60-227. Perpetuation of testimony.
60-227
60-227. Perpetuation of testimony.(a) Deposition before action. A person who desires to perpetuatehis or her own testimony or that of another person regarding any matter that maybe cognizable in any court of the state may file a verified petition to thedistrict court in the county of the residence of any expected adverseparty; but if the subject matter of the expected action or proceeding isthe validity of a will the petition shall be filed in the district court ofthe county in which the testator resides.
(1) Petition. The petition shall be entitled in the name of thepetitioner and shall show: (I) that the petitioner or the petitioner's personalrepresentatives, heirs, beneficiaries, successors or assigns may be partiesto an action or proceeding cognizable in a court but are presently unableto bring or defend it, (II) the subject matter of the expected action orproceeding and his or her interest therein and a copy of any written instrumentthe validity or construction of which may be called in question or which isconnected with the subject matter of the deposition, (III) the facts whichthe petitioner desires to establish by the proposed testimony and his or her reasons fordesiring to perpetuate it, (IV) the names or a description of the personsthe 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 substanceof the testimony which the petitioner expects to elicit from each, and shall ask for anorder authorizing the petitioner to take the depositions of the persons tobe examined named in the petition, for the purpose of perpetuating theirtestimony.
(2) Notice and service. The petitioner shall thereafter serve anotice upon each person named in the petition as an expected adverse party,together with a copy of the petition, stating that the petitioner willapply to the court, at a time and place named therein, for the orderdescribed in the petition. The notice shall be served either within orwithout the state within the time and in the manner for personal service ofsummons or by restricted mail, or by any other manner affording actualnotice as directed by order of the judge. The judge upon application andshowing of extraordinary circumstances may prescribe a hearing on shorternotice.
(3) Order and examination. If satisfied that the petition is notfor the purpose of discovery, and that its allowance may prevent futuredelay or failure of justice, and that the petitioner is unable to bring thecontemplated action or cause it to be brought, the court shall order thetestimony perpetuated, designating the deponents, the subject matter oftheir examination, when, where and before whom their deposition shall betaken, and whether orally or upon written interrogatories.
(4) Use of deposition. Subject to the same limitations andobjections as though the deponent were testifying at the trial in person, adeposition taken in accordance with this section may be used as evidence inany action subsequently brought in any court, where the deposition is thatof a party to the action, or where the issue is such that an interestedparty in the proceedings in which the deposition was taken had the rightand opportunity for cross-examination with an interest and motive similarto that which the adverse party has in the action in which the depositionis offered. But, except where the deposition is that of a party to theaction and is offered against the party, the deposition may not be used asevidence unless the deponent is unavailable as a witness at the trial.
(b) Pending appeal. If an appeal has been taken from a judgment orbefore the taking of an appeal if the time therefor has not expired, thecourt in which the judgment was rendered may allow the taking of thedepositions of witnesses to perpetuate their testimony for use in the eventof further proceedings in that court. In such case the party who desires toperpetuate the testimony may make a motion for leave to take thedepositions, upon the same notice and service thereof as if the action waspending in that court. The motion shall show (1) the names and addresses ofpersons to be examined and the substance of the testimony which he or she expectsto elicit from each; (2) the reasons for perpetuating their testimony. Ifthe court finds that the perpetuation of the testimony is proper to avoid afailure or delay of justice, it may make an order allowing the depositionsto 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 inthe same manner and under the same conditions as are prescribed in thissection for depositions taken in actions pending in the district court.
(c) Filing. Depositions taken under this section shall be filedwith the court in which the petition is filed or the motion is made.
(d) Perpetuation by action. This section does not limit the powerof a court to entertain an action to perpetuate testimony.
(e) Impeachment. No provision of this section is intended to limitthe use of any deposition for the purpose of impeachment of the deponentwhen he or she is a witness in any action.
(f) Reciprocity. A deposition taken under similar procedure ofanother jurisdiction is admissible in this state to the same extent as adeposition taken under this act.
History: L. 1963, ch. 303, 60-227; Jan. 1, 1964.