Rule 17.Plaintiff and defendant; capacity; public officers
Current through January 1, 2025 · Last verified July 8, 2026
In one sentenceRule 17 requires actions to be brought in the name of the real party in interest (with named exceptions like executors and trustees who can sue in their own name), sets the law governing a party's capacity to sue or be sued, and addresses representation of minors, incompetent persons, incarcerated persons, and public officers.
(1)Designation in general. An action shall be prosecuted in the name of the real party in interest. The following may sue in their own names without joining the person for whose benefit the action is brought:
(A)an executor;
(B)an administrator;
(C)a guardian;
(D)a bailee;
(E)a trustee of an express trust;
(F)a party with whom or in whose name a contract has been made for another’s benefit; and
(G)a party authorized by law.
(2)Action in the name of the State for another’s use or benefit.
When a law so provides, an action for another’s use or benefit shall be brought in the name of the state or any political subdivision thereof.
(3)Joinder of the real party in interest. The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest.
(b)Capacity to sue or be sued. Capacity to sue or be sued is determined as follows:
(1)for an individual who is not acting in a representative capacity, by the law of the individual’s domicile;
(2)for a corporation, by the law under which it was organized; and
(3)for all other parties, by the law of this state.
(1)With a representative. The following representatives may sue or defend on behalf of a minor, incarcerated person, or incompetent person:
(A)a general guardian;
(B)a committee;
(C)a conservator; or
(D)a like fiduciary.
(2)Without a representative. A minor or an incompetent person, or an incarcerated person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court may appoint a guardian ad litem—or issue another appropriate order—to protect a minor, incarcerated person, or incompetent person who is unrepresented in an action.
(d)Public officer’s title and name. A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer’s name be added.
Amendment History
The current West Virginia Rules of Civil Procedure took effect January 1, 2025, as part of a rewrite that modernized the rules’ numbering and structure. West Virginia does not publish a per-rule amendment history inside the compiled rules text reproduced here. The text above is verified current through the source’s own January 1, 2025 update; for the underlying adopting order and any later amendments, see the West Virginia Judiciary’s compiled rules page.
Plain-English Summary
A lawsuit has to be brought by the person who holds the right being enforced — the "real party in interest" — though Rule 17 carves out several roles that can sue in their own name without joining the person they represent: executors, administrators, guardians, bailees, trustees of an express trust, parties who contracted for someone else's benefit, and anyone else the law authorizes. When a statute calls for an action for another's benefit to be brought in the state's name, this rule accommodates that too. And if a case is filed in the wrong name, the court can't dismiss it outright — it has to give the real party in interest a reasonable chance to join, ratify, or be substituted into the case first.
Capacity to sue or be sued depends on who's involved: an individual's capacity follows the law of their domicile, a corporation's follows the law where it was organized, and everyone else follows West Virginia law.
Minors, incarcerated persons, and incompetent persons generally need a representative — a general guardian, committee, conservator, or similar fiduciary — to sue or defend on their behalf. If none exists, they can proceed through a next friend, or the court can appoint a guardian ad litem to protect their interests. Public officers sued or suing in their official capacity can be identified by their title instead of their name, though the court can require the name to be added.
Frequently Asked Questions
What does "real party in interest" mean?
The person who holds the substantive right being sued on. Rule 17(a) generally requires the action to be brought in that person's name, though it lists exceptions — like executors and trustees — who can sue in their own name.
What happens if a case is filed in the wrong party's name?
The court can't dismiss it right away. It has to allow a reasonable time for the real party in interest to ratify the action, join it, or be substituted in.
How does a minor or incapacitated person sue or defend in West Virginia?
Through a general guardian, committee, conservator, or similar fiduciary if one exists. If not, the person can proceed through a next friend, or the court can appoint a guardian ad litem.
What law determines whether a corporation has the capacity to sue?
The law of the state under which the corporation was organized.
Source & verification. The rule text is reproduced verbatim from the
official West Virginia Rules of Civil Procedure (W. Va. R. Civ. P. 17). Prescribed by the Supreme Court of Appeals of West Virginia (W. Va. Const. art. VIII, § 3). The plain-English summary is original and written by us. Last verified July 8, 2026. ·
Official source
Also known as:real party in interestcapacity to sueguardian ad litemnext friend