§ 25-1405 — Death of party; cessation of powers of personal representative; right of action surviving to or against successor; revivor

Nebraska § 25-1405

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

Text

Where one of the parties to an action dies, or his powers as a personal representative cease, before the judgment, if the right of action survives in favor of or against his representatives or successor, the action may be revived, and proceed in their names.

Legislative History

Source: R.S.1867, Code § 458, p. 470; R.S.1913, § 8026; C.S.1922, § 8967; C.S.1929, § 20-1405; R.S.1943, § 25-1405. Annotations: Where there is no probate and no personal representative of the original plaintiff, the action may be revived in the names of the heirs-at-law of the original plaintiff. Spradlin v. Myers, 200 Neb. 559, 264 N.W.2d 658 (1978). Section is not applicable as to revivor sought by executor of widow's estate in claim for widow's allowance. In re Samson's Estate, 142 Neb. 556, 7 N.W.2d 60 (1942). Where party plaintiff dies before judgment, action can no longer proceed in his name but must be revived. Vogt v. Daily, 70 Neb. 812, 98 N.W. 31 (1904). Action to recover support for child born out of wedlock may be revived in name of county. Dodge County v. Kemnitz, 28 Neb. 224, 44 N.W. 184 (1889). Upon the cessation of a personal representative's powers as a result of his or her death, the personal injury action in which he or she is the plaintiff, while not abating but still surviving, becomes suspended or dormant until such time as it is revived or stricken from the docket in accordance with the procedure set forth by statute. Linch v. Northport Irr. Dist., 14 Neb. App. 842, 717 N.W.2d 522 (2006). Because inmate's cause of action against the State for allegedly violating his constitutional rights did not survive his death, it could not be revived. Fitzgerald v. Clarke, 9 Neb. App. 898, 621 N.W.2d 844 (2001).