified petition to the district court in the county of the residence of any expected adverse party; but if the subject matter of the expected action or proceeding is the validity of a will the petition shall be filed in the district court of the county in which the testator resides.

      (1)   Petition. The petition shall be entitled in the name of the petitioner and shall show: (I) that the petitioner or the petitioner's personal representatives, heirs, beneficiaries, successors or assigns may be parties to an action or proceeding cognizable in a court but are presently unable to bring or defend it, (II) the subject matter of the expected action or proceeding and his or her interest therein and a copy of any written instrument the validity or construction of which may be called in question or which is connected with the subject matter of the deposition, (III) the facts which the petitioner desires to establish by the proposed testimony and his or her reasons for desiring to perpetuate it, (IV) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (V) the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

      (2)   Notice and service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. The notice shall be served either within or without the state within the time and in the manner for personal service of summons or by restricted mail, or by any other manner affording actual notice as directed by order of the judge. The judge upon application and showing of extraordinary circumstances may prescribe a hearing on shorter notice.

      (3)   Order and examination. If satisfied that the petition is not for the purpose of discovery, and that its allowance may prevent future delay or failure of justice, and that the petitioner is unable to bring the contemplated action or cause it to be brought, the court shall order the testimony perpetuated, designating the deponents, the subject matter of their examination, when, where and before whom their deposition shall be taken, and whether orally or upon written interrogatories.

      (4)   Use of deposition. Subject to the same limitations and objections as though the deponent were testifying at the trial in person, a deposition taken in accordance with this section may be used as evidence in any action subsequently brought in any court, where the deposition is that of a party to the action, or where the issue is such that an interested party in the proceedings in which the deposition was taken had the right and opportunity for cross-examination with an interest and motive similar to that which the adverse party has in the action in which the deposition is offered. But, except where the deposition is that of a party to the action and is offered against the party, the deposition may not be used as evidence unless the deponent is unavailable as a witness at the trial.

      (b)   Pending appeal. If an appeal has been taken from a judgment or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in that court. In such case the party who desires to perpetuate the testimony may make a motion for leave to take the depositions, upon the same notice and service thereof as if the action was pending in that court. The motion shall show (1) the names and addresses of persons to be examined and the substance of the testimony which he or she expects to elicit from each; (2) the reasons for perpetuating their testimony. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by K.S.A. 60-234 and 60-235, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in this section for depositions taken in actions pending in the district court.

      (c)   Filing. Depositions taken under this section shall be filed with the court in which the petition is filed or the motion is made.

      (d)   Perpetuation by action. This section does not limit the power of a court to entertain an action to perpetuate testimony.

      (e)   Impeachment. No provision of this section is intended to limit the use of any deposition for the purpose of impeachment of the deponent when he or she is a witness in any action.

      (f)   Reciprocity. A deposition taken under similar procedure of another jurisdiction is admissible in this state to the same extent as a deposition taken under this act.

      History:   L. 1963, ch. 303, 60-227; Jan. 1, 1964.