K.S.A. 60-227.Perpetuation of testimony; petition; order
Last amended July 1, 2010 · Last verified July 28, 2026
In one sentenceK.S.A. 60-227 lets a person perpetuate testimony that might otherwise be lost, either through a verified petition filed before an expected action can be brought or through a motion in a court where judgment has already been rendered while an appeal is pending or possible.
(1)Petition. A person who wants to perpetuate testimony about any matter cognizable in a Kansas state court may file a verified petition in the district court in the county where any expected adverse party resides; but if the subject matter of the expected action or proceeding is the validity of a will, the petition must be filed in the district court in the county of the testator's residence. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:
(A)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 Kansas state court but cannot presently bring it or cause it to be brought;
(B)the subject matter of the expected action or proceeding and the petitioner's interest, and if the validity or construction of a document may be called in question or if the document is connected with the deposition's subject matter, a copy of the document must be attached to the petition;
(C)the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;
(D)the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and
(E)the name, address and expected substance of the testimony of each deponent.
(2)Notice and service. At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice must be served either inside or outside the state in the manner for personal service of summons, by restricted mail or by any other method the court orders that affords actual notice. Upon application and showing of extraordinary circumstances, the court may order a hearing on shorter notice.
(3)Order and examination. If satisfied that the petition is not for the purpose of discovery, that perpetuating the testimony may prevent a failure or delay of justice, and that the petitioner is unable to bring the contemplated action or cause it to be brought, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, states when, where and before whom the depositions will be taken, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under the rules of civil procedure, and the court may issue orders like those authorized by K.S.A. 60-234 and 60-235, and amendments thereto. A reference in these rules of civil procedure to the court where an action is pending means, for purposes of this section, the court where the petition for the deposition was filed.
(4)Using the deposition. Subject to the same limitations and objections as though the deponent were testifying at the trial in person, a deposition to perpetuate testimony may be used as evidence in any later-filed action when the deposition is that of a party to the action, or when 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. Except for the deposition of a party to the action that is offered against the party, the deposition may not be used as evidence unless the deponent is unavailable as a witness at the trial.
(1)In general. The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court.
(2)Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the district court. The motion must show:
(A)The name, address and expected substance of the testimony of each deponent; and
(B)the reasons for perpetuating the testimony.
(3)Court order. If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by K.S.A. 60-234 and 60-235, and amendments thereto. The depositions may be taken and used as any other deposition taken in a pending district court action.
(c)Filing. Depositions taken under this section must be filed with the court in which the petition is filed or the motion is made.
(d)Perpetuation by an action. This section does not limit a court's power to entertain an action to perpetuate testimony.
(e)Impeachment. This section does not limit the use of any deposition to impeach the deponent when the deponent is a witness in an action.
(f)Reciprocity. A deposition taken under similar procedure of another jurisdiction is admissible in an action in this state to the same extent as a deposition taken under this section.
Amendment History
L. 1963, ch. 303, 60-227; L. 2010, ch. 135, § 96; July 1.
Plain-English Summary
Sometimes a witness's testimony is at risk of disappearing before a lawsuit can even be filed. Subsection (a) lets a person who expects to be a party to a future Kansas case, but can't yet bring or cause it to be brought, file a verified petition asking to depose named persons to preserve their testimony. The petition has to identify the expected adverse parties and their addresses so far as known, describe the subject matter and the petitioner's interest (attaching any document whose validity or construction might be at issue), lay out the facts the petitioner wants to establish and why perpetuation matters, and name each deponent along with the expected substance of their testimony. Petitions concerning a will's validity go in the county of the testator's residence; other petitions go where an expected adverse party resides.
Notice has real teeth: the petitioner must serve each expected adverse party at least 21 days before the hearing, using the methods for personal service of summons, restricted mail, or another court-ordered method that ensures actual notice, though the court can shorten that window on a showing of extraordinary circumstances. Before authorizing the depositions, the court has to be satisfied on three points — that the petition isn't a backdoor discovery device, that perpetuating the testimony may prevent a failure or delay of justice, and that the petitioner can't yet bring the case. If satisfied, the court issues an order naming the deponents, describing the subject matter, and setting the time, place, and method of examination, and the depositions proceed under the general discovery rules.
A deposition taken this way can be used later as evidence, subject to the same limits and objections as if the deponent testified live at trial — but with a catch: unless it's the deposition of a party being offered against that party, it can't be used unless the deponent is unavailable at trial. Subsection (b) provides a parallel process for a party who wants to perpetuate testimony while a judgment is on appeal or appealable, through a motion instead of a petition, on the same notice and service requirements. The remaining subsections make clear this section doesn't limit a court's independent power to entertain an action to perpetuate testimony, doesn't restrict using a deposition to impeach the deponent, and that a deposition taken under a similar procedure in another jurisdiction is just as admissible in Kansas as one taken under this section.
Frequently Asked Questions
Can I depose a witness before I've even filed my lawsuit in Kansas?
Yes, if you expect to be a party to an action you can't yet bring. Subsection (a) lets you file a verified petition asking the court to authorize depositions to perpetuate testimony, provided the court finds the petition isn't a discovery device, that perpetuation may prevent a failure or delay of justice, and that you can't yet bring the action.
Where do I file a petition to perpetuate testimony about a will's validity?
In the district court of the county where the testator resided. Other petitions under this section go in the county where an expected adverse party resides.
How much notice do I have to give before the hearing on my petition?
At least 21 days, served on each expected adverse party in the manner used for personal service of summons, by restricted mail, or by another court-ordered method affording actual notice. The court can shorten that period on a showing of extraordinary circumstances.
Can I use a deposition taken under this section at the actual trial later?
Yes, subject to the same limitations and objections as if the deponent testified in person. But except for a party's deposition offered against that party, the deposition can't be used unless the deponent is unavailable as a witness at trial.
Does this section apply while my case is on appeal?
Subsection (b) lets the court where judgment was rendered permit a party to depose witnesses to perpetuate testimony for further proceedings in that court, whenever an appeal has been or may still be taken, on a motion following the same notice and service requirements as subsection (a).
Source & verification. Section text is reproduced verbatim from the
Kansas Statutes Annotated, enacted by the Kansas Legislature. Last verified July 28, 2026.
· Official source
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