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 has been filed or while a proceeding is pending in the supreme court, the decedent's personal representative may be substituted as a party on motion filed with the supreme court clerk by the representative or by any party. A party's motion must be served upon the personal representative in accordance with Rule 25. If the deceased party has no personal representative, any party may seek appointment of a personal representative or move to substitute another appropriate party
any party may suggest the death on the record and the court may then direct appropriate proceedings. If no action is taken to substitute the decedent's personal representative or other appropriate party, the appeal must be dismissed unless otherwise ordered by the court.
(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 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 must be in accordance with 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 decedent's personal representative, or, if there is no personal representative, 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 must be in accordance with paragraph (a)(1).
(b) Substitution for a Reason Other Than Death. If a party needs to be substituted for any reason other than death, the procedure prescribed in paragraph (a)(1) applies.
(c) Public Officers; Substitution; Identification.
(1) Automatic Substitution of Officeholder. When a public officer who is a party to an appeal or other proceeding in the supreme court in an official capacity dies, resigns, or otherwise ceases to hold office, the action does not abate. 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 affect the substantial rights of the parties must be disregarded. An order of substitution may be entered at any time, but failure to enter an order does not affect the substitution.
(2) Identification of Party. A public officer who is a party to an appeal or other proceeding in the supreme court in an official capacity may be described as a party by the officer's official title rather than by name, but the court may require the officer's name to be added.
Rule 43 was amended, effective January 1, 1988; March 1, 2003; March 1, 2004.
This rule is 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. 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.
Subdivision (a) was amended, effective March 1, 2004, to provide a procedure for parties to use when a deceased party has no personal representative.
SOURCES: Joint Procedure Committee Minutes of April 24-25, 2003, pages 14-15; 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.