(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.
Rule 17.Parties plaintiff and defendant: Capacity
Group IV: Parties · Not amended since adoption on record · Last verified July 13, 2026
In one sentenceRule 17 requires every action to be brought in the name of the real party in interest, sets who has capacity to sue or be sued, and lays out detailed procedures for representing minors, incompetent persons, imprisoned persons, unknown owners, and deceased persons' estates in partition actions.
Full Text of Rule 17
(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.
Notes
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.
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.
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.
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.
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.
Note: This Rule 17(d)(2) is drawn from Circuit Court Rule 6 with minor textual changes.
Note: This Rule 17(d)(3) is drawn from Code § 15-5-330 with minor textual changes.
Note: This Rule 17(d)(4) is drawn from Code § 15-5-370 with minor textual changes.
Note: This Rule 17(d)(5) is drawn from Code § 15-5-360.
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.
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.
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.
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. SeeSmith 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.
Plain-English Summary
Rule 17(a) requires a lawsuit to be prosecuted in the name of the person or entity that holds the right being asserted — the real party in interest. But the rule doesn't force every claim to be brought by the person who ultimately benefits from it: an executor, administrator, guardian, bailee, trustee, or someone who contracted on another's behalf can sue in their own name without joining the person they represent. If a case is filed in the wrong party's name, Rule 17(a) protects against outright dismissal — the court must give a reasonable time for the real party in interest to ratify, join, or substitute into the case, and once that happens, the case is treated as though it had been filed correctly from the start.
Rule 17(b) is brief but important: whether a person or entity has the legal capacity to sue or be sued is determined by South Carolina law, not by some separate federal standard. Rule 17(c) then turns to parties who can't represent themselves. A minor or incompetent person with an existing representative — a guardian, committee, or conservator — sues or defends through that representative. Without one, the rule allows suit through a next friend or a guardian ad litem, and directs the court to appoint a guardian ad litem for anyone in that position who isn't otherwise represented. Someone imprisoned outside South Carolina must appear through a guardian ad litem; for someone imprisoned within the state, appointing a guardian ad litem is left to the court's discretion.
Rule 17(d) supplies a full set of mechanics for guardians ad litem: who may appoint one (the court, a probate judge, a clerk of court, or a master-in-equity), who qualifies to serve (someone competent, without a conflicting interest, and not connected to the opposing party's counsel), and how minors, imprisoned persons, and incompetent persons each apply for appointment. If no application comes in within 30 days after the summons is served on the party needing representation, any other party in the case can apply for the appointment instead, after giving the required notice. The rule also lets the court extend deadlines or issue other protective orders when the person needing a guardian lives out of state.
The last two subsections handle specialized situations. Rule 17(e) allows suits against unknown owners or heirs — useful in actions to quiet title, partition property, or foreclose a lien — by naming them through description rather than by name. Rule 17(f) requires the legal representative of a deceased person's estate to be joined in a partition action involving that person's real estate, unless the estate has been closed and the representative discharged, or the court finds no debts remain chargeable against the estate; it also requires all tenants in common to be made parties.
Frequently Asked Questions
What does it mean to sue in the name of the 'real party in interest'?
It means the lawsuit is brought in the name of the person or entity that holds the right being enforced. Rule 17(a) requires this, though it lists several representatives — executors, administrators, guardians, bailees, and trustees among them — who may sue in their own name on another's behalf.
What happens if a lawsuit is filed in the wrong party's name?
Rule 17(a) bars dismissal on that ground until the court gives a reasonable time, after objection, for the real party in interest to ratify the filing or to join or substitute into the case. Once that happens, the case proceeds as if it had been filed correctly from the beginning.
What law decides whether someone has the capacity to sue or be sued in South Carolina?
Rule 17(b) provides that capacity to sue or be sued is determined under South Carolina law.
When does a minor or incompetent person need a guardian ad litem?
Rule 17(c) requires one when the minor or incompetent person doesn't already have a representative, such as a general guardian, committee, or conservator, and no next friend has stepped in. The court must appoint a guardian ad litem for anyone in that position who isn't otherwise represented.
Who can be appointed as a guardian ad litem?
Under Rule 17(d)(2), a general guardian may serve if they have no interest adverse to the person they represent. Anyone else appointed must be competent to protect that person's rights, have no adverse interest, and have no connection to the opposing party's attorney.
What happens if no one applies to be appointed guardian ad litem?
Rule 17(d)(6) allows any other party in the action to apply for the appointment if no application has been made within 30 days after the summons was served on the minor, imprisoned, or incompetent party, as long as the required notice is given first.
Can a lawsuit name unknown owners or heirs as defendants?
Yes. Rule 17(e) allows this in actions involving property, such as suits to quiet title, partition, or foreclose an encumbrance, by describing unknown owners, heirs, or devisees rather than naming them individually.
Does an estate's representative have to be part of a partition action?
Rule 17(f) generally requires the legal representative of a deceased person's estate to be joined in an action partitioning that person's real estate, unless the estate is closed and the representative discharged, or the court finds no debts remain against the estate.
Source & verification. Rule text, official Notes, and amendment
history are reproduced verbatim from the South Carolina Rules of Civil Procedure,
adopted by the Supreme Court of South Carolina. Last verified July 13, 2026. ·
Official source
Also known as: real party in interestcapacity to sueguardian ad litemnext friendsuing on behalf of a minorunknown heirs as parties