A deposition before action and a deposition pending appeal are referred to as perpetuation of testimony (perpetuam rei memoriam) because their objective is to perpetuate the testimony of a witness for future use.
The depositions under Rule 24:
- Also taken conditionally, to be used at trial only in case deponent is not available
- Do prove the existence of any right and the testimony perpetuated is not in itself conclusive proof, either of the existence of any right or even of the facts to which they relate
It can be controverted during trial in the same manner as though no perpetuation of testimony was ever had
However, in the absence of any objection to its taking, and even if the deponent did not testify at the hearing, the perpetuated testimony constitutes prima facie proof of facts referred to in the deposition.
SECTION 1 - Depositions before action; petition.—A person who
desires to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Philippines, may file a verified petition in the court of the place of the residence of any expected adverse party. (1a, R134)
Breakdown of Provision
A. A person who desires to perpetuate his own testimony or that of another person
1. Regarding any matter that may be cognizable by any Philippine court
2. May file a verified petition
a. In the court of the place of the residence of any expected adverse party
A petition may be filed by any person:
1. Who wants to perpetuate his own testimony; or
2. Who wants to perpetuate the testimony of another person Note: this may be availed of only in civil cases, not criminal
E.g.: The petitioner has a cause of action which has not yet accrued. - In such a case, inasmuch as he cannot bring the action until
the cause of action accrues, he may perpetuate his testimony of that of another person
SECTION 2 - Contents of petition.—The petition shall be entitled
in the name of the petitioner and shall show: (a) that the petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; (b) the subject matter of the expected action and his interest therein; (c) the facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; (d) the names or a description of the persons he expects will be adverse parties and their addresses so far as known; and (e) the names and addresses of the persons to be examined and the substance of the testimony which he 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, R134)
Breakdown of Provision
A. The petition shall be entitled in the name of petitioner B. The petition shall show:
1. That petitioner expects to be a party to an action in a Philippine court but is presently unable to bring it or cause it to be brought
2. The subject matter of the expected action and his interest therein
3. The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it 4. The names of a description of the persons he expects
will be adverse parties and their addresses so far as known
5. The names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each
C. The petition 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
Note: The petition shall be: - Verified
- Filed in the place of residence of any expected adverse party
- And contains the matters set forth in Sec. 2
SECTION 3 - Notice and service.—The petitioner shall 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. At least twenty (20) days before the date of the hearing, the court shall cause notice thereof to be served on the parties and prospective deponents in the manner provided for service of summons. (3a, R134)
Breakdown of Provision
A. The petitioner shall serve a notice upon each person named in the petition as an expected adverse party
1. Together with a copy of the petition
2. Stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition
B. At least 20 days before the date of hearing
1. The court shall cause notice thereof to be served on the parties and prospective deponents in the manner provide for service of summons
SECTION 4 - Order and examination.—If the court is satisfied that
the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose deposition may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with Rule 23 before the hearing. (4a, R134)
Breakdown of Provision
A. If the court is satisfied that the preparation of the testimony may prevent a failure or delay of justice
1. It shall make an order designating or describing the persons whose depositions may be taken
2. Specifying:
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b. And whether the depositions shall be taken upon oral examination or written interrogatories B. The depositions may then be taken in accordance with Rule
23 before hearing
SECTION 5 - Reference to court.—For the purpose of applying
Rule 23 to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed. (5a, R134)
Breakdown of Provision
A. For purposes of applying Rule 23 to depositions for perpetuating testimony
1. Each reference therein to the court in which the action is pending
a. Shall refer to the court in which the petition for such deposition was filed
SECTION 6 - Use of deposition.—If a deposition to perpetuate
testimony is taken under this Rule, or if, although not so taken, it would be admissible in evidence, it may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of sections 4 and 5 of Rule 23. (6a, R134)
Breakdown of Provision A. If:
1. A deposition to perpetuate testimony is taken under this Rule; or
2. Although not so taken, it would be admissible in evidence
B. It may be used in any action involving the same subject matter subsequently brought in accordance with the provisions of Sec. 4 and 5 of Rule 23
Note: If deposition is taken under this Rule, it may be used in any action involving the same subject matter subsequently brought
SECTION 7 - Depositions pending appeal.—If an appeal has been
taken from a judgment of a court, including the Court of Appeals in proper cases, 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 depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall state (a) the names and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each; and (b) the reason 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 thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in these Rules for depositions taken in pending actions. (7a, R134)
Breakdown of Provision
A. If an appeal has been taken from a judgment of a court, including the CA in proper cases, or before the taking of an appeal if the time thereof has not expired
1. The court in which the judgment was rendered may allow the taking of depositions of witnesses
2. To perpetuate their testimony for use in the event of further proceedings in said court
B. In such case the party who desires to perpetuate their testimony may make a motion in the said court for leave to take depositions
1. Upon the same notice and service thereof as if the action was pending therein
2. The motion shall state:
a. Names and addresses of persons to be examined and the substance of the testimony which he expects to elicit from each and
b. The reason for perpetuating their testimony C. If the court finds that perpetuation of their testimony is
proper to avoid a failure or delay of justice
1. It may make an order allowing the depositions to be taken
2. And thereupon, depositions may be taken and used in the same manner and under the same conditions as prescribed in Sec. 23
Note: Depositions are taken pending appeal with the view of their being used in the event of further proceedings in the court of origin or appellate court
E.g.: A party may perpetuate the testimony of a witness which was objected by the adverse party and ruled out by the court
- If appellate court should reverse the decision or order of lower court, it could:
1. Admit the deposition as additional evidence or 2. Remand the case back to the lower court for such
admission in accordance with Sec. 4 and 5 of Rule 23 Note: Under Sec. 6, Rule 25, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal
- UNLESS thereafter allowed by court for good cause shown and to prevent a failure of justice
Sec. 1 is the procedure for perpetuating testimony of witnesses PRIOR to the filing of the case and in anticipation thereof
Sec. 7 is the procedure in perpetuating testimony after judgment in the RTC and before it has become executory or during the pendency of an appeal therefrom