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Death of Coparty

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[i].

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[ii].

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[iii].

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[iv].

If one of the two coparties 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 coparty’s death and cannot be revived[v].  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.

In Elliott v. Cline, 184 Ga. 393 (Ga. 1937), 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.

[i] Ferk v. County of Lake, 205 Cal. App. 3d 268 (Cal. App. 1st Dist. 1988)

[ii] USCS Fed Rules Civ Proc R 25(a) (2)

[iii] Harbin v. O’Rear, 219 Ala. 173 (Ala. 1929)

[iv] Wanamaker v. Springstead, 274 A.D. 1008 (N.Y. App. Div. 1948)

[v] Elliott v. Cline, 184 Ga. 393 (Ga. 1937)


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