Rule 25. Substitution of parties upon death, incompetency or transfer of interest; abatement. - North Carolina Statutes

Rule 25. Substitution ofparties upon death, incompetency or transfer of interest; abatement.

(a)        Death. – No actionabates by reason of the death of a  party if the cause of action survives. Insuch case, the court, on motion at any time within the time specified for thepresentation of claims in G.S. 28A‑19‑3, may order the substitutionof said party's personal representative or collector and allow the action to becontinued by or against the substituted party.

(b)        Insanity orincompetency. – No action abates by reason of the incompetency or insanity of aparty. If such incompetency or insanity is adjudicated, the court, on motion atany time within one year after such adjudication, or afterwards on asupplemental complaint, may order that said party be represented by his generalguardian or trustee or a guardian ad litem, and, allow the action to becontinued. If there is no adjudication, any party may suggest such incompetencyor insanity to the court and it shall enter such order in respect thereto as justicemay require.

(c)        Abatement orderedunless action continued. – At any time after the death, insanity orincompetency of a party, the court in which an action is pending, upon noticeto such person as it directs and upon motion of any party aggrieved, may orderthat the action be abated, unless it is continued by the proper parties, withina time to be fixed by the court, not less than six nor more than 12 months fromthe granting of the order.

(d)        Transfer ofinterest. – In case of any transfer of interest other than by death, the actionshall be continued in the name of the  original party; but, upon motion of anyparty, the court may allow the person to whom the transfer is made to be joinedwith the original party.

(e)        Death of receiverof corporation. – No action against a receiver of a corporation abates byreason of his death, but, upon suggestion of the facts on the record, itcontinues against his successor or against the corporation in case a newreceiver is not appointed and such successor or the corporation isautomatically substituted as a party.

(f)         Public officers;death or separation from office. –

(1)        When a publicofficer is a party to an action in his official capacity and during itspendency dies, resigns or otherwise ceases to hold office, the action does notabate and his successor is automatically substituted as a party. Proceedingsfollowing the substitution shall be in the name of the substituted party, butany misnomer not affecting substantial rights of the parties shall be disregarded.An order of substitution may be entered at any time, but the omission to entersuch an order shall not affect the substitution.

(2)        When a publicofficer sues or is sued in his official capacity, he may be described as aparty by his official title rather than by name; but the court may require hisname to be added.

(g)        No abatement afterverdict. – After a verdict is rendered in any action, the action does not abateby reason of the death of a party, whether or not the cause of action uponwhich it is based is a type which survives. (1967, c. 954, s. 1; 1977, c.446, s. 3.)