1997 Rules on Civil Procedure Rule 24 – Depositions Before

2001 Edition <draft copy. pls. check for errors> Action or Pending Appeal

Rule 24
DEPOSITIONS BEFORE ACTION
OR PENDING APPEAL

TWO TYPES OF DEPOSITION TAKING:

1.) Deposition Pending Action (Rule 23) and
2.) Deposition Before Action or Pending Appeal (Rule 24)

In Rule 23, you take a testimony or deposition of people in relation to a pending case. There is already a
pending case in court, so everything is based on a pending action.

The next rule (Rule 24) is deposition before a case is filed. That is why it is called Depositions Before Action.
Actually, the concept of depositions before action is not really new. This is also found in the Rules prior to 1997
but was found in another rule. It was called Perpetuation of Testimony (Rule 134 of the old Rules of Court).
What the new rules did was simply to transfer Rule 134 to Rule 24.

But how can I apply deposition taking, wala mang kaso? That is why it was known as Perpetuation of
Testimony under Rule 134.

EXAMPLE: Suppose there is a case which I would like to file against B. But for the moment I cannot file it
yet. I intend to file a case against him. So there is an expected case between us in the future only there are certain
things that I still have to do. But if I file a case against B, I have some witnesses who are all ready like A and C.
But the trouble is, I learned lately that A will die soon. He has cancer and C will have to leave for abroad, never
to come back. Definitely, if I will file the case, there are no more witnesses available.

Q: Is there a way of taking testimony or deposition in advance even before wala pang kaso?
A: YES, by applying Rule 24. I will file a petition before the court known as Petition to Perpetuate the
Testimony of A and C. Well, even if there is as yet no case, I will just file a petition under Rule 24. If I can prove
really that the testimony would be relevant or important the court will issue an order allowing me to take
deposition in advance.

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)

Q: Where will you file it?

A: In the court of the place of the residence of any expected adverse party because there is still no case. So
you have to file an independent petition under Rule 24

Sec. 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)

Sec. 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)

Lakas Atenista 18
Ateneo de Davao University College of Law
1997 Rules on Civil Procedure Rule 24 – Depositions Before
2001 Edition <draft copy. pls. check for errors> Action or Pending Appeal

Sec. 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)

If the petition is granted, the court will now allow the deposition of these people to be taken and they are
taken simply by following Rule 23.

Sec. 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)

Rule 23 says, “the court in which the action is pending.” But there is still no pending action here. So it
automatically refers to the court in which the petition for the perpetuation was filed.

Sec. 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)

Q: How do you use the perpetuation of testimony?

A: The same uses of an ordinary deposition – for impeachment, for any other purpose like the witness is
already dead – the same under Rule 23. So the rule under Rule 23 is also applicable to Rule 24.

Sec. 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)

Q: What is deposition PENDING APPEAL?

A: Obviously, there is a case already on appeal. So how do you apply Rule 24 under this kind of situation?

EXAMPLE: There is a case between K and B. K lost. After he received a copy of the decision, he discovered
a material witness whom he failed to present. So this is a newly discovered evidence (NDE). Had K known of his
existence, he would have won the case. So, K will file a motion for new trial based on NDE. If his motion is
granted, there will be new trial.

But, if his motion is denied, K will appeal. While waiting for the decision of the court, the witness tells him
that he will be leaving for Afghanistan and will come back no more. So, K will use Section 7. He will file a
motion asking to take the deposition of a witness pending appeal in the event that his motion for new trial is
granted, because the witness has to go and cannot wait for the new trial.

So in the event that if I win the appeal, the case will go back. I can present the testimony because by that time
he may already be dead. In effect, para na ring deposition before appeal. So it is also perpetuating the testimony
of a possible witness, in the event the appeal is decided in your favor. That’s why it is called deposition pending
appeal. [oo nga ano?]

Lakas Atenista 19
Ateneo de Davao University College of Law