Rule 17 PARTIES PLAINTIFF AND DEFENDANT; CAPACITY.

• Jurisdiction: Colorado

Rule 17. Parties Plaintiff and Defendant; Capacity.

(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest; but an executor, administrator, guardian, conservator, 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 people of the state of Colorado.

(b) Capacity to Sue or Be Sued. A partnership or other unincorporated association may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right. A father and mother or the sole surviving parent may maintain an action for the injury or death of a child; where both maintain the action, each shall have an equal interest in the judgment; where one has deserted or refuses to sue, the other may maintain the action. A guardian may maintain an action for the injury or death of his ward.

(c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, or such representative fails to act, he may sue by his next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person, provided, that in an action in rem it shall not be necessary to appoint a guardian ad litem for any unknown person who might be an infant or incompetent person.

Source: (b) amended and effective January 12, 2017.

Cross references: For competence of persons eighteen years of age or older to sue and be sued, see § 13-22-101(1)(c), C.R.S.; for rights of married women, see part 2 of article 2 of title 14, C.R.S.; for service of process on minors, see C.R.C.P. 4(e)(2); for guardians of minors and guardians of incapacitated persons, see parts 2 and 3 of article 14 of title 15, C.R.S.

ANNOTATION

I. General Consideration.

II. Real Party in Interest.

A. In General.
B. Who is Real Party in Interest.
C. Action by Executor or Trustee or in Contract.

III. Capacity to Sue or Be Sued.

A. In General.
B. Married Women.
C. Partnerships or Unincorporated Associations.
D. Injury or Death of Child.

IV. Infants or Incompetent Persons.

A. In General.
B. Sue or Defend.
C. Appointment of Guardian.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Damages Recoverable for Injuries to A Spouse in Colorado", see 28 Dicta 291 (1951). For article, "Pleadings, Rules 7 to 25", see 28 Dicta 368 (1951). For article, "Parties: Rules 17-25", see 23 Rocky Mt. L. Rev. 552 (1951). For article, "One Year Review of Civil Procedure and Appeals", see 40 Den. L. Ctr. J. 66 (1963).

This rule is procedural, providing how a legally constituted entity may bring its action. Hidden Lake Dev. Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973).

II. REAL PARTY IN INTEREST.

A. In General.

Annotator's note. Since section (a) of this rule is similar to §§3 and 5 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing those sections have been included in the annotations to this rule.

This rule is identical to F.R.C.P. 17(a). Hoeppner Constr. Co. v. United States, 287 F.2d 108 (10th Cir. 1960).

This rule provides that every action shall be prosecuted in the name of the real party in interest. Nat'l Advertising Co. v. Sayers, 144 Colo. 356, 356 P.2d 483 (1960); Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 484 P.2d 1211 (1971).

The function of the real-party-in-interest rule is to ensure a proper res judicata effect by protecting the defendant against a subsequent suit by the person who is actually entitled to recover. Ajay Sports, Inc. v. Casazza, 1 P.3d 267 (Colo. App. 2000).

Standing is a jurisdictional prerequisite that requires a named plaintiff to bring suit only to protect a cognizable interest, and a plaintiff has standing if he or she has an injury in fact and that injury is to a legally protected interest. Durdin v. Cheyenne Mountain Bank, 98 P.3d 899 (Colo. App. 2004).

Argument may be waived, as where defendant asserts it in the answer but omits it from a pretrial motion to dismiss for failure to state a claim on which relief may be granted. Ajay Sports, Inc. v. Casazza, 1 P.3d 267 (Colo. App. 2000).

Constitutional questions may only be raised by a party whose interests are in fact affected by a challenged legislative act. Garcia v. City of Pueblo, 176 Colo. 96, 489 P.2d 200 (1971).

Where a decision of a court as to validity of the ordinance cannot result in further proceedings against a petitioner, he has no standing to prosecute appellate proceedings beyond the court where his acquittal occurred. Garcia v. City of Pueblo, 176 Colo. 96, 489 P.2d 200 (1971).

Substitution of real party in interest not filing of new cause. The substitution of an insurer for an insured, as party plaintiff, does not constitute the filing of a new cause of action, and the substituted party benefits from the filing date of the original complaint and is not barred by the statute of limitations if the original complaint was timely filed. Travelers Ins. Co. v. Gasper, 630 P.2d 97 (Colo. App. 1981).

People of state should not be named as party when individual is party in interest. People ex rel. Garrison v. Lamm, 622 P.2d 87 (Colo. App. 1980).

The "real parties in interest" must follow the proceedings throughout, and, if not satisfied, must present the judgment of which complaint is made for review. Gates v. Hepp, 95 Colo. 285, 35 P.2d 857 (1934).

Assignee of original real party in interest must prove its status as an assignee. Alpine Assocs., Inc. v. KP & R, Inc., 802 P.2d 1119 (Colo. App. 1990).

Applied in Williams v. Genesee Dev. Co. No. 2, 759 P.2d 823 (Colo. App. 1988).

B. Who Is Real Party in Interest.

Effect of this rule is to put end to action of ejectment. The fiction by which "John Doe" and "Richard Roe" were made to represent the plaintiff and defendant, respectively, in an action of ejectment of common law permitted any number of actions of this character to be maintained between the same parties in interest after verdict and judgment. The litigation terminated only when the unsuccessful party tired of his futile efforts, or when a court of equity, after repeated trials at law resulting in like verdicts and judgments, enjoined the unsuccessful party from harrassing, by future actions in ejectment, him who had recovered these judgments. The effect of this rule, which requires actions to be prosecuted in the name of the real party in interest, is to put an end to this practice. Under the section, standing alone, the first verdict and judgment in ejectment, as in other cases, unless it was set aside or vacated for cause, would be conclusive of the rights of the parties, that were, or might have been, there litigated. Iron Silver Mining Co. v. Campbell, 61 F. 932 (8th Cir. 1894).

Suits should be prosecuted under name of mortgagee under loss-payable clause. Where actions are required to be prosecuted in the name of the real party in interest, suits should be prosecuted in the name of the mortgagee as the person appointed to receive the amount of the loss under a policy containing a loss-payable clause, regardless of contract relations between the mortgagee and the insurer, where the amount of the mortgage equals or exceeds the loss. Reed Auto Sales v. Empire Delivery Serv., 127 Colo. 205, 254 P.2d 1018 (1953).

One who holds legal title is the real party in interest. Bassett v. Inman, 7 Colo. 270, 3 P. 383 (1883); Gomer v. Stockdale, 5 Colo. App. 489, 39 P. 355 (1895); Koch v. Story, 47 Colo. 335, 107 P. 1093 (1910); Am. Sur. Co. v. Scott, 63 F.2d 961 (10th Cir. 1933).

Real party in interest is the person or entity who holds legal title in the note sought to be enforced. Platte Valley Sav. v. Crall, 821 P.2d 305 (Colo. App. 1991); Platte Valley Mortg. Corp. v. Bickett, 916 P.2d 631 (Colo. App. 1996).

Real party in interest is the party who, by virtue of the substantive law, has the right to invoke the aid of the court to vindicate the legal interest in question. Ogunwo v. Am. Nat'l Ins. Co., 936 P.2d 606 (Colo. App. 1997); Summers v. Perkins, 81 P.3d 1141 (Colo. App. 2003).

Parties are not real parties in interest because they are not aggrieved in a legal sense. Acad. of Charter Schs. v. Adams Cty. Sch. Dist. No. 12, 994 P.2d 442 (Colo. App. 1999), rev'd on other grounds, 32 P.3d 456 (Colo. 2001).

Association lacked standing where the association was not a party to the charter contract. Acad. of Charter Schs. v. Adams Cty. Sch. Dist. No. 12, 32 P.3d 456 (Colo. 2001).

Partial assignor is a real party in interest. A party who has made a partial assignment of a note for security purpose is a partial assignor, retains...