Lummis v. Eighth Judicial District Court of the State of Nevada
Lummis v. Eighth Judicial District Court of the State of Nevada
Opinion of the Court
OPINION
By the Court,
In this original proceeding in prohibition, petitioners, William R. Lummis and the First National Bank of Nevada, seek to bar their substitution as party defendants for the deceased,
On April 5, 1975, Howard R. Hughes, Jr., died. At the time of his death, four different causes of action were pending involving either Hughes or his Nevada gaming enterprise, Summa Corporation. What has been called the “main case” dealt with Summa’s right to exercise an option to purchase the Silver Slipper in Las Vegas.
After Hughes died, the probate court appointed the petitioners as co-special administrators of the estate. The petitioners subsequently rejected the three “companion” creditor’s claims. Thereafter, the “companion” plaintiffs moved to substitute petitioners for Hughes as party defendants in their pending actions. Respondent court granted the motion, and complaints were served upon the petitioners. Petitioners now seek a writ of prohibition to quash service and bar substitution.
1. NRCP 25(a)(1) provides in pertinent part: “If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. ...” Petitioners construe the above language to require the deceased to be a “party” jurisdictionally before the court. In their view, since Howard Hughes was never served with process, the district court lacked in personam jurisdiction to make any substitution after his death. Such a restrictive interpretation of the identical federal rule has been previously rejected. See Ransom v. Brennan, 437 F.2d 513 (5th Cir. 1971), cert. denied 403 U.S. 904 (1971); Bertsch v. Canterbury, 18 F.R.D. 23 (S.D. Cal. 1955). “If an action was commenced by the filing of a complaint but a party named in the complaint dies,. . . before he is served with process, substitution is available, but, as in any instance of substitution, process must be served on the new party to acquire in personam jurisdiction.” Wright & Miller, Federal Practice and Procedure, Civil, § 1951 (1972); see also Vol. 3B, Moore’s Federal Practice,
25.05, (2nd ed. 1977).
We adopt the interpretation of the federal courts. In our view, NRCP 25(a)(1) is a necessary procedural device which prevents a party’s death from destroying an otherwise valid cause of action. Cf. Walker v. Burkham, 68 Nev. 250, 229 P.2d
2. The parties have conceded that the causes of action for ejectment (case no. A126151) and abuse of process (case no. A126150) were rendered moot by our holding in Summa Corp. v. Richardson, 93 Nev. 228, 564 P.2d 181 (1977). Of course, those complaints should be dismissed.
This court recently confirmed Summa’s option. See Summa Corp. v. Richardson, 93 Nev. 228, 564 P.2d 181 (1977).
Reference
- Full Case Name
- WILLIAM R. LUMMIS and FIRST NATIONAL BANK OF NEVADA, Co-Special Administrators of the ESTATE OF HOWARD R. HUGHES, Jr. v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK
- Cited By
- 3 cases
- Status
- Published