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 in Rule 4 for the service of a summons, and may be served in any judicial district. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.
(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.
(3) After a verdict is rendered or an order for judgment is made in any action, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action survives by law, and substitution of parties shall be allowed as in other cases.
(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 guardian or may appoint a guardian ad litem for that purpose.
(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 subdivision (a) of this rule.
(d) Substitution of Successor to Public Officer.
(1) If a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and 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 not affecting the substantial rights of the parties must be disregarded. An order of substitution may be entered at any time, but an omission to enter the order does not affect the substitution.
(2) [Pub. Note: There is no (2).]
EXPLANATORY NOTE
Rule 25 is identical to Rule 25, FRCivP, except for style changes; the addition to subdivision (a) of the third paragraph concerning a death after verdict or order for judgment; specification in subdivision (b) that the action may be continued by a guardian or guardian ad litem rather than a representative, as in the federal rule; substitution of a different title or heading for subdivision (d); and deletion of subdivision (d)(2) [effective July 1, 1981]. The deleted subdivision (d)(2) which provided that whenever a public officer sues or is sued has been deleted and is now a part of Rule 10(a).
Subdivision (d) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
SOURCES: Joint Procedure Committee Minutes of April 20, 1989, page 2; December 3, 1987, page 11; November 29-30, 1979, pages 4-5; September 20-21, 1979, pages 18-19; Rule 25, FRCivP.
STATUTES AFFECTED:
SUPERSEDED: Section 28-1212, 28-0213, 28-0414, 28-0215, 28-1216, 28-1217, 28-1218, NDRC 1943.
CROSS REFERENCE: Rules 4 (Persons Subject to Jurisdiction-Process-Service), 5 (Service and Filing of Pleadings and Other Papers), 10 (Form of Pleadings), 17 (Parties Plaintiff and Defendant-Capacity), and 22 (Interpleader), N.D.R.Civ.P.; Rule 43 (Substitution of Parties), N.D.R.App.P.