Rule 17. Parties plaintiff and defendant; capacity. - North Carolina Statutes

Article4.

Parties.

Rule 17. Parties plaintiff anddefendant; capacity.

(a)        Real party ininterest. – Every claim shall be prosecuted in the name of the real party ininterest; but an executor, administrator, guardian, trustee of an expresstrust, a party with whom or in whose name a contract has been made for thebenefit of another, or a party authorized by statute may sue in his own namewithout joining with him the party for whose benefit the action is brought; andwhen a statute of the State so provides, an action for the use or benefit ofanother shall be brought in the name of the State of North Carolina. No actionshall be dismissed on the ground that it is not prosecuted in the name of thereal party in interest until a reasonable time has been allowed after objectionfor ratification of commencement of the action by, or joinder or substitutionof, the real party in interest; and such ratification, joinder, or substitutionshall have the same effect as if the action had been commenced in the name ofthe real party in interest.

(b)        Infants,incompetents, etc. –

(1)        Infants, etc., Sueby Guardian or Guardian Ad Litem. – In actions or special proceedings when anyof the parties plaintiff are infants or incompetent persons, whether residentsor nonresidents of this State, they must appear by general or testamentaryguardian, if they have any within the State or by guardian ad litem appointedas hereinafter provided; but if the action or proceeding is against suchguardian, or if there is no such known guardian, then such persons may appearby guardian ad litem.

(2)        Infants, etc.,Defend by Guardian Ad Litem. – In actions or  special proceedings when any ofthe defendants are infants or incompetent persons, whether residents ornonresidents of this State, they must defend by general or testamentaryguardian, if they have any within this State or by guardian ad litem appointedas hereinafter provided; and if they have  no known general or testamentaryguardian in the State, and any of them have been summoned, the court in whichsaid action or special proceeding is pending, upon motion of any of theparties, may appoint some discreet person to act as guardian ad litem, todefend in behalf of such infants, or incompetent persons, and fix and tax hisfee as part of the costs. The guardian so appointed shall, if the cause is acivil action, file his answer to the complaint within the time required forother defendants, unless the time is extended by the court; and if the cause isa special proceeding, a copy of the complaint, with the summons, must be servedon him. After 20 days' notice of the summons and complaint in the specialproceeding, and after answer filed as above prescribed in the civil action, thecourt may proceed to final judgment as effectually and in the same manner as ifthere had been personal service upon the said infant or incompetent persons ordefendants.

                  All orders orfinal judgments duly entered in any action or special proceeding prior to April8, 1974, when any of the defendants were infants or incompetent persons,whether residents or nonresidents of this State, and were defended therein by ageneral or testamentary guardian or guardian ad litem, and summons andcomplaint or petition in said action or special proceeding were duly served uponthe guardian or guardian ad litem and answer duly filed by said guardian orguardian ad litem, shall be good and valid notwithstanding that said order orfinal judgment was entered less than 20 days after notice of the summons andcomplaint served upon said guardian or guardian ad litem.

(3)        Appointment ofGuardian Ad Litem Notwithstanding the Existence of a General or TestamentaryGuardian. – Notwithstanding the provisions of subsections (b)(1) and (b)(2), aguardian ad litem for an infant or incompetent person may be appointedin any case when it is deemed by the court in which the action is pendingexpedient to have the infant, or insane or incompetent person so represented,notwithstanding such person may have a general or testamentary guardian.

(4)        Appointment ofGuardian Ad Litem for Unborn Persons. – In all actions in rem and quasiin rem and in all actions and special proceedings which involve theconstruction of wills,  trusts and contracts or any instrument in writing, orwhich involve the determination of the ownership of property or thedistribution of property, if there is a possibility that some person maythereafter be born who, if then living, would be a necessary or proper party tosuch action or special proceeding, the court in which said action or specialproceeding is pending, upon motion of any of the parties or upon its ownmotion, may appoint some discreet person guardian ad litem to defend on behalfof such unborn person. Service upon the guardian ad litem appointed forsuch unborn person shall have the same force and effect as service upon suchunborn person would have had if such person had been living. All proceedings byand against the said guardian ad litem after appointment shall begoverned by all provisions of the law applicable to guardians ad litem forliving persons.

(5)        Appointment ofGuardian Ad Litem for Corporations, Trusts, or Other Entities Not inExistence. – In all actions which involve the construction of wills, trusts,contracts or written instruments, or the determination of the ownership ofproperty or the disposition or distribution of property pursuant to theprovisions of a will, trust, contract or written instrument, if such will,trust, contract or written  instrument provides benefits for disposition or distribution of property to a corporation, a trust, or an entity thereafter to be formed forthe purpose of carrying into effect some provision of the said will, trust,contract or written instrument, the court in which said action or specialproceeding is pending, upon motion of any of the parties or upon its ownmotion, may appoint some discreet person guardian ad litem for suchcorporation, trust or other entity. Service upon the guardian ad litem appointedfor such corporation, trust or other entity shall have the same force andeffect as service upon such corporation, trust or entity would have had if suchcorporation, trust or other entity had been in existence. All proceedings byand against the said guardian ad litem after appointment shall begoverned by all provisions of the law applicable to guardians ad litem forliving persons.

(6)        Repealed by SessionLaws 1981, c. 599, s. 1.

(7)        MiscellaneousProvisions. – The provisions of this rule are  in addition to any otherremedies or procedures authorized or permitted by law, and it shall not beconstrued to repeal or to limit the doctrine of virtual representation or anyother law or rule of law by which unborn persons or nonexistent corporations,trusts or other entities may be represented in or bound by any judgment ororder entered in any action or special proceeding. This rule shall apply to allpending actions and special proceedings to which it may be constitutionallyapplicable. All judgments and orders heretofore entered in any action in whicha guardian or guardians ad litem have been appointed for any unbornperson or persons or any nonexistent corporations, trusts or other entities,are hereby validated as of the several dates of entry thereof in the samemanner and to the full extent that they would have been valid if this rule hadbeen in effect at the time of the appointment of such guardians ad litem;provided, however, that the provisions of this sentence shall be applicableonly in such cases and to the extent to which the application thereof shall notbe prevented by any constitutional limitation.

(c)        Guardian ad litemfor infants, insane or incompetent persons; appointment procedure. – When aguardian ad litem is appointed to represent an infant or insane orincompetent person, he must be appointed as follows:

(1)        When an infant orinsane or incompetent person is plaintiff, the appointment shall be made at anytime prior to or at the  time of the commencement of the action, upon thewritten application of any relative or friend of said infant or insane orincompetent person or by the court on its own motion.

(2)        When an infant isdefendant and service under Rule 4(j)(1)a is made upon him the appointment maybe made upon the written application of any relative or friend of said infant,or, if no such application is made within 10 days after service of summons,upon the written application of any other party to the action or, at any timeby the court on its own motion.

(3)        When an infant orinsane or incompetent person is defendant and service can be made upon him onlyby publication, the appointment may be made upon the written application of anyrelative or friend of said infant, or upon the written application of any otherparty to the action, or by the court on its own motion, before completion ofpublication, whereupon service of the summons with copy of the complaint shallbe made forthwith upon said guardian so appointed requiring him to make defenseat the same time that the defendant is required to make defense in the noticeof publication.

(4)        When an insane orincompetent person is defendant and service by publication is not required, theappointment may be made upon the written application of any relative or friendof said defendant, or upon the written application of any other party to theaction, or by the court on its own motion, prior to or at the time of thecommencement of the action, and service upon the insane or incompetentdefendant may thereupon be dispensed with by order of the court making suchappointment.

(d)        Guardian ad litemfor persons not ascertained or for persons, trusts or corporations not inbeing. – When under the terms of a written instrument, or for any other reason,a person or persons who are not in being, or any corporation, trust, or otherlegal entity which is not in being, may be or may become legally or equitablyinterested in any property, real or personal, the court in which an action orproceeding of any kind relative to or affecting such property is pending, may,upon the written application of any party to such action or proceeding or ofother person interested, appoint a guardian ad litem to represent such personor persons not ascertained or such persons, trusts or corporations not inbeing.

(e)        Duty of guardian adlitem; effect of judgment or decree where party represented by guardian adlitem. – Any guardian ad litem appointed for any party pursuant to any of theprovisions of this rule shall file and serve such pleadings as may be requiredwithin the times specified by these rules, unless extension of time isobtained.  After the appointment of a guardian ad litem under anyprovision of this rule and after the service and filing of such pleadings asmay be required by such guardian ad litem, the court may proceed to finaljudgment, order or decree against any party so represented as effectually andin the same manner as if said party had been under no  legal disability, hadbeen ascertained and in being, and had been present in court after legal noticein the action in which such final  judgment, order or decree is entered. (1967,c. 954, s. 1; 1969, c. 895, ss. 5, 6; 1971, c. 1156, ss. 3, 4; 1973, c. 1199;1981, c. 599, s. 1; 1987, c. 550, s. 13.)