25-322. Substitution of parties; death; disability; transfer of interest.

An action does not abate by the death or other disability of a party, or by the transfer of any interest therein during its pendency, if the cause of action survives or continues. In the case of the death or other disability of a party, the court may allow the action to continue by or against his or her representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party or the court may allow the person to whom the transfer is made to be substituted in the action.

Source

Annotations

1. Survival of cause of action

2. Transfer of interest

3. Miscellaneous

1. Survival of cause of action

Divorce suit does not survive death of party before decree becomes final. Williams v. Williams, 146 Neb. 383, 19 N.W.2d 630 (1945).

Cause of action for widow's allowance does not survive; hence cannot be revived. In re Samson's Estate, 142 Neb. 556, 7 N.W.2d 60 (1942).

Foreclosure action brought by trustees did not abate on death of one trustee. Kennedy v. Potts, 128 Neb. 213, 258 N.W. 471 (1935).

When plaintiff dies from injuries for which he brought suit, administrator is entitled to recover for benefit of estate what plaintiff would have been entitled to if he had survived. Murray v. Omaha Transfer Co., 95 Neb. 175, 145 N.W. 360 (1914), on rehearing, 98 Neb. 482, 153 N.W. 488 (1915).

Where action proceeds to decree after death of plaintiff without substitution of personal representative, decree is not open to collateral attack. Wardrobe v. Leonard, 78 Neb. 531, 111 N.W. 134 (1907).

Where party becomes incapacitated after commencement of action, it is duty of court to protect his interests. Simmons v. Kelsey, 72 Neb. 534, 101 N.W. 1 (1904).

An action on a single contract debt, for which a man's heirs as such are not liable, cannot be continued against such heirs. Buck v. Hogeboom, 63 Neb. 672, 88 N.W. 857 (1902).

Substitution of heir at law for administrator is not equivalent to bringing new action, within meaning of statute of limitations. Tecumseh Nat. Bank v. McGee, 61 Neb. 709, 85 N.W. 949 (1901).

Pending action for personal injury does not abate by death of plaintiff. Webster v. City of Hastings, 59 Neb. 563, 81 N.W. 510 (1900).

Action does not abate by the removal or discharge of an administrator as plaintiff during its pendency. Edney v. Baum, 2 Neb. Unof. 173, 96 N.W. 167 (1901).

2. Transfer of interest

The transfer of interest after an action is commenced does not prevent the action from being continued to final termination in the name of the original plaintiff. Eli's, Inc. v. Lemen, 256 Neb. 515, 591 N.W.2d 543 (1999).

Where there was a transfer of interest, action could be continued in name of original party defendant. Anest v. Chester B. Brown Co., 169 Neb. 330, 99 N.W.2d 615 (1959).

Transfer of interest after action has been commenced does not prevent action from being continued to final termination in name of original party. Exchange Elevator Co. v. Marshall, 147 Neb. 48, 22 N.W.2d 403 (1946).

Transfer of interest pending appeal is not ground for dismissal of appeal. State ex rel. Sorensen v. Lincoln Hail Ins. Co., 133 Neb. 496, 276 N.W. 169 (1937).

One who purchases choses in action during the pendency of a suit thereon may carry on the suit in the name of the original plaintiff, and may maintain an action in the name of the original plaintiff and obligee in a redelivery bond given to secure the return of property attached in the suit. Commercial Nat. Bank of Kearney v. Faser, 99 Neb. 105, 155 N.W. 601 (1915).

Where suit was properly commenced by mortgagees, it was properly prosecuted to final decree in their names notwithstanding transfer of interest pending litigation. Burns v. Hockett, 91 Neb. 546, 136 N.W. 348 (1912).

Substitution of one party plaintiff for another in a pending action is a continuation of the original rather than the commencement of a new action. State Bank of Gothenburg v. Carroll, 81 Neb. 484, 116 N.W. 276 (1908).

Stay filed before transfer of interest may be availed of by transferee. Jenkins Land & Live Stock Co. v. Attwood, 80 Neb. 806, 115 N.W. 305 (1908).

Substitution of parties does not modify the issues, and evidence taken before such transfer should be considered in the same manner as if there had been no change in parties. Munger v. Yeiser, 80 Neb. 285, 114 N.W. 166 (1907).

Action commenced by receiver may be continued in his name notwithstanding sale of his interest. Schaberg v. McDonald, 60 Neb. 493, 83 N.W. 737 (1900).

Substitution of parties on transfer of interest does not release surety on appeal bond. Howell v. Alma Milling Co., 36 Neb. 80, 54 N.W. 126 (1893).

3. Miscellaneous

Although an attorney of a deceased client may have a duty to protect the client's interests by alerting a legal representative of his or her pending claim, absent a contractual agreement to the contrary, an attorney's representation of a client generally ends upon the death of that client. A deceased party's representative or successor in interest must either seek a conditional order of revival under Chapter 25, article 14, of the Nebraska Revised Statutes or seek a court's substitution order under this section before an action or proceeding can continue. In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).

An attorney's unauthorized actions on the part of a deceased client are a nullity. So, unless a deceased client's legal representative or the client's contractual agreement authorizes the attorney to take or continue an action for the client, an attorney cannot take any further valid action in the matter. In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).

In this section, the Legislature anticipated that a substitution of a legal representative or successor in interest is required when a party dies before the action can continue. This substitution is required because a deceased person cannot maintain a right of action against another or defend a legal interest in an action or proceeding. In re Conservatorship of Franke, 292 Neb. 912, 875 N.W.2d 408 (2016).

An order reviving an action, whether the order was entered in proceedings under this section or under sections 25-1403 to 25-1420, is not a final order from which an appeal may immediately be taken. The order may be reviewed after final judgment in the case. Platte Valley Nat. Bank v. Lasen, 273 Neb. 602, 732 N.W.2d 347 (2007).

When sole plaintiff in foreclosure proceedings dies, no further proceedings can be had until action is revived. Vybiral v. Schildhauer, 144 Neb. 114, 12 N.W.2d 660 (1944).

Permitting assignee to intervene and become, in fact, a party plaintiff was not prejudicial, in view of this section. Rea v. Pierson, 114 Neb. 173, 206 N.W. 760 (1925).

This section applies to the prosecution of a claim against an estate in probate proceedings. Harman v. Harman, 62 Neb. 452, 87 N.W. 177 (1901).

Right of revivor under this section rests in discretion of trial court and is governed by equitable principles. Hayden v. Huff, 62 Neb. 375, 87 N.W. 184 (1901).

This section is not applicable to plaintiff in an action of replevin. Flanders v. Lyon & Healy, 51 Neb. 102, 70 N.W. 524 (1897).

It is proper practice to revive an action to file supplemental pleadings and issue summons. Rakes v. Brown, 34 Neb. 304, 51 N.W. 848 (1892).