§ 25-1410 — Death of plaintiff; in whose name action revived

Nebraska § 25-1410

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

Text

Upon the death of the plaintiff in an action, it may be revived in the names of his representatives, to whom his right has passed. Where his right has passed to his personal representative, the revivor shall be in his name; where it has passed to his heirs or devisees, who could support the action if brought anew, the revivor may be in their names.

Legislative History

Source: R.S.1867, Code § 463, p. 470; R.S.1913, § 8031; C.S.1922, § 8972; C.S.1929, § 20-1410; R.S.1943, § 25-1410. 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). Action to quiet title to real estate cannot be revived in name of administrator. Egan v. Niemann, 154 Neb. 161, 47 N.W.2d 404 (1951). Where sole plaintiff in foreclosure proceedings died, leaving a will, revivor should be had in name of devisees. Vybiral v. Schildhauer, 144 Neb. 114, 12 N.W.2d 660 (1944). Action for personal injuries does not abate by death, and administrator may revive. Murray v. Omaha Transfer Co., 95 Neb. 175, 145 N.W. 360 (1914), on rehearing, 98 Neb. 482, 153 N.W. 488 (1915). Section is applicable to cases pending in Supreme Court. Sheibley v. Nelson, 83 Neb. 501, 119 N.W. 1124 (1909); Schmitt & Bros. Co. v. Mahoney, 60 Neb. 20, 82 N.W. 99 (1900). Judgment should not be revived in name of administrator where he has not succeeded to rights of deceased. Vogt v. Binder, 76 Neb. 361, 107 N.W. 383 (1906). Where sole plaintiff dies, proceedings are suspended until revived. Street v. Smith, 75 Neb. 434, 106 N.W. 472 (1906). Where rights pass to heirs, heirs become necessary parties. Urlau v. Ruhe, 63 Neb. 883, 89 N.W. 427 (1902).