§ RULE 17. PARTIES PLAINTIFF AND DEFENDANT: CAPACITY

Codes > South Carolina Rules of Civil Procedure > IV. Parties > 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.

(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.

(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).

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(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.