RULE 43. SUBSTITUTION OF PARTIES
Effective Date: 1/1/1988
Obsolete Date: 3/1/2003
(a) Death of a Party. If a party dies after a notice of appeal is filed or while a proceeding is otherwise pending in the supreme court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the supreme court. The motion of a party must be served upon the personal representative in accordance with the provisions of Rule 25. If the deceased party has no personal representative, any party may suggest the death on the record and proceedings must then be had as the supreme court may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the trial 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 be effected in the supreme court in accordance with this subdivision. 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 within the time prescribed by these rules. After the notice of appeal is filed substitution shall be effected in the supreme court in accordance with this subdivision.
(b) Substitution for Other Causes. If substitution of a party in the supreme court is necessary for any reason other than death, substitution shall be effected in accordance with the Procedure prescribed in subdivision (a).
(c) Public Officers; Death or Separation From Office. If a public officer 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 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 the omission to enter such an order does not affect the substitution. If a public officer is a party to an appeal or other proceeding 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.
[Amended effective January 1, 1988.]
Rule 43 was amended, effective January 1, 1988; March 1, 2003; March 1, 2004; October 1, 2014.
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.
Rule 43 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court."
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 (Filing and Service).