Rule 17.Parties Plaintiff and Defendant — Capacity

Rule 15-6-17 answers whose name belongs on a South Dakota lawsuit. Subdivision (a) requires every action to be prosecuted in the name of the real party in interest — the person who holds the claim — but it lists exceptions that let certain representatives sue in their own name without joining the person they represent: a personal representative, guardian, conservator, bailee, trustee of an express trust, someone who contracted in their own name for another’s benefit, or a party a statute authorizes to sue. If a case is filed in the wrong party’s name, it cannot be dismissed on that basis until the real party in interest has had a reasonable time, after objection, to ratify, join, or be substituted into the action, and once that happens the case is treated as though it had been filed correctly from the start.

Subdivision (b) covers business associates who transact under a common name without incorporating. They may sue or be sued using that common name, with the summons served on one or more of the associates, and any judgment binds the joint property of all associates as well as the individual property of whichever associates were served, as if each had been separately named and sued on the joint liability.

Subdivision (c) protects minors and incompetent persons. A guardian or conservator, where one exists, may sue or defend on that person’s behalf; if there is none, the minor or incompetent person may sue through a guardian ad litem, and the court must appoint one for anyone not otherwise represented, or make whatever other protective order it deems proper, even over an existing guardian or conservator’s appearance. A guardian ad litem generally cannot receive the ward’s money or property beyond allowed costs and expenses until posting security approved by the court, and may settle or compromise the case with the court’s approval.