PART V.  ABATEMENT AND REVIVAL

     [§634-61]  Death or dissolution of plaintiff or defendant.  The death of a plaintiff or defendant or the dissolution of a corporate plaintiff or defendant shall not cause an action to abate, but it may be continued upon substitution of the proper parties as provided by the rules of court, or if the claim is one which survives to or against the surviving parties the action shall proceed in favor of or against the surviving parties as provided by the rules of court. [L 1876, c 34, §1; RL 1925, §2632; RL 1935, §4053; RL 1945, §10081; RL 1955, §230-55; am L 1967, c 82, §1; HRS §634-82; am L 1972, c 89, §2A(q); ren HRS §634-61]

Rules of Court

  See HRCP rules 15(d), 25(a), (c); DCRCP rules 15(d), 25.

Case Notes

  Defendant removed action to U.S. district court alleging complete diversity of citizenship based on plaintiff's notice of defendant doctor's death, and argued, inter alia, that under Hawaii law, a decedent is not a proper party to an action; because the time in which to substitute doctor's estate or representative had not yet passed, the action against doctor had not been dismissed; therefore, removal on that basis was premature.  61 F. Supp. 2d 1121 (1999).

  Trespass quare clausum abates upon death of plaintiff.  6 H. 556 (1885), questioned 45 H. 373, 375, 369 P.2d 96 (1961).

  Counsel for deceased may appear as amicus curiae on motion made prior to death.  10 H. 505 (1896).

  Ejectment does not abate by death of sole defendant between verdict and judgment.  10 H. 505 (1896).

  Plaintiff in ejectment having died after verdict and before defendant's bill of exceptions was allowed, plaintiff's heirs could not be substituted on motion in supreme court.  19 H. 385 (1909).

  Survival of cause of action.  34 H. 667 (1938).

  Suit over title to land or over performance of decedent's contract to convey land, heirs as parties.  See 43 H. 241 (1959); 44 H. 464, 474, 357 P.2d 100 (1960); 45 H. 1, 13, 361 P.2d 374 (1961); 49 H. 409, 410, 420 P.2d 93 (1966).

  Substitution of party must be made within reasonable time after death of party.  60 H. 125, 588 P.2d 416 (1978).

  Appellant's claim against corporations not abated by involuntary dissolutions, where before default judgment was entered, corporations were involuntarily dissolved.  77 H. 417, 886 P.2d 754 (1994).

  As a general rule, an heir of an undistributed estate, who has not been judicially appointed as the personal representative of a decedent's estate, is not a "proper party" for substitution pursuant to HRCP rule 25(a)(1).  89 H. 91, 969 P.2d 1209 (1998).

  Defamation action does not survive death of defendant.  1 H. App. 517, 620 P.2d 771 (1980).