![]() 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. ![]() 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. The remainder of Federal Rule 17(b) provides for problems peculiar to Federal courts and is deleted. This Rule 17(b) is the first sentence of the Federal Rule and includes the conflicts law of the State. The capacity of a party to sue or be sued shall be determined by the law of this State. Therefore, the filing of the suit might not bar the applicable statute of limitations, absent this provision. This provision may change existing State law, because precedents hold that lack of the proper party is jurisdictional. 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 is obviously needed but not provided for in §§ 15-5-70 and 80. 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. 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 first sentence and the first clause of the second sentence are substantially the same as Code §§ 15-5-70 and 80. This Rule 17(a) is current Federal Rule 17(a). 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. 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. ![]() Every action shall be prosecuted in the name of the real party in interest. PARTIES PLAINTIFF AND DEFENDANT: CAPACITY
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