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60-225. Substitution of parties. (a) Death. (1) Substitution if the claim is not extinguished. If a party dies and the claim is not extinguished, the court must on motion order substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within a reasonable time after service of a statement noting the death, the action by or against the decedent must be dismissed.

(2) Continuation among the remaining parties. After a party's death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record.

(3) Service. A motion to substitute, together with a notice of hearing, must be served on the parties as provided in K.S.A. 60-205, and amendments thereto, and on nonparties in the manner provided for the service of a summons. A statement noting death must be served in the same manner.

(b) Incapacity. If a party becomes an incapacitated person, the court may, on motion permit the action to be continued by or against the party's representative as provided in subsection (c) of K.S.A. 60-217, and amendments thereto. The motion must be served as provided in subsection (a)(3).

(c) Transfer of interest. If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in subsection (a)(3).

(d) Public officers; death or separation from office. An action does not abate when a public officer who is a party in an official capacity dies, resigns or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. Later proceedings should be in the substituted party's name, but any misnomer not affecting the parties' substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution.

(e) Continued representation by attorney. If a party dies or becomes an incapacitated person, that party's attorney may continue the representation in the name of the original party until a substitution has been made.

History: L. 1963, ch. 303, 60-225; L. 1965, ch. 354, § 3; L. 2010, ch. 135, § 94; July 1.

Source or prior law:

(a). G.S. 1868, ch. 80, § 40; L. 1909, ch. 182, § 39; R.S. 1923, 60-415.

(b). G.S. 1868, ch. 80, § 40; L. 1909, ch. 182, § 39; R.S. 1923, 60-415.

(c). G.S. 1868, ch. 80, § 40; L. 1909, ch. 182, § 39; R.S. 1923, 60-415.

Cross References to Related Sections:

Wrongful death actions, see 60-1901 et seq.

Causes of action which survive, see 60-1801.

Actions not abating by death, see 60-1802.

Dormant judgment, revivor, see 60-2404.

Depositions, use after substitution, see 60-232.

Law Review and Bar Journal References:

"Survival of Actions and Wrongful Death," Lawrence E. Curfman, 12 K.L.R. 21 (1963).

"Recent Development in Kansas Civil Procedure," E. Elinor P. Schroeder, 32 K.L.R. 515, 533 (1984).

"ESI Comes to the K.S.A.: Kansas Adopts Federal Civil Procedure Rules on Electronic Discovery," J. Nick Badgerow, 77 J.K.B.A. No. 7, 30 (2008).

CASE ANNOTATIONS

Prior law cases, see G.S. 1949, 60-415.

1. Record owner of undivided interest in oil lease is real party in interest. Home-Stake Production Co. v. Tri-State Pipe Co., 197 K. 163, 170, 415 P.2d 377.

2. Cited in allowing action against initial holder of judgment where assignee not joined as party litigant. First Federal Savings & Loan Ass'n v. Moulds, 202 K. 557, 561, 451 P.2d 215.

3. Death pending action for specific performance did not terminate obligations under contract. Shepard v. Dick, 203 K. 164, 166, 167, 453 P.2d 134.

4. Conservator of defendant's estate substituted as appellant pursuant to subsection (b) after defendant adjudicated incompetent. Seal v. Seal, 212 K. 55, 56, 510 P.2d 167.

5. Applied; joint recreation commission dissolved; city substituted in litigation. Flanigan v. Leavenworth Recreation Commission, 219 K. 710, 714, 716, 718, 549 P.2d 1007.

6. Party attempting to revive action hereunder subject to provisions of nonclaim statute; substitution of parties upheld; action dismissed on other grounds. Gatewood v. Bosch, 2 K.A.2d 474, 475, 476, 480, 581 P.2d 1198.

7. Personal service of motion on special administrator constituted substantial compliance with requirements of statutes (Ch. 60, Art. 3). Gatewood v. Bosch, 2 K.A.2d 474, 475, 476, 477, 479, 480, 581 P.2d 1198.

8. Statute applies to cases on appeal; motion for substitution for deceased litigant must be made within reasonable time after death. Long v. Riggs, 5 K.A.2d 416, 417, 418, 617 P.2d 1270.

9. Action against deceased defendant properly dismissed; automobile insurance company not proper party for substitution. Livingston v. Bias, 7 K.A.2d 287, 288, 289, 640 P.2d 362 (1982).

10. No substitution for decedent, appeal dismissed, claim not extinguished. Buettner v. Unruh, 7 K.A.2d 359, 642 P.2d 124 (1982).

11. A nonstatutory action to establish paternity by an illegitimate child does not survive against putative father. Gross v. VanLerberg, 231 K. 401, 402, 646 P.2d 471 (1982).

12. Dismissal for failure to substitute parties within reasonable time after death operates as adjudication on merits unless otherwise specified. Livingston v. Estate of Bias, 9 K.A.2d 146, 147, 150, 673 P.2d 1197 (1984).

13. Cited; nonpublic-figure spouse of public official need not prove malice in defamation suit. Sellars v. Stauffer Communications, Inc., 9 K.A.2d 573, 575, 684 P.2d 450 (1984).

14. Cited; setoffs, conversion, tort of outrage, fraud and deceit, punitive damages examined. Moore v. State Bank of Burden, 240 K. 382, 384, 729 P.2d 1205 (1986).

15. Statutory service requirements examined where plaintiff's estate substituted as party in action and FDIC filed counterclaim against estate. Estate of Rains v. Federal Deposit Ins. Corp., 702 F.Supp. 1520, 1521, (D. Kan. 1988).

16. Statute does not authorize ex parte motions for substitutions. Army Nat'l Bank v. Equity Developers, Inc., 245 K. 3, 9, 10, 774 P.2d 919 (1989).

17. Where action duly revived, and judgment entered against estate, appellate decision, if any, is final judgment perfecting demand (59-2238). In re Estate of Rains, 249 K. 178, 185, 815 P.2d 61 (1991).

18. Where defendant is dead at commencement of action, trial court has no jurisdiction to proceed; appointment of special administrator under section is inapplicable. Moore v. Luther, 29 K.A.2d 1004, 35 P.3d 277 (2001).

19. 60-215 not 60-225 governs substitution of special administrator as party defendant if alleged tortfeasor dies before suit is filed. Back-Wenzel v. Williams, 32 K.A.2d 632, 87 P.3d 318 (2004).

20. Motion to substitute under section cannot be used to substitute for party who died before commencement of action. Back-Wenzal v. Williams, 279 K. 346, 109 P.3d 1194 (2005).

21. Substitution of party improper; original party never served. Le v. Joslin, 41 K.A.2d 280, 202 P.3d 677 (2009).

22. Consideration of death of a party relevant and material fact. McCabe v. Hoch, 42 K.A.2d 747, 216 P.3d 720 (2009).

23. Determination of "reasonable time" shall be made in consideration of all relevant circumstances including diligence of the party, possible prejudice by delay and merit of the case. Graham v. Herring, 44 K.A.2d 1131, 242 P.3d 253 (2010).

24. The death of a party in a civil action does not automatically terminate the district court's subject matter jurisdiction. Graham v. Herring, 297 K. 847, 305 P.3d 585 (2013).

25. Trial court abused its discretion when it applied the incorrect legal standard in calculating the relevant time period for determining reasonableness of a delay in substituting a party. Hollister v. Heathman, 51 K.A.2d 234, 241, 344 P.3d 390 (2015).


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