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), 41(b); 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.



  Trespass quare clausum abates upon death of plaintiff.  6 H.
556, questioned 45 H. 373, 375, 369 P.2d 96.  Ejectment does not abate by death
of sole defendant between verdict and judgment.  10 H. 505.  Counsel for
deceased may appear as amicus curiae on motion made prior to death.  Id. 
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.  Survival of cause of action.  34 H. 667.



  Suit over title to land or over performance of decedent's
contract to convey land, heirs as parties.  See 43 H. 241; 44 H. 464, 474, 357
P.2d 110; 45 H. 1, 13, 361 P.2d 374; 49 H. 409, 410, 420 P.2d 93.



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



  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.



  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.



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