§ 25-1402 — Actions which abate by death of defendant

Nebraska § 25-1402

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

No action pending in any court shall abate by the death of either or both the parties thereto, except an action for libel, slander, malicious prosecution, assault, or assault and battery, or for a nuisance, which shall abate by the death of the defendant.

Legislative History

Source: R.S.1867, Code § 455, p. 469; R.S.1913, § 8023; C.S.1922, § 8964; C.S.1929, § 20-1402; R.S.1943, § 25-1402; Laws 1972, LB 1032, § 130. Annotations: 1. Abatement 2. No abatement 3. Miscellaneous 1. Abatement On death of either party before decree of divorce becomes final, suit abates and is not subject to revivor. Williams v. Williams, 146 Neb. 383, 19 N.W.2d 630 (1945). Most liberal construction of this section could not prevent divorce action from abating where death occurs before decree becomes operative. Sovereign Camp, W. O. W. v. Billings, 107 Neb. 218, 185 N.W. 426 (1921). An inmate's cause of action against the State for alleged violation of his constitutional rights while in prison did not survive his death. Fitzgerald v. Clarke, 9 Neb. App. 898, 621 N.W.2d 844 (2001). 2. No abatement An action for an accounting is not one of those specifically excepted by the provisions of this section, and therefore such an action does not abate by reason of the death of one of the parties. Willis v. Rose, 223 Neb. 49, 388 N.W.2d 101 (1986). Cause of action to establish trust did not abate. Workman v. Workman, 167 Neb. 857, 95 N.W.2d 186 (1959). Right of action does not abate on wrongdoer's death before commencement of action. In re Grainger's Estate, 121 Neb. 338, 237 N.W. 153 (1931), 78 A.L.R. 597 (1931). Action for personal injuries wrongfully inflicted does not abate by death, but may be revived and continued by personal representative. Hindmarsh v. Sulpho Saline Bath Co., 108 Neb. 168, 187 N.W. 806 (1922). Action does not abate where cause of action is such as by nature can continue, though not specifically mentioned in preceding section among those which survive. Levine v. Muser, 107 Neb. 230, 185 N.W. 431 (1921). Action did not abate, but administrator may recover all damages deceased could have recovered, including loss of earning power. Murray v. Omaha Transfer Co., 98 Neb. 482, 153 N.W. 488 (1915), affirming 95 Neb. 175, 145 N.W. 360 (1914). A pending action for libel does not abate by death of the plaintiff. Sheibley v. Nelson, 83 Neb. 501, 119 N.W. 1124 (1909). Action for malicious conspiracy to injure trade does not abate. Cleland v. Anderson, 66 Neb. 252, 92 N.W. 306 (1902), rehearing denied 66 Neb. 273, 96 N.W. 212 (1903), affirmed on rehearing 66 Neb. 276, 98 N.W. 1075 (1902). Action for personal injuries was not abated by plaintiff's death. Webster v. City of Hastings, 59 Neb. 563, 81 N.W. 510 (1900). A claim for attorney's fees is saved by Nebraska's survival statute. Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981). 3. Miscellaneous The language of this section and section 25-1401 should not be read to suggest that all pending actions other than those specifically listed survive the death of a party; Nebraska case law has long limited the list of those actions that survive death to exclude those which involve purely personal rights. Muller v. Weeder, 313 Neb. 639, 986 N.W.2d 38 (2023). Despite the language of section 25-1401 and this section which suggests that all pending actions other than those specifically listed in the statutes survive the death of a party, Nebraska case law has limited the list of those actions which survive to exclude those which involve purely personal rights. Sherman v. Neth, 283 Neb. 895, 813 N.W.2d 501 (2012). Survivorship statutes merely preserve and continue the right of action which the decedent had prior to his death and do not create a new cause of action. Thus, where wrongful act results in instantaneous death, no cause of action in the deceased ever comes into being and none can survive. A cause of action which survives under this section may be joined with a wrongful death action; however, no recovery for loss of earnings may be had except those which may be recovered under the wrongful death action. Rhein v. Caterpillar Tractor Co., 210 Neb. 321, 314 N.W.2d 19 (1982). Section is not applicable as to widow's allowance. In re Samson's Estate, 142 Neb. 556, 7 N.W.2d 60 (1942).