The trial court ultimately entered judgment without ruling on the personal representatives' motion for substitution pursuant to ORCP 34 and, in so doing, effectively denied that motion. That denial is appealable. We perceive no principled distinction between substitution and intervention in that regard. Petitioner counters that Libby and Nickerson are both materially distinguishable in that in each of those cases the dissolution judgment had been entered before the decedent spouse's death. Indeed, petitioner asserts, that fact, which is not present here, was an essential predicate of the holdings in those cases.
Petitioner is correct.
Nickerson and Libby differ materially from this case. In both of those cases, the fact that the spouse's death occurred after the trial court entered the judgment of dissolution was central to the court's analysis. For example, in Nickerson, the husband died during the pendency of the appeal, and the court concluded that, where the appeal pertained to the division of property, his estate could prosecute the appeal. So that the heirs have an interest in continuing the controversy, to determine whether they have been rightfully or wrongfully affected in their property rights. The appeal may be continued by the personal representative of the deceased party.