Revivor; procedure; service of order; order by consent.
If the order is made by consent of the parties, the action shall forthwith stand revived; and if not made by consent, the order shall be served in the same manner, and returned within the same time, as a summons, upon the party adverse to the one making the motion, and if sufficient cause be not shown against the revivor, the action shall stand revived.
Source:R.S.1867, Code § 461, p. 470; R.S.1913, § 8029; C.S.1922, § 8970; C.S.1929, § 20-1408; R.S.1943, § 25-1408.
An order reviving an action, whether the order was entered in proceedings under section 25-322 or under sections 25-1403 to 25-1420, is not a final order from which an appeal may immediately be taken. The order may be reviewed after final judgment in the case. Platte Valley Nat. Bank v. Lasen, 273 Neb. 602, 732 N.W.2d 347 (2007).
Where the defendant did not object to the conditional order of revivor and allowed it to become final, defendant's subsequent efforts to challenge the revivor action are of no avail. Spradlin v. Myers, 200 Neb. 559, 264 N.W.2d 658 (1978).
Motion for revivor fails when no conditional order is issued and served upon adverse party, and notice of pendency of motion is served only on attorneys. Keefe v. Grace, 142 Neb. 330, 6 N.W.2d 59 (1942).
Statutes regulating revival of actions are permissive, and do not operate to modify the appeal statute, once the latter has commenced to run, but must be subordinated thereto. Independent Lubricating Co. v. Good, 135 Neb. 171, 280 N.W. 460 (1938).
Service on attorney of record is insufficient; general appearance waives. Missouri P. Ry. Co. v. Fox, 56 Neb. 746, 77 N.W. 130 (1898).