§ 16-62-105 - Death or expiration of powers -- Revivor of action.
16-62-105. Death or expiration of powers -- Revivor of action.
(a) Where one (1) of the parties to an action dies, or his or her powers as a personal representative cease before the judgment, if the right of action survives in favor of or against his representative or successor, the action may be revived and proceed in their names.
(b) The revivor shall be by an order of the court 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.
(c) The order may be made on the motion of the adverse party, or of the representatives or successor of the party who died or whose powers ceased, suggesting his or her death or the cessation of his or her powers, which with the names and capacities of his representative or successor, shall be stated in the order.
(d) (1) If the order is made by the consent of the parties, the action shall forthwith stand revived.
(2) If not made by consent, the order shall be served in the same manner as a summons upon the party adverse to the one making the motion. At the first term commencing not less than ten (10) days after such service, the party on whom it is made may show cause against the revivor. If sufficient cause is not then shown, the cause shall stand revived.
(e) If ten (10) days' notice has been given to the representatives or successor of the party who died or whose powers ceased of the motion by the adverse party, where the motion is by such representatives or successor, and due return is made of the service of notice, the court may, if sufficient cause is not shown to the contrary, make an order reviving the action in the names of such parties, whereupon the action shall stand revived.
(f) (1) Where it appears to the court by the affidavit of the plaintiff that the representatives of the defendant, or any of them, in whose name the action is ordered to be revived, are nonresidents of this state, have left the state to avoid the service of the order, have been absent therefrom four (4) months, or so conceal themselves that the order cannot be served upon them or that the names of the heirs of the defendant against whom the action is ordered to be revived, or of some of them, are unknown to the affiant, an order may be made by the court warning the representatives or unknown heirs to appear on the first day of its next term and show cause why the action should not be revived against them.
(2) The parties so warned shall be deemed constructively served with a copy of the order of revivor ten (10) days before the term at which they are warned to appear; and, if sufficient cause is not shown to the contrary, the action shall, at that term, stand revived.