“No abetment by parties death if right to sue
survive”
In a civil suit, any of the party to the suit dies
and if right to sue survive then the suit can be continued by the heirs or
legal representative of the deceased party. If in any case where right to sue
does not survive the suit will come to an end. The most essential element which
affects the abetment of a suit after the death of party is the survival of
right to sue; if that is there then the suit can be continued.
The general rule is that suits and actions must be prosecuted by and against
living parties. If a person against whom a personal action may be brought dies
before suit papers naming such person as defendant have been filed with the
court, then such suit papers may be amended to substitute the decedent’s
personal representative as party defendant.
Enactments setting up procedure for revival seeks to
prevent the arbitrary cessation of a proceeding where the cause of action
survives and provide for substitution of the personal representative or other
proper party and the continuation of the matter in that party’s name. Upon the
death of an indispensable party, the action abates until the deceased party’s
estate, or other appropriate legal representative, has been substituted.
A deceased person cannot be a party to a legal
proceeding and the effect of the death is to suspend the action as to the
decedent until his or her legal representative is substituted as a party. A
deceased person cannot be a party to legal proceedings.”While the death of a
party does not abate a pending action where the cause of action survives,
nevertheless the effect of the death is to suspend the action as to the
decedent until someone is substituted for the decedent as a party to the
proceedings. Until someone is properly substituted as a party after the action
is thus suspended, further proceedings in the case are void as to the
decedent.”
Abetment:
Considering
the matter of the abatement of an action by the death of a party, as well as
the survival and revival of the action, there is a clear difference between the
action and the cause of action; a cause of action may survive although a
particular action based on it is abated by the death of a party.
Abatement, in law, means discontinuation, cessation, destruction, or
elimination. The term is used in several different contexts.
Abatement of an action is the cessation of a particular judicial proceeding
because of some fact not affecting the merits of the controversy. The commonest
grounds for abatement are the pendency of another suit or the death of a party.
To abate a later suit, the pending suit must be in the same jurisdiction, with
the same parties and legal issues. At common law, death of a party abated an
action but did not necessarily extinguish the legal right on which it depended.
Other grounds for abatement of actions are defects of the parties (such as
misnomer or incapacity); lack of jurisdiction of the court; dissolution of a
corporation; premature commencement of an action; and transfer of a party's
interest in the lawsuit.
There are two types of parties involved in a lawsuit: plaintiffs and
defendants. The party who initiates a lawsuit is called the plaintiff. The
party against whom an action is brought is the defendant. The plaintiff claims
relief, usually monetary, or recovery against the defendant. Laws relating to
abatement vary from state to state.
The premature ending of a suit before final adjudication is called abatement of
an action. If reasons for abating a suit are not apparent on the pleading filed
by the plaintiff, the defendant can move to abate the case. However, if the
defendant fails to claim for abetment in his/her answer, the defence will be
waived. Court considers a plea for abatement of an action before proclaiming a
judgment as a judgment on the plea may affect the final decision in the case.
Right to sue:
A personal action dies with the person, is derivation and source of Latin maxim
Actio personalis moritur cum persona Right to sue, other than closely connected
with the individuality of the deceased, always survives to or against his legal
representatives.
There is a simple experiment to check as to when and how a right to sues
survives regardless of the death of a party. There are cases where the
plaintiffs mostly sue with regard to some claim which is associated with or
vests in their individuality. A suit for damages falls under that nature. If a
plaintiff dies during the pendency of suit for damages, the right to sue, which
can also be termed as a right to seek relief, would not survive but if he
succeeds in getting, a decree for damages and dies during the pendency of his
opponent’s appeal, the right would of course survive to his legal
representatives. In case of the survival of right to sue the suits do not abate
on death of a party but the impleadment or substitution of his legal heirs
becomes incumbent within the period of 90 days. This is so because the
surviving right has now become vested in the legal heirs. So long as a right is
referable to the individuality of a person, it does not survive at the death of
that person. The general rule is that all causes of action and all demands
whatsoever existing in favour of or against a person at the time of his death
survive to or against his legal representatives. This principle is found
enacted in the Succession Act as well, with the only exception that rights
intimately connected with the individuality of the deceased will not survive
based on the famous maxim actio personalis moritur cum personal–a personal right
of action dies with the person. A right to sue, other than intimately connected
with the individuality of the deceased, will always, survive to or against his
legal representatives.
No abatement by the death of parties:
1. Death of plaintiff:
Where the sole plaintiff dies, the suit will not abate, if the right to sue
survives. It can be continued by the heirs and the legal representatives of the
deceased plaintiff. If the right to sue does not survive, the suit will come to
an end.
Where one of several plaintiffs dies and the right to sue survives to the
surviving plaintiff or plaintiffs, the court will make an entry to that effect
and proceed with the suit by the surviving plaintiff or plaintiffs.
Where one of several plaintiff dies and right to sue does not survives to the
survive to the surviving plaintiff or plaintiffs or where the sole plaintiff
and the right to sue survives, the court on an application by the legal
representative of the deceased plaintiff will make him a party and proceed with
the suit.
Where no such application is made in the period of limitation (ninety days),
the suit shall abate so far as the deceased plaintiff is concerned. On an
application by the defendant, the court may award costs, which might have been
incurred by him in defending the suit from the estate f the deceased plaintiff.
Where the plaintiff dies after hearing and before pronouncement of judgement,
the suit shall not abate.
The same principal will apply in case of death of
the plaintiff after passing of preliminary decree and before final decree.
2.
Death of defendant:
Where the sole defendant dies, the suit shall not abate if the right to sue
survives. It can be continued against the heirs and legal representatives of
the deceased defendant.
Where one of several defendants dies and the right
to sue survives against the surviving defendant or defendants, or where the
sole surviving defendant dies and the right to sue survives, the court on an
application by the legal representative of the deceased defendant, will make
him a party and proceed with the suit.
Where no such application is made in the period of
limitation (ninety days), the suit shall abate as against the deceased defendant.
The court may, if it thinks fit, exempt the plaintiff
from substituting the legal representative of a non-contesting or pro forma
defendant and pronounce judgement notwithstanding the death of such defendant.
Where the plaintiff is ignorant of the death of the
defendant and the reason is unable to make the application for substitution of
the legal representative of the deceased defendant within the period of
limitation, and the suit stands abated, he may make an application for setting
aside such abetment within the period of limitation , stating that due to
ignorance of the death of the defendant he could not make application within
time. The court shall consider the application, having due regard to the fact
of such circumstances.
In Elliott v. Cline, 184 Ga. 393 (Ga.
1937)[15], the court observed that a cause of action for an injunction survives
the death of either party where it relates to property. Whereas, if the acts
are of a purely personal character, the right of action abates on the death of
the defendant. However, if a suit is for damages and injunction, then the right
to damages ex contractu will survive the death of the defendant.
Where the defendant dies after hearing and before pronouncement of judgement,
the suit shall not abate. The suit also does not abate on account of the death
of an unnecessary party.
Conclusion:-
Generally under the common law, a lawsuit was thought to automatically abate on
the death of a party. However, whether the cause of action abated depended on
whether or not the lawsuit was considered personal to the parties. For example,
contract and property cases were thought to involve issues separate from the
parties themselves and did not necessarily abate on the death of a party. On
the other hand, personal injury cases including injuries to the person as well
as cases of libel, slander, and malicious prosecution were considered personal
and did abate at death of the party.
Many states today have statutes that permit the revival of an action that was
pending when a party died. In the usual course, an executor or administrator is
substituted for the deceased party and the lawsuit continues. A lawsuit may not
be revived unless the underlying cause of action continues to have a legal
existence after the party’s death. Revival statutes vary from state to state, but
today most lawsuits do not abate due to the death of the party.
If two or more persons bring an action to the court and if one of them dies
while the action is pending, then the action will not abate if the cause of
action survives. The action will continue in the name of a surviving party, or
by the representatives of decedent.
After the death of a party, if the right sought to
be enforced survives only for or against the surviving plaintiffs or
defendants, the action will not abate but will continue for and against the
surviving parties. However, the death must be noted on the record.
In common law, if one of the defendants dies, it
will not abate an action against the other defendants entirely either in contract
or in tort actions.
If the rights of the deceased party, or his/her
successors remain in the cause of action, then the matter is either abated or
suspended until the action is properly revived and a successor named. A
judgment is not entered against the decedent’s successors in interest or
against his/her former rights until these steps are taken.
If one of the two co-parties is a necessary party,
and the judgment will not have any meaning without him/her as a party, then the
action abates entirely upon the co-party’s death and cannot be revived.
However, if a valid judgment can be given against the remaining defendants, the
death of a party for whom no substitution can be made abates the action only as
to the decedent, without possibility of reviver.
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