Where one of the several plaintiffs or defendants dies, or his powers as a personal representative cease, if the cause of action does not admit of survivorship, and the court is of opinion that the merits of the controversy can be properly determined, and the principles applicable to the case fully settled, it may proceed to try the same as between the remaining parties; but the judgment shall not prejudice any who are not parties at the time of the trial.
§ 25-1404.Death of one of several parties; cessation of powers of personal representative; right of action not surviving to or against remaining parties; procedure.
Article 14: Revivor and Survival of Actions · Not amended since original codification · Last verified July 22, 2026
In one sentenceWhen one of several plaintiffs or defendants dies and the claim does not admit of survivorship among the rest, the court may still try the case between the remaining parties if it can properly settle the merits, but the judgment does not bind anyone who was not a party at trial.
Full Text of § 25-1404
Source
R.S.1867, Code § 457, p. 469; R.S.1913, § 8025; C.S.1922, § 8966; C.S.1929, § 20-1404; R.S.1943, § 25-1404.
Plain-English Summary
Section 25-1404 picks up where § 25-1403 leaves off. That section handles the easy case: a right of action that survives to or against the remaining parties lets the case proceed without much fuss. This section handles the harder case, where one of several plaintiffs or defendants has died or lost personal-representative status, and the cause of action does not admit of survivorship among those who remain.
Even then, the case is not necessarily lost. If the court believes it can properly determine the merits of the controversy and fully settle the legal principles at stake, it may proceed to try the case as between the remaining parties. That is a judgment call for the court, weighing whether a fair and complete resolution is possible without the departed party.
The tradeoff is that the resulting judgment carries a real limit. It does not prejudice anyone who was not a party to the case at the time of trial. In other words, the court can resolve the dispute between whoever is left, but that resolution cannot be used against, or bind, the interests of the person who dropped out or their successor, since that person had no chance to be heard.
Frequently Asked Questions
What happens if the cause of action does not survive to the remaining parties after one dies?
Section 25-1404 gives the court discretion to try the case anyway, as between the remaining parties, if it can properly determine the merits and fully settle the applicable legal principles.
Is the court required to proceed in that situation, or can it decide not to?
The statute frames it as a matter of the court’s opinion — it may proceed if it believes the merits can be properly determined, which suggests discretion rather than a mandatory path.
Does the resulting judgment bind the deceased party’s estate or successor?
No. The statute states the judgment shall not prejudice any party who was not a party at the time of the trial.
How is this different from § 25-1403?
Section 25-1403 applies when the right of action survives to or against the remaining parties, letting the case proceed with the death noted on the record. This section applies when the cause of action does not admit of survivorship among the remaining parties.
Does this section apply to both plaintiffs and defendants?
Yes. It covers the death of, or cessation of representative status for, one of several plaintiffs or one of several defendants.
If the court cannot properly settle the merits without the departed party, what happens?
The statute conditions the court’s authority to proceed on its view that it can properly determine the merits and settle the applicable principles; where it cannot, other provisions of this Article, including revivor under §§ 25-1405 through 25-1409, would govern how the case moves forward.
Source & verification. Section text and the amendment-history citation are
reproduced verbatim from the Nebraska Legislature, Revisor of Statutes, enacted by the
Nebraska Legislature. Last verified July 22, 2026. ·
Official source
Also known as: claim does not survive remaining partiescourt tries case without departed partyjudgment does not bind nonpartysection 25-1404 nebraskapartial survivorship among parties