M E M O
TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 43, N.D.R.App.P., Substitution of Parties
Amendments to Rule 43 were approved last year as part of the Appellate Rules Package. In its present form (and its form prior to amendment) the rule indicated that the Supreme Court would "direct appropriate proceedings" in cases in which a party dies after notice of appeal is filed and no personal representative is appointed.
In the past few months, the Court has had to deal with two cases in which a party died after the notice of appeal was filed and no personal representative was appointed or other party substituted. Through its experience with these cases, the Court worked out what it believes to be "appropriate proceedings" for all cases in which this situation occurs.
A proposed amended version of Rule 43 is presented for the Committee's consideration. It contains the procedure the Court determined would be appropriate-- allowing parties to seek appointment of a personal representative or to substitute another appropriate party for the decedent. It also contains language requiring parties to act to substitute an appropriate party for the decedent or to face dismissal of the appeal.
The dismissal section contains language which gives the Court discretion to consider on a case-by-case basis whether dismissal is appropriate. The language would also allow the Court to consider whether to dismiss some but not all of the parties.