19 Moore's Federal Practice § 202.13[1]; see also Central States, Southeast and Southwest Areas Pension Fund v. Express Freight Lines, Inc., 971 F.2d 5, 6 (7th Cir. 1992); Fehlhaber v. Fehlhaber, 664 F.2d 260, 262 (11th Cir. 1981). [¶ 31] On appeal, the personal representative contends the district court's orders granting substitution are appealable, relying on this Court's decision in Missouri Slope Livestock Auction, Inc. v. Wachter, 113 N.W.2d 222 (N.D. 1962). In Wachter, at 223-24, the district court granted a motion for substitution of a personal representative for a deceased party in a pending action, which had been opposed on grounds the cause of action did not survive.

Rule 25 is a procedural rule; it does not provide substantive rights. Missouri Slope Livestock Auction, Inc. v. Wachter , 113 N.W.2d 222, 224 (N.D. 1962) ; see alsoTriple Quest Inc. v. Cleveland Gear Co. , 2001 ND 101, ¶ 16 n.1, 627 N.W.2d 379 (" Rule 25 does not substantively determine what actions survive the transfer of an interest; rather, it provides substitution procedures for an action that does survive.") (quoting ELCA Enters., Inc. v. Sisco Equip. Rental & Sales, Inc. , 53 F.3d 186, 191 (8th Cir. 1995) ). When ruling on a motion for substitution upon a party's death, the district court must determine whether the case was extinguished by the death.

See Annot., 167 A.L.R. 261 (1947). An order reviving an action is immediately appealable in a few states other than Nebraska. See, National Council K. and L. of S. v. Weisler, 131 Minn. 365, 155 N.W. 396 (1915); Missouri Slope Livestock Auction, Inc. v. Wachter, 113 N.W.2d 222 (N.D. 1962); Voss v. Stoll, 141 Wis. 267, 124 N.W. 89 (1910). Other states hold that an order reviving an action is merely interlocutory and not appealable before a final disposition of the case upon a final judgment.

[¶ 8] Plain language of the statute requires the plaintiff to apply to the court in which the action or proceeding was pending against the decedent at the time of death for an order to substitute the personal representative, not to the probate court administering the estate. See generally Missouri Slope Livestock Auction, Inc. v. Wachter, 113 N.W.2d 222, 223 (N.D. 1962). Jorjann Carlson's motion for substitution, labeled a motion "to add the decedent's personal representative as a joined third party" in the California action, must be filed with the California court. Moreover, it is axiomatic that a North Dakota court lacks subject matter jurisdiction to grant or deny a motion to substitute a party in an action or proceeding in another state. See generally Smith v. Crumm, 778 So.2d 1088, 1089 (Fla.App. 2001); In re Estate of Einstoss, 26 N.Y.2d 181, 309 N.Y.S.2d 184, 257 N.E.2d 637, 642 (1970); 67A C.J.S. Parties § 76 (2002).