GA Code § 9-11-17 (2021)
2021 Georgia Code|Title 9 - Civil Practice|Chapter 11 - Civil Practice Act|Article 4 - Parties|§ 9-11-17. Real Party in Interest; Capacity

  Real party in interest. Every action shall be prosecuted in the name of the real party in interest. A personal representative, a temporary administrator, a guardian, a conservator, a bailee, a 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 bring an action in his or her own name without joining with him or her 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. 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.   Capacity to bring or defend an action. The capacity of an individual, including one acting in a representative capacity, to bring or defend an action shall be determined by the law of this state. The capacity of a corporation to bring or defend an action shall be determined by the law under which it was organized, unless a statute of this state provides to the contrary.   Infants or incompetent persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may bring or defend an action on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, he or she may bring an action by his or her 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. No next friend shall be permitted to receive the proceeds of any personal action, in the name and on behalf of an infant or incompetent person, until such next friend shall have entered into a sufficient bond to the Governor, for the use of the infant and the infant's representatives, conditioned well and fully to account for and concerning such trust, which bond may be sued on by order of the court in the name of the Governor and for the use of the infant. Such bond shall be approved by the court in which the action is commenced and such approval shall be filed in such clerk's office.    (Ga. L. 1966, p. 609, § 17; Ga. L. 1968, p. 1104, § 6; Ga. L. 1985, p. 656, § 1; Ga. L. 2020, p. 377, § 2-7/HB 865.)    The 2020 amendment,  effective January 1, 2021, in subsection (a), in the second sentence, substituted "A personal representative, a temporary" for "An executor, an", inserted "a conservator,", and inserted "or her" twice; and, in subsection (c), inserted "or she" and "or her" in the second sentence and substituted "infant" for "infant," at the beginning of the fourth sentence.   Cross references.   - Appointment of guardian for incompetent person by judge of probate court generally, Ch. 5, T. 29.    Appointment of guardians ad litem in probate proceedings, § 53-3-19.   U.S. Code.   - For provisions of Federal Rules of Civil Procedure, Rule 17, see 28 U.S.C.   Law reviews.   - For article, "Synopses of 1968 Amendments to the Appellate Procedure Act and Georgia Civil Practice Act," see 4 Ga. St. B.J. 503 (1968). For article, "The Child as a Party in Interest in Custody Proceedings," see 10 Ga. St. B.J. 577 (1974). For article discussing Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976), holding Georgia's notice requirement for year's support unconstitutional prior to 1977 revision, see 13 Ga. St. B.J. 85 (1976). For article surveying developments in Georgia real property law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 219 (1981). For article surveying developments in Georgia trial practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 275 (1981). For survey article on trial practice and procedure, see 34 Mercer L. Rev. 299 (1982). For article, "Georgia's 'Door-Closing' Statute: Who Bears the Burden?," see 24 Ga. St. B.J. 141 (1988). For annual survey of domestic relations cases, see 57 Mercer L. Rev. 173 (2005). For survey article on appellate practice and procedure, see 60 Mercer L. Rev. 21 (2008). For note, "The Great Escape: How One Plaintiff's Sidestep of a Mandatory Arbitration Clause Was Applied to a Class in Bickerstaff v. SunTrust Bank," see 68 Mercer L. Rev. 539 (2017).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Real Party in Interest   Infants or Incompetent Persons    RESEARCH REFERENCES   Am. Jur. 2d.   - 6 Am. Jur. 2d, Associations and Clubs, § 49 et seq. 18 Am. Jur. 2d, Cooperative Associations, § 3. 18 Am. Jur. 2d, Corporations, § 2. 39 Am. Jur. 2d, Guardian and Ward, § 186 et seq. 42 Am. Jur. 2d, Infants, §§ 24, 25, 146 et seq. 48 Am. Jur. 2d, Labor and Labor Relations, § 623 et seq. 59 Am. Jur. 2d, Parties, § 22 et seq. 59A Am. Jur. 2d, Partnership, § 294 et seq.   13 Am. Jur. Pleading and Practice Forms, Guardian, § 494. 19 Am. Jur. Pleading and Practice Forms, Parties, § 2 et seq.   C.J.S.   - 35A C.J.S., Federal Civil Procedure, § 56 et seq. 39 C.J.S., Guardian and Ward, § 264. 43 C.J.S., Infants, §§ 395, 396. 57 C.J.S., Mental Health, § 374 et seq. 67A C.J.S., Parties, §§ 7 et seq., 36.   ALR.    - Right of husband and wife to maintain joint action for wrongs directly affecting both arising from same act, 25 A.L.R. 743.    Right of attorney, parent, guardian ad litem, or next friend to remit from verdict or judgment in favor of infant, 30 A.L.R. 1111.    Duty of one learning of action instituted in his name without authority, 63 A.L.R. 1068.    Corporation which pays tax wrongfully exacted upon shares of its stock as proper party to maintain action for its recovery, 84 A.L.R. 107.    Proper party plaintiff to action against tort-feasor for damage to insured property where insurer is entitled to subrogation to extent of loss paid by it, 96 A.L.R. 864; 157 A.L.R. 1242.    Principal contractor as necessary party to suit to enforce mechanic's lien of subcontractor, laborer, or materialman, 100 A.L.R. 128.    Water user as necessary or proper party to litigation involving the right of ditch or canal company or irrigation or drainage district from which he takes water, 100 A.L.R. 561.    Marital or parental relationship between plaintiff and member of partnership as affecting right to maintain action in tort against partnership, 101 A.L.R. 1231.    Right of ward to maintain action independent from his general guardian, on contracts or other obligations entered into by the guardian on ward's behalf, 102 A.L.R. 269.    Remedy for conservation of property of alleged incompetent prior to his adjudication as such, 107 A.L.R. 1392.    Guardianship of incompetent or infant as affecting venue of action, 111 A.L.R. 167.    By and in whose name suit to annul infant's marriage must be brought, 150 A.L.R. 609.    Suits and remedies against alien enemies, 152 A.L.R. 1451; 153 A.L.R. 1419; 155 A.L.R. 1451; 156 A.L.R. 1448, 157 A.L.R. 1449.    Proper party plaintiff to action against tort-feasor for damage to insured property where insurer is entitled to subrogation to extent of loss paid by it, 157 A.L.R. 1242.    Appearance by guardian ad litem without service of summons, 164 A.L.R. 529.    May proceedings to have a person declared insane and to appoint a conservator or committee of his person or estate rest upon substituted or constructive service of process, 175 A.L.R. 1324.   Right of mother of illegitimate child to appeal from order or judgment entered in bastardy proceedings, 13 A.L.R.2d 948.   Conflict of laws as to right of injured person to maintain direct action against tort-feasor's automobile liability insurer, 16 A.L.R.2d 881.   Right of individual employee to enforce collective labor agreement against employer, 18 A.L.R.2d 352.   Joinder of insurer and insured under policy of compulsory indemnity or liability insurance in action by injured third person, 20 A.L.R.2d 1097.   Corporation as necessary or proper party defendant in proceedings to determine validity of election or appointment of corporate director or officer, 21 A.L.R.2d 1048.   Liability of incompetent's estate for torts committed by guardian, committee, or trustee in managing estate, 40 A.L.R.2d 1103.   What law governs as to proper party plaintiff in contract action, 62 A.L.R.2d 486.   Federal Civil Procedure Rule 17(c), relating to representation of infants or incompetent persons, 68 A.L.R.2d 752.   Capacity of one who is mentally incompetent but not so adjudicated to sue in his own name, 71 A.L.R.2d 1247.   Right of insurance agent to sue in his own name for unpaid premium, 90 A.L.R.2d 1291.   Capacity of guardian to sue or to be sued outside state where appointed, 94 A.L.R.2d 162.   Liability of corporation for torts of subsidiary, 7 A.L.R.3d 1343.   Proper party plaintiff, under real party in interest statute, to action against tort-feasor for damage to insured property where insured has paid part of loss, 13 A.L.R.3d 140.   Proper party plaintiff, under real party in interest statute, to action against tort-feasor for damage to insured property where loss is entirely covered by insurance, 13 A.L.R.3d 229.   Right of pledgor of commercial paper to maintain action thereon in his own name, 43 A.L.R.3d 824.   Liability of insane person for his own negligence, 49 A.L.R.3d 189.   Right of member, officer, agent, or director of private corporation or unincorporated association to assert personal privilege against self-incrimination with respect to production of corporate books or records, 52 A.L.R.3d 636.   Standing to contest award of, or acquisition of right to operate, cable TV certificate, license, or franchise in state court action, 78 A.L.R.3d 1255.   Tolling of state statute of limitations in favor of one commencing action despite existing disability, 30 A.L.R.4th 1092.   Joint venture's capacity to sue, 56 A.L.R.4th 1234.   Standing to bring action relating to real property of condominium, 74 A.L.R.4th 165.   Availability of sole shareholder's Fifth Amendment privilege against self-incrimination to resist production of corporation's books and records--modern status, 87 A.L.R. Fed. 177.   Representation of Minors and Infants Under Fed. R. Civ. P. 17(c), 27 A.L.R. Fed. 3d 5.   Representation of "Incompetent Persons" Under Fed. R. Civ. P. 17(c), 29 A.L.R. Fed. 3d 4.