When it appears to the court by affidavit that either party to an action has been dead, or where a party sues or is sued as a personal representative, that his or her powers have ceased for a period so long that the action cannot be revived in the names of his or her representatives or successor, without the consent of both parties, it shall order the action to be stricken from the trial docket.

Source:R.S.1867, Code § 468, p. 471; R.S.1913, § 8036; C.S.1922, § 8977; C.S.1929, § 20-1415; R.S.1943, § 25-1415; Laws 2018, LB193, § 22.

Annotations

When no effort has been made to revive, and cause is stricken from docket, the action is terminated. Humfeldt v. Moles, 63 Neb. 448, 88 N.W. 655 (1902).

Striking cause from docket is a suspension but not a dismissal of action. Hayden v. Huff, 62 Neb. 375, 87 N.W. 184 (1901).

Where the record did not show that the plaintiff died more than 1 year prior to the trial court's order dismissing the cause for lack of prosecution, that order could not be construed as an order striking the action from the docket. Linch v. Northport Irr. Dist., 14 Neb. App. 842, 717 N.W.2d 522 (2006).

Where cause of action cannot be revived, it must be stricken from the docket. Fitzgerald v. Clarke, 9 Neb. App. 898, 621 N.W.2d 844 (2001).