1862 Territory of Dakota Session Laws/Chapter 8/Title XIII
TITLE XIII.
REVIVOR.
Chapter I. Revivor of Actions.—II. Revivor and New Parties to Judgment.
CHAPTER I.—Revivor of Actions.
In case one of several plaintiffs or defendants dies.Sect. 412. Where there are several plaintiffs or defendants in an action, and one of them dies, or his powers as a personal representative cease, if the right of action survive to or against the remaining parties, the action may proceed; the death of the party, or the cessation of his powers, being stated on the record.
Same.Sect. 413. Where one of several plaintiffs or defendants dies, or his powers as a personal representative cease, if the cause of action do not admit of survivorship, and the court is of opinion, that the merits of the controversy can be properly determined, and the principles applicable to the case fully settled, it may proceed to try the same as between the remaining parties; but the judgment shall not prejudice any who were not parties at the time of the trial.
When one of the parties dies.Sect. 414. When one of the parties to an action dies, or his powers as a personal representative cease before the judgment, if the right of action survive in favor of, or against his representatives or successor, the action may be revived, and proceed in their names.
To be revived in names of representatives.Sect. 415. The revivor shall be, by a conditional order of the court, if made in term, or by a judge thereof, if made in vacation, that the action be revived in the names of the representatives, or successor of the party who died, or whose powers ceased, and proceed in favor of, or against them.
Order may be made, on whose motion.Sect. 416. The order may be made on motion of the adverse party, or of the representatives or successor of the party who died, or whose powers ceased, suggesting his death, or the cessation of his powers, which, with the names and capacities of his representatives or successor, shall be stated in the order.
If by consent. If not by consent.Sect. 417. If the order is made by consent of the parties, the action shall forthwith stand revived; and if not made by consent, the order shall be served in the same manner, and returned within the same time as a summons, upon the party adverse to the one making the notion, and if sufficient cause be not shown against the revivor, the action shall stand revived.
If representatives of defendant are non-residents or conceal themselves.Sect. 418. When the plaintiff shall make an affidavit, that the representatives of the defendant, or any of them in whose name the action may be ordered to be revived, are non-residents of the territory, or have left the same to avoid the service of the order, or so concealed themselves that the order cannot be served upon them, or that the names and residence of the heirs or devisees of the person against whom the action may be ordered to be revived, or some of them, are unknown to the affiant, a notice may be published for four consecutive weeks, as provided by section sixty-nine, notifying them to appear on a day therein named, not less than ten days after the publication is complete, and show cause why the action should not be revived against them; and if sufficient cause be not shown to the contrary, the action shall stand revived.
Upon death of plaintiff, how revived.Sect. 419. Upon the death of a 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.
Upon death of defendant, revivor against representative or heirs.Sect. 420. Upon the death of a defendant in an action, wherein the right, or any part thereof, survives against his personal representative, the revivor shall be against him; and it may also be against the heirs or devisees of the defendant, or both, when the right of action or any part thereof survives against them.
Same, in an action for recovery of real property.Sect. 421. Upon the death of a defendant in an action for the recovery of real property only, or which concerus only his rights or claims to such property, the action may be revived against his heirs or devisees, or both, and an order therefor may be forthwith made, in the manner directed in the preceding sections of this title.
Order within one year, if against representative of defendant.Sect. 422 An order to revive an action against the representatives or successor of a defendant, shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.
Order, when made in other cases.Sect. 423. An order to revive an action in the names of the representatives or successor of a plaintiff, may be made forthwith, but shall not be made without the consent of the defendant, after the expiration of one year from the time the order might have been first made; but where the defendant shall also have died, or his power have ceased in the mean time, the order of revivor on both sides may be made in the period limited in the last section.
When action may be stricken from docket.Sect. 424. When it appears to the court by affidavit, that either party to an action has been dead, or where a party sues, or is sued as a personal representative, that his powers have ceased for a period so long that the action cannot be received [revived] in the names of his representative or successor, without the consent of both parties, it shall order the action to be stricken from the docket.
Defendant may move an order to strike from the docket, when.Sect. 425. At any term of the court succeeding the death of the plaintiff, while the action remains on the docket, the defendant, having given to the plaintiff's proper representatives, in whose names the action might be revived, ten days' notice of the application therefor, may have an order to strike the action from the docket, and for costs against the estate of the plaintiff, unless the action is forthwith revived.
When an action stands revived, it shall proceed as if no cessation had occurred.Sect. 426. When, by the provisions of the preceding sections, an action stands revived, the trial thereof shall not be postponed by reason of the revivor, if the action would have stood for trial at the term the revivor is complete, had no death or cessation of powers taken place.
CHAPTER II.—Revivor and New Parties to Judgment.
When persons may be made parties to judgement.Sect. 427. When a judgment is recovered against one or more persons, jointly indebted upon contract, those who were not originally summoned may be made parties to the judgment by action.
If parties die after judgement.Sect. 428. If either or both the parties die after judgment, and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as prescribed for reviving actions before judgment; and such judgment may be rendered and execution awarded as might or ought to be given or awarded against the representatives, real or personal, or both, of such deceased party.
If judgement becomes dormant.Sect. 429. If a judgment becomes dormant, it may be revived in the same manner as prescribed for reviving actions before judgment.