Abatement Due to Change or Transfer of Interest

In law, abatement means the interruption of a legal proceeding that prevents the plaintiff from going forward with the suit at that time or in that form.  Abatement generally occurs upon the pleading by a defendant of a matter.  Pleas in abatement raise such matters as objections to the place, mode, or time of the plaintiff’s claim.  The term abatement is also used in law to mean the removal or control of an annoyance.

At one time, abatement of proceedings in equity differed from abatement in law in that the former merely suspended the action, subject to revival when the defect was cured, whereas the latter terminated it, though the plaintiff could start the action anew.

In some jurisdictions, statutes and rules of practice have abrogated the common law rule that termination or transfer of the plaintiff’s interest in the subject matter of an action while it is pending abates the action.

The Federal Rules of Civil Procedure under 25(c) provides that in case of any transfer of interest, the action may be continued by or against the original party.  However, the court can in some cases upon motion direct the person to whom the interest is transferred to be substituted in the action or joined with the original party.
In most states too, enactments now provide that, where there is a transfer of interest pending suit, the action does not abate but may be continued in the name of the original party.

In Levine v. Gonzalez,[i]  the court observed that 1.260(c) of the Florida Rules of Civil Procedure addresses “any transfer of interest,” which necessarily includes the transfer of interest in a chose of action through a court-ordered auction.  Therefore, after the transfer, the action may be continued in the name of the plaintiff.  The court also observed that in such cases, though substitution is not necessary, the trial court may allow substitution upon motion by a party.

In cases where there is a transfer of interest pending suit, the action may also be continued for the benefit of the assignee or transferee, or the assignee may be substituted for the original party.[ii] At common law however, upon dissolution of a corporation, there is no one to serve, because, in law, a dissolved corporation is a dead person.  Therefore, as per common law in case of corporations, in the absence of statute and revival, even pending actions by or against it will abate.[iii]

In equity as well, the fact of the transfer of the plaintiff’s entire interest is no defense to the action.  In Huntington Mortgage Co. v. Shanker[iv], the court therefore observed that the assignment by a plaintiff of his interest in a controversy made during the pendency of a suit to recover is not a defense to the action, but the cause may proceed in the name of such plaintiff.

In most jurisdictions where the action abates on transfer of title, the cause of action may still be revived by the transferee.[v]

[i] 901 So. 2d 969 (Fla. Dist. Ct. App. 4th Dist. 2005)

[ii] Fed. R. Civ. P. 25(c)

[iii] Gilliam v. Hi Temp Prods., 260 Mich. App. 98 (Mich. Ct. App. 2003)

[iv] 92 Ohio App. 3d 144 (Ohio Ct. App., Cuyahoga County 1993)

[v] Odland v. Hamrick, 127 W. Va. 206 (W. Va. 1944)


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