RULE 43. SUBSTITUTION OF PARTIES
(a) Death of a Party.
(1) After Notice of Appeal is Filed. If a party dies after a notice of appeal
is has been filed or while a proceeding is otherwise pending in the supreme court, the decedent's personal representative of the deceased party may be substituted as a party on motion filed with the supreme court clerk by the representative or by any party with the clerk of the supreme court. The A party's motion of a party must be served upon the personal representative in accordance with the provisions of Rule 25. If the decedent has no personal representative, any party may suggest the death on the record and proceedings must then be had as the supreme court may then direct appropriate proceedings.
(2) Before Notice of Appeal is Filed--Potential Appellee. If a party against whom an appeal may be taken dies after entry of a judgment or order in the
trial district court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the notice of appeal is filed, substitution shall must be effected in the supreme court in accordance with this subdivision paragraph (a)(1).
(3) Before Notice of Appeal is Filed--Potential Appellant. If a party entitled to appeal dies before filing a notice of appeal, the
notice of appeal may be filed by the decedent's personal representative, or, if there is no personal representative, by the decedent's attorney of record, may file a notice of appeal within the time prescribed by these rules. After the notice of appeal is filed, substitution shall must be effected in the supreme court in accordance with this subdivision paragraph (a)(1).
(b) Substitution for
Other Causes a Reason Other Than Death. If substitution of a party in the supreme court is necessary needs to be substituted for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a) paragraph (a)(1) applies.
(c) Public Officers;
Death or Separation From Office Substitution; Identification.
(1) Automatic Substitution of Officeholder.
If When a public officer who is a party to an appeal or other proceeding in the supreme court in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate. and the The officer's successor is automatically substituted as a party. Proceedings following the substitution must be in the name of the substituted party, but any misnomer that does not affecting affect the substantial rights of the parties must be disregarded. An order of substitution may be entered at any time, but the omission failure to enter such an order does not affect the substitution.
(2) Identification of Party.
If a A public officer who is a party to an appeal or other proceeding in the supreme court in an official capacity the officer may be described as a party by the officer's official title rather than by name ;, but the supreme court may require the officer's name to be added.
Rule 43 was amended, effective January 1, 1988; March 1, 2003.
This rule is
taken, without substantial change, derived from Fed.R.App.P. 43. Subdivisions (a) and (c) were amended, effective January 1, 1988, to track the 1986 amendments to the Federal Rule federal rule. The amendments are technical in nature with no substantive changes.
Rule 43 was amended, effective March 1, 2003, to track the December 1, 1998 amendments to the federal rule. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of April 25-26, 2002, page 26; February 19-20, 1987, pages 8-9; September 18-19, 1986, pages 21-23. Fed.R.App.P. 43.
CROSS REFERENCE: N.D.R.App.P. 25.