K.s.a. 60-268 - Motion For Substitution Form (Page 3 of 3) in pdf

K.s.a. 60-268 - Motion For Substitution Form Page 3

Comment

Substitution of parties and revivor of actions are different names for the same thing. Livingston v. Bias, 7

Kan.App.2d 287, Syl. ¶ 1. 640 P.2d 362 (1982). Substitution of parties is purely statutory law and strict compliance must

be shown. Army Nat’l Bank v. Equity Developers, Inc., 245 Kan. 3, 774 P.2d 919 (1989). When named defendant died

during pendancy of action, and no motion for substitution of parties was made within a reasonable time after the death

was suggested on the record as required by K.S.A. 60-225(a)(1), the action was dismissed. Livingston at 289. A dismissal

pursuant to K.S.A. 60-225 (a)(1) operates as an adjudication on the merits unless the order otherwise specifies, and the

action cannot be refiled. Livingston v. Estate of Bias, 9 Kan.App.2d 146, 673 P.2d 1197 (1984).

Subsection (a) also applies to cases on appeal, and if a motion for substitution is not made to the appellate court

in a reasonable time after death is suggested on the record, the appeal will be dismissed. Long v. Riggs, 5 Kan.App.2d

416, 617 P.2d 1270 (1980). K.S.A. 60-225(a) does not apply where the party dies before the action is filed. If the named

defendant is dead at the time the case is filed, the trial court has no jurisdiction to proceed. Moore v. Luther, 29

Kan.App.2d 1004, 35 P.3d 277 (2001).

K.s.a. 60-268 - Motion For Substitution Form Page 3