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South Carolina
JUDICIAL DEPARTMENT
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RULE 17

RULE 17
PARTIES PLAINTIFF AND DEFENDANT: CAPACITY

(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute so provides, an action for the use or benefit of another shall be brought in the name of the State. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after objection, for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Note:

This Rule 17(a) is current Federal Rule 17(a). The first sentence and the first clause of the second sentence are substantially the same as Code §§ 15-5-70 and 80. The Federal Rule adds to those who may sue in the name of others, "guardian" and "bailee." Those listed in the rule are considered illustrative and do not mean that others may not also fall into the category of those who can sue in the name of another. The last clause of the second sentence permits an action for the use or benefit of another to be brought in the name of the State. This is obviously needed but not provided for in §§ 15-5-70 and 80. The last sentence of the rule is intended to prevent forfeiture in those cases in which the determination of the proper party to sue is difficult or when there has been an honest mistake. This provision may change existing State law, because precedents hold that lack of the proper party is jurisdictional. Hodges v. Lake Summit Co., 155 S.C. 436, 152 S.E. 658 (1928); Wilson v. Gibbes Machine Co., 189 S.C. 426, 1 S.E.2d 490 (1938). Therefore, the filing of the suit might not bar the applicable statute of limitations, absent this provision.

(b) Capacity to Sue or Be Sued. The capacity of a party to sue or be sued shall be determined by the law of this State.

Note:

This Rule 17(b) is the first sentence of the Federal Rule and includes the conflicts law of the State. The remainder of Federal Rule 17(b) provides for problems peculiar to Federal courts and is deleted. The rule does not attempt to define the capacities of parties to sue or be sued, but refers to the law that defines these matters.

(c) Minor or Incompetent Persons. Whenever a minor or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the minor or incompetent person. If a minor or incompetent person does not have a duly appointed representative he may sue by his next friend or by guardian ad litem. The court shall appoint a guardian ad litem for a minor or incompetent person not otherwise represented in an action or shall make such order as it deems proper for the protection of the minor or incompetent person. A person imprisoned outside this State shall appear by guardian ad litem in an action by or against him; but if imprisoned in this State, and not a minor or incompetent, the court may, in its discretion appoint a guardian ad litem or order him to be brought personally to the trial to testify in accordance with Rule 43(a).

Note:

This rule retains the principal provisions of Code § 15-5-310. The last sentence, which does not appear in Federal Rule 17(c), retains the provisions in Code § 15-5-320 as to guardians ad litem for imprisoned persons. The Rule narrows existing practice by providing for a guardian ad litem only when the person is imprisoned outside the State. Thus in the most common civil cases involving prisoners, post-conviction relief proceedings, a guardian would not be required for an in-state prisoner who is normally represented by appointed or retained counsel; but the court has the discretion to appoint a guardian for an in-state prisoner.

(d) Guardians Ad Litem. Guardians ad litem appearing in the courts of this State, or before any agency, board or commission from which an appeal to the courts of this State shall lie, shall be qualified and appointed in accordance with the provisions of this rule.

Note:

This provision does not appear in the Federal Rule. It is a restatement of Code §§ 15-5-310 to 380. These provisions were added to Rule 17 as the Federal Rule refers to the State law on this subject.

(d)(1) Who May Appoint. Guardians ad litem may be appointed by the court in which the action is pending, the judge of probate, the clerk of court, or the master-in-equity of the county wherein the minor, or incompetent or imprisoned person resides, or in the county in which the action is pending or is to be filed.

Note:

This Rule 17(d)(1) is drawn principally from Code § 15-5-310 and Code § 15-5-360 dealing with the appointment of guardians for minors and incompetent persons.

Note to 1986 Amendment:

This amendment permits a guardian ad litem to be appointed before the action is filed.

(d)(2) Who May Be Appointed. The general guardian of a minor or incompetent person may be appointed guardian ad litem, if he has no interest adverse to that of the person whom he represents in the action. No other person may be appointed guardian ad litem of a minor or incompetent or imprisoned person unless he be fully competent to understand and protect the rights of the person whom he represents, has no interest adverse to that of the person whose interest he represents, is not connected or associated with the attorney or counsel of the adverse party, and is not the attorney for the adverse party. If the guardian ad litem is an attorney, it shall not be necessary that he be represented by an additional attorney; but the attorney of the adverse party shall not represent the guardian ad litem.

Note:

This Rule 17(d)(2) is drawn from Circuit Court Rule 6 with minor textual changes.

(d)(3) Minors. The guardian ad litem for a minor party shall be appointed upon the application of the minor, if he be of the age of 14 years or over; if under that age upon the application of his parent, general or testamentary guardian; or of a relative or friend. If application be made by a relative or friend, other than a parent, notice thereof must first be given to the minor's general or testamentary guardian, if he has one; if he has none, then to the person with whom such minor resides.

Note:

This Rule 17(d)(3) is drawn from Code § 15-5-330 with minor textual changes.

(d)(4) Imprisoned Persons. The guardian ad litem for an imprisoned person shall be appointed upon application of such person or of a relative or friend. If application be made by a relative or friend, notice thereof must first be given to such imprisoned person.

Note:

This Rule 17(d)(4) is drawn from Code § 15-5-370 with minor textual changes.

(d)(5) Incompetent Persons. The guardian ad litem for an incompetent person shall be appointed upon the application of his guardian or committee or of a relative or friend. If application be made by a relative or friend, notice thereof must be first given to the incompetent person's guardian if he has one; if he has none, then to the person with whom such incompetent person resides.

Note:

This Rule 17(d)(5) is drawn from Code § 15-5-360.

(d)(6) Failure to Apply. If no application for appointment of a guardian ad litem be made by or in behalf of a minor, imprisoned, or incompetent party within thirty (30) days after service of the summons upon such party, then the guardian ad litem may be appointed upon application of any other party to the action, after first giving notice of such application to the person or persons to whom notice of application must be given under subsections (3), (4), and (5) of this rule.

Note:

This Rule 17(d)(6) provides for the appointment of a guardian upon motion of any other party, if an application for the appointment has not been received within 30 days after the service of summons, and is similar language to Code §§ 15-5-340, 360 and 370. The provision incorporates the thirty day period for answering a complaint contained in Circuit Court Rule 102.

(d)(7) Out-of-State Party. When a minor, imprisoned or incompetent party resides out of the State or is absent therefrom, the court shall make such orders allowing additional time, or other orders as may be necessary to protect the interest of such parties.

Note:

This Rule 17(d)(7) is similar to Code § 15-5-350, and states the obvious proposition that the court has the authority to protect the interest of the individuals for whom guardians have not been appointed.

(e) Unknown Owners or Heirs as Parties. In all actions or proceedings to obtain title or possession, or to remove adverse claim of title, or to quiet title, or for partition, or for sale, or for foreclosure of any encumbrance, or enforcement of any trust, or specific performance of any contract, or for any other disposition of any property, real, personal, or mixed, situated within the State including choses in action either situated within or due or claimed to be due from persons, firms or corporations resident within the State, persons may be made parties defendant either on the filing of the complaint, counterclaim or cross-claim, as the case may be, or at any time thereafter by amendment thereof, by the name and description of unknown owners, or unknown heirs or unknown devisees of any deceased persons, or by any such designations.

Note:

This Rule 17(e) is added to supplement Rule 10(a) as to unknown parties, providing for the use of fictitious names similar to Code § 15-13-70. Actions against unknown parties are peculiar to State Court jurisdiction and this section is added to the Federal Rule to complete the procedure.

(f) Actions for Partition of Real Estate of Deceased Person. In an action for partition of real estate of a deceased person, the legal representative shall be a party to the action unless the estate of the deceased person has been closed and the legal representative discharged or it appears to the court that there are no debts chargeable against the estate of the deceased. In all actions for partition all tenants in common shall be parties, but if the consent of anyone who should be joined cannot be obtained, he may be made a defendant.

Note:

This Rule 17(f) does not appear in the Federal Rules. It is drawn from the first paragraph of present Circuit Court Rule 54. The intent of the provision is to insure that the debtors of the estate may reach the proceeds from the partition of the real estate which technically becomes the property of the heirs or beneficiaries upon the death of the deceased. Requiring the legal representative to be joined in all cases, except discharge or where there are no debts, serves this purpose. This Rule is not jurisdictional and partition will occur even if the legal representatives are not named or none has been appointed. See Smith v. Hawkins, 254 S.C. 423, 175 S.E.2d 824 (1970). The provisions of the second paragraph of Circuit Court Rule 54 and all of Circuit Court Rule 55, as to actions for partition of separate tracts, are contained in Rule 53 of these Rules. See also Rule 71 of these Rules for procedure on foreclosure and partition actions.