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RULE 25

RULE 25
SUBSTITUTION OF PARTIES

(a) Death.

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided by Rule 4 for the service of summons. If substitution is not made within a reasonable time, the action may be dismissed as to the deceased party. Counsel of record for such deceased party shall give notice to all other parties of the death of such party as soon as practicable after obtaining such knowledge and of the name and address of the proper parties who should be substituted.

Note:

This Rule 25(a)(1) is substantially the same as Federal Rule 25(a). In the Federal Rule the motion for substitution is to be made within 90 days after notice of death is suggested upon the record. This Rule substitutes "a reasonable time" after such knowledge is obtained.

(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

Note:

This Rule 25(a)(2) is the same as the Federal Rule. It provides in specific language a procedure to avoid dismissing and restarting an action as to surviving parties.

(3) After a judgment has been rendered in any action for any wrong, such action shall not abate by the death of any party, but shall proceed thereafter in the same manner as in cases where the action survives by law.

Note:

This Rule 25(a)(3) is new but does not change State practice. It repeats substantially the language of the second paragraph of Code ยง 15-5-180.:

(b) Incompetency. If a party becomes incompetent, the court upon motion served as provided in subdivision (a) of this rule may allow the action to be continued by or against his representative.

(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in Rule 25(a)(1).

Note:

This is the language of current Federal Rules 25(b) and (c) but represents present State practice.

(d) Public Officers; Death or Separation From Office.

(1) When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(2) When a public officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name; but the court may require his name to be added.

Note:

This Rule 25(d) is the language of Federal Rule 25(d). It applies only when the officer is sued in his official capacity. In the event he is sued as an individual then the provisions of Rule 25(a) apply. Rule 25(d)(2) provides that the officer sued in his official capacity may be described as a party by his official title rather than by his personal name. If it is desirable to have the official's name the court has the power to add it.

(e) Substitution at Any Stage. Substitution of parties under the provision of this rule may be made by the trial court either before or after judgment, or pending appeal, by the appellate court.

Note:

This provision [Rule 25(e)] does not appear in the Federal Rules. It is added to preserve State practice.