Effective 28 Aug 1983

507.100. Substitution of parties upon death, mental incapacity or transfer of interest. — 1. (1) If a party dies and the claim is not thereby extinguished, the court shall on motion order substitution of the proper parties. The motion for substitution may be made by the successors or representatives of the deceased party or by any party and, together with the notice of the hearing, shall be served on the parties as provided in section 506.100, and upon persons not parties in the manner provided for the service of a summons.

(2) In the event of the death of one or more of the plaintiffs or of 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 action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

(3) If the death occurs prior to final judgment or after final judgment and before appeal and substitution or motion therefor is not made within nine months after the first published notice of letters testamentary or of administration, the action shall be dismissed as to the deceased party; if death occurs after appeal and before final determination thereof and substitution or motion therefor is not made in the appellate court where the appeal is pending within nine months after the first published notice of letters testamentary or of administration, the appeal shall be dismissed as to the deceased party.

2. If a party becomes mentally incapacitated, the court upon motion served as provided in subsection 1 may allow the action to be continued by or against his representative.

3. 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 1.

4. When a corporation has been sued and served with 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 last board of directors, in a representative capacity, although the members of the board were not joined in the action.

5. When any public officer is a party to an action and during its pendency dies, resigns, or otherwise ceases to hold office, the action may be continued and maintained by or against his successor upon motion made within one year. Before a substitution is made, the party or officer to be affected, unless expressly assenting thereto, shall be given reasonable notice of the application therefor and accorded an opportunity to object. If no successor is otherwise appointed or elected, the court in which the action is pending may appoint a successor for the prosecution or defense of the action.

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(L. 1943 p. 353 § 22, A.L. 1953 p. 313, A.L. 1957 p. 292, A.L. 1983 S.B. 44 & 45)