Ariz. R. Civ. P. 25
State Bar Committee Note
1963 Amendment to Rule 25(a)
Present Rule 25(a)(1), together with present Rule, results in an inflexible requirement that an action be dismissed as to a deceased party if substitution is not carried out within a fixed period measured from the time of the death. The hardships and inequities of this unyielding requirement plainly appear from the cases.
The amended rule establishes a time limit for the motion to substitute based not upon the time of the death, but rather upon the time information of the death is provided by means of a suggestion of death upon the record, i.e. service of a statement of the fact of the death. Cf. Ill.Ann.Stat., c. 110, section(Smith-Hurd 1956). The motion may not be made later than 90 days after the service of the statement unless the period is extended pursuant to Rule , as amended.
A motion to substitute may be made by any party or by the representative of the deceased party without awaiting the suggestion of death. Indeed, the motion will usually be so made. If a party or the representative of the deceased party desires to limit the time within which another may make the motion, he may do so by suggesting the death upon the record.
A motion to substitute made within the prescribed time will ordinarily be granted, but under the permissive language of the first sentence of the amended rule ("the court may order") it may be denied by the court in the exercise of a sound discretion if made long after the death-as can occur if the suggestion of death is not made or is delayed-and circumstances have arisen rendering it unfair to allow substitution. Accordingly, a party interested in securing substitution under the amended rule should not assume that he can rest indefinitely awaiting the suggestion of death before he makes his motion to substitute.
Since the change eliminates the two-year provision and substitutes therefor the ninety-day period after the suggestion of death, it of course follows that the two-year cases are rendered obsolete. An example is Shire v. Superior Court, 63 Ariz. 420, 169 P.2d 909 (1945). The amendment will not affect such a case as Jasper v. Batt, 76 Ariz. 328, 264 P.2d 409 (1953), which requires substitution in tort cases, since this decision deals with the right of substitution and not with the timing or technique of it, and the latter matters are the only ones within the rule revision.