Supreme Court Rules - Rule 52 - Rules of Civil Procedure - Rules Governing Civil Procedure in the Circuit Courts - Parties: Substitution of Parties

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Supreme Court Rules

		Section/Rule:	52.13
Subject:	Rule 52 - Rules of Civil Procedure - Rules Governing Civil Procedure in the Circuit Courts - Parties	Publication / Adopted Date:	April 21, 1972
Topic:	Substitution of Parties - Dismissal	Revised / Effective Date:	January 1, 1994

52.13. Substitution of Parties - Dismissal

(a) Upon Death.

(1) If a party dies and the claim is not thereby extinguished, the court may, upon motion, order substitution of the proper parties. Suggestion of death may be made by any party or person in interest by the service of a statement of the fact of the death as provided herein for the service of a motion. A motion for substitution may be made by any party or by the successor or representative of the deceased party. Such motion, together with notice of hearing shall be served upon the parties as provided in

Rule 43.01

, and upon persons not parties in the manner provided for the service of a summons. Unless a motion for substitution is served within 90 days after a suggestion of death is filed, the action shall be dismissed as to the deceased party without prejudice.

(2) In the event of the death of one or more of the plaintiffs or 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 death shall be suggested on the record and the action shall proceed in favor of or against the surviving parties.

(b) Incompetency. If a party becomes incompetent, upon motion for substitution served as provided in Rule 52.13(a), the court may allow the action to be continued by or against the party's representative.

(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 subsection (a) of this Rule.

(d) Public Officers - Death or Separation From Office. When 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 successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. When a public officer sues or is sued in an official capacity, the officer may be described as a party by official title rather than by name, but the court may require the name to be added.

(e) Dissolution of Corporation. When a corporation has been sued and served with a process or has appeared while in being, and is thereafter dissolved or its charter forfeited, the action shall not be affected thereby and any judgment obtained shall have the effect of a judgment against the directors and officers in office when any such dissolution or forfeiture occurs, in their representative capacity, although they were not joined in the action.

(f) Motion for Substitution - Notice. When service of motion for substitution and notice of hearing is required to be served in the manner for the service of summons, the hearing on said motion shall not be held prior to the time the person served would be required to appear if served with an original process.

(g) Substitution - Effect on Time for After-Judgment Motions. In all cases where the event which gives a right to substitute parties under this Rule occurs after judgment has been rendered in a trial court, the time for filing after-judgment motions, giving after-judgment notices and all other after-judgment proceedings shall not begin to run until an order of substitution is made in accordance with this Rule.

(Adopted April 21, 1972, eff. Dec. 1, 1972. Amended Sept. 28, 1993, eff. Jan. 1, 1994.)

Committee Note - 1974

Paragraph (a)(1) is derived from prior Rule 52.12(a) and [Federal] Rule (a)(1) but it has been substantially revised.

Paragraph (a)(2) is substantially the same as prior Rule 52.12(b).

Paragraph (b) is substantially the same as prior Rule 52.12(d).

Paragraph (c) is the same as prior Rule 52.12(e).

Paragraph (d) is the same as prior Rule 52.12(g).

Paragraph (e) is substantially the same as prior Rule 52.12(f).

Paragraphs (f) and (g) are substantially the same as prior Rule 52.12 (h) and (i).

Note limitations upon recovery against assets of administered decedents' estates in

and

Written notice of the motion for substitution must be filed in the probate court in which the estate is being administered within six months after the first published notice of letters. Personal representatives are directed to give notice of death to adverse parties in litigation in which they know deceased was a party.

Compare:

Rule 25 of the Federal Rules of Civil Procedure