C.r.c.p. 17
C.r.c.p. 17
Annotation 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); LElk-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 part of his substantive right and is a real party in interest under section (a) of this rule. Jouflas v. Wyatt, 646 P.2d 946 (Colo. App. 1982). Purchaser of land may sue for accrued rents and profits. While it may be proper for a vendor of land to bring suit against the disseizor, in order that he may be able to deliver possession to the purchaser, yet, after the recovery in such action, it is entirely proper for the purchaser to sue in his own name for the rents and profits which accrued pending the former action, since he is the real party in interest. Limberg v. Higenbotham, 11 Colo. 156, 17 P. 481 (1887). An assignee of claim may bring action in his own name. That an entire claim for damages to property may be assigned so as to vest in the assignee the right of action in his own name, is well established for the general rule is that assignability and descendibility go hand in hand. Home Ins. Co. v. Atchison, T. & S. F. R. R., 19 Colo. 46, 34 P. 281 (1893); Hoeppner Constr. Co. v. United States, 287 F.2d 108 (10th Cir. 1960); Thistle, Inc. v. Tenneco, Inc., 872 P.2d 1302 (Colo. App. 1993). Whether it be an open account or otherwise, see Bassett v. Inman, 7 Colo. 270, 3 P. 383 (1883); Gomer v. Stockdale, 5 Colo. App. 489, 39 P. 355 (1895). There may be annexed to the transfer a condition that when the sum is collected the whole or some part of it must be paid over to the assignor. Bassett v. Inman, 7 Colo. 270, 3 P. 383 (1883); Gomer v. Stockdale, 5 Colo. App. 489, 39 P. 355 (1895). Almost any surviving right of action may be assigned so as to enable the assignee to maintain a suit in his own name. Reddicker v. Lavinsky, 3 Colo. App. 159, 32 P. 349 (1893). Assignment of a claim after suit is filed but before trial is sufficient to make plaintiff a real party in interest. Thistle, Inc. v. Tenneco, Inc., 872 P.2d 1302 (Colo. App. 1993); Platte Valley Mortg. Corp. v. Bickett, 916 P.2d 631 (Colo. App. 1996). A plaintiff not having standing at the outset of litigation may acquire standing after an objection is raised and the standing later acquired relates back to the commencement of the proceedings. Miller v. Accelerated Bureau of Collections, Inc., 932 P.2d 824 (Colo. App. 1996). Generally, if a claim has been assigned in full, the assignee is the real party in interest with a right to pursue an action thereon; however, a partial assignor retains part of his or her substantive right and is a real party in interest under section (a). In re Cespedes, 895 P.2d 1172 (Colo. App. 1995). Intangible property assignment. Assignment of all of an owner's right, title, and interest to intangible personal property includes an assignment of any agreements regarding the property to the extent the agreement benefits the transferee, and the transferee is the real party in interest to pursue its contract violation claims and related tort claims. Thistle, Inc. v. Tenneco, Inc., 872 P.2d 1302 (Colo. App. 1993). Notice to, knowledge of, or acquiescence by the real party in interest in an action does not confer standing on the plaintiff. The stipulation entered into between the plaintiffs and the bankruptcy trustee deals only with the relationship between the plaintiffs and the trustee and does not confer standing on the plaintiffs. Miller v. Accelerated Bureau of Collections, Inc., 932 P.2d 824 (Colo. App. 1996). A claim asserted by a grantee of lands against the grantor for moneys paid to relieve them of taxes for which the grantor was liable may be effectually assigned so as to give the assignee an action in his own name. Rambo v. Armstrong, 45 Colo. 124, 100 P. 586 (1909). As legal title to a note is in one by reason of assignment, an action will lie in his name. Walsh v. Allen, 6 Colo. App. 303, 40 P. 473 (1895); Best v. Rocky Mt. Nat'l Bank, 37 Colo. 149, 85 P. 1124 (1906). Where, after the execution and delivery of a promissory note, a person other than the payee and not otherwise connected with the note, for a new and sufficient consideration receives by himself from the payee promises to pay the note and thereupon indorses the same, he thereby makes the debt his own, and such debt is assignable so as to vest in the assignee a right of action in his own name. Fisk v. Reser, 19 Colo. 88, 34 P. 572 (1893); Gates v. Hepp, 95 Colo. 285, 35 P.2d 857 (1934). An assignee of a valid mechanic's lien has a right to recover, and in an action to foreclose is the real party in interest. Howard v. Fisher, 86 Colo. 493, 283 P. 1042 (1929). "Surviving" partner of dissolved partnership may sue on account due. Where a partnership has, in fact, been dissolved when suit is brought and plaintiff, through a settlement between himself and his copartner, including his purchase of the partnership property, has become the exclusive owner of an account sued on, he is therefore the only party really interested in collecting the balance due; hence, under this rule the action is properly brought in his name alone. Bassett v. Inman, 7 Colo. 270, 3 P. 383 (1883). Partner in a general partnership is a real party in interest. Erickson v. Oberlohr, 749 P.2d 996 (Colo. App. 1987). Even though a contract involved is entered into for the ultimate benefit of plaintiff's parent corporation, plaintiff is real party in interest entitled to bring the action without joining its parent corporation. P & M Vending Co. v. Half Shell of Boston, Inc., 41 Colo. App. 78, 579 P.2d 93 (1978). Contrary common-law rule no longer applies. The common-law principle that an action for a partnership debt, whether instituted before or after dissolution of the firm, must be prosecuted in the name of all the partners, does not, under the present practice apply. Walker v. Steel, 9 Colo. 388, 12 P. 423 (1886). Partner in whose name contract was made may sue in own name. In action for breach of contract where plaintiff has partners and the profits will be split, but he has the sole handling of the matter everything is in his name and defendant makes no attempt to have other parties joined, plaintiff has the capacity to sue in his own name. Monks v. Hemphill, 121 Colo. 1, 212 P.2d 1004 (1949). Action on bond of county treasurer should be in his name. Since a bond taken by a county treasurer as security for county money deposited by him in a bank, running to him as treasurer, is a bond for his own safety and not for the benefit of the county, he is the real party in interest therein and the one in whose name an action thereon should be brought. Moulton v. McLean, 5 Colo. App. 454, 39 P. 78 (1895). Action on injunction bond personal right of treasurer. Where an injunction against a county treasurer was dissolved, a right of action upon the injunction bond is a personal right of the treasurer, and he might maintain a personal action upon the bond after his term of office has expired. He is the proper party to maintain such action, and the fact that the county may have paid the expenses of resisting the injunction and would be entitled to receive the amount of damages recovered when collected, is immaterial to the obligors in the bond. Breeze v. Haley, 13 Colo. App. 438, 59 P. 333 (1899). It is not necessary to appoint administrator to prosecute action upon appeal bond, but that action could be prosecuted by devisee in own name. Austin v. Snider, 17 Colo. App. 182, 68 P. 125 (1902). Party was properly dismissed based upon holding that an employer or business may not recover against a third party for economic losses it suffered as a result of the third party's tortious injury to its employee. Gonzalez v. Yancey, 939 P.2d 525 (Colo. App. 1997). For the right of a bank commissioner to bring action against bank stockholders, see Broadbent v. McFerson, 80 Colo. 264, 250 P. 852 (1926). Applied in Baumgarten v. Burt, 148 Colo. 64, 365 P.2d 681 (1961); Valley Realty & Inv. Co. v. McMillan, 160 Colo. 109, 414 P.2d 486 (1966); Hollingsworth v. Satterwhite, 723 P.2d 169 (Colo. App. 1986). C. Action by Executor or Trustee or in Contract. A trustee may at his option sue in his own name or may join his "cestuis que" trust. Hecker v. Cook, 20 Colo. App. 282, 78 P. 311 (1904); Faust v. Goodnow, 4 Colo. App. 352, 36 P. 71 (1906). Under this rule, 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 sue in his own name without joining with him the party for whose benefit the action is brought. Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 484 P.2d 1211 (1971). The judgment in an action by either will bar a subsequent action by the other. Hecker v. Cook, 20 Colo. App. 282, 78 P. 311 (1904). It is not necessary that a trustee set forth the trust. The trustee of an express trust in real property may maintain an action to restrain irreparable injury thereto, without setting forth the nature of the trust, the name of the beneficiary, or his character as trustee. An averment of his trust capacity may be treated as surplusage. Koch v. Story, 47 Colo. 335, 107 P. 1093 (1911); Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 484 P.2d 1211 (1971). Where the official bond of an officer in a fraternal society runs to the trustees of the society under the name the society bore prior to incorporation, such trustees can maintain an action in their own names on the bond for a default therein without making the society a party thereto, although at the time of the execution of the bond and the bringing of the action the society was incorporated under a slightly different name from that it bore prior to incorporation. Hecker v. Cook, 20 Colo. App. 282, 78 P. 311 (1904). An averment of trust capacity may be treated as surplusage. Koch v. Story, 47 Colo. 335, 107 P. 1093 (1911). The trustee of an express trust is authorized to maintain an action. Hardy v. Swigart, 25 Colo. 136, 53 P. 380 (1898); Houck v. Williams, 34 Colo. 138, 81 P. 800 (1905). Cashier of bank who contracts may become the trustee of an express trust. The cashier of an unincorporated bank, who is also a partner, who is alone authorized to transact all the business, and in whose name contracts are habitually made for the bank may become by virtue of such a contract the trustee of an express trust and may sue thereon in his own name. Merchants' Bank v. McClelland, 9 Colo. 608, 13 P. 723 (1886). A suit on contract is properly brought in the name of the contractor. City & County of Denver v. Morrison, 88 Colo. 67, 291 P. 1023 (1930). A person with whom or in whose name a contract has been made for the benefit of another may maintain an action thereon in his own name. Rockwell v. Holcomb, 3 Colo. App. 1, 31 P. 944 (1892). Although others are interested in the contract, it is not necessary that they should be made parties. City & County of Denver v. Morrison, 88 Colo. 67, 291 P. 1023 (1930). In an action by a bank to collect certain money which it had been expressly authorized to collect by one to whom the money was owing, the suit need not be brought in the name of the beneficial owner, for the suit could be maintained in the name of the trustee. First Nat'l Bank v. Hummel, 14 Colo. 259, 23 P. 986 (1890). Where a contract is made for the benefit of a third person, the latter may bring an action thereon. Haldane v. Potter, 94 Colo. 558, 31 P.2d 709 (1934). There is nothing to prevent real party from becoming litigant. While one who has made a contract for the benefit of another can prosecute an action in his own name, there is nothing to prevent the real party in interest from becoming the actual litigant. Gates v. Hepp, 95 Colo. 285, 35 P.2d 857 (1934). When, as a matter of fact, the beneficiary becomes an actual party to the action, the latter, in respect to the primary right, supersedes the former, whereupon the judgment entered must be in favor of the beneficiary if he succeeds or against him if he fails. Gates v. Hepp, 95 Colo. 285, 35 P.2d 857 (1934). An action may be brought by a bank on a promissory note given in renewal of a similar note made payable to it, although the renewal note mistakenly is made payable to the president of the bank, who turns it over to the bank as its property, the latter retaining it in possession at all times, notwithstanding section (a) of this rule which provides that one in whose name a contract is made for the benefit of another may sue without joining the person beneficially interested. Best v. Rocky Mt. Nat'l Bank, 37 Colo. 149, 85 P. 1124 (1906). If a person has the right to sue, no error can be based on a proceeding under this rule. Rockwell v. Holcomb 3 Colo. App. 1, 31 P. 944 (1892). If defendants imagined it to be necessary for their protection that the beneficiary should be brought into the suit, doubtless they might procure an order for the purpose, but, having taken no action in the trial court, they cannot be held on appeal to assign error concerning it. Faust v. Goodnow, 4 Colo. App. 352, 36 P. 71 (1894). Estate beneficiaries are not indispensable parties to a partition action commenced by the personal representative, where the personal representative is acting on behalf of all the estate beneficiaries to segregate their collective interests in the real property to be partitioned, so that he can perform his statutory duty to settle and distribute the estate expeditiously and efficiently. Fry & Co. v. District Court, 653 P.2d 1135 (Colo. 1982). III. Capacity to Sue or Be Sued. A. In General. Annotator's note. Since section (b) of this rule is similar to §§ 6 and 9 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing §§ 6 and 9 have been included in the annotations to this rule. Actions may be brought only by legal entities and against legal entities. Ivanhoe Grand Lodge A.F. & A.M. v. Most Worshipful Grand Lodge A.F. & A.M., 126 Colo. 515, 251 P.2d 1085 (1952). There must be some ascertainable persons, natural or artificial, to whom judgments are awarded and against whom they may be enforced. Ivanhoe Grand Lodge A.F. & A.M. v. Most Worshipful Grand Lodge A.F. & A.M., 126 Colo. 515, 251 P.2d 1085 (1952). A voluntary condominium association has standing and may maintain an action on behalf of its members if: (1) Its members would otherwise have standing to sue in their own right; (2) the interests sought to be protected are germane to the association's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of individual members in the litigation. Villa Sierra Condominium v. Field Corp., 787 P.2d 661 (Colo. App. 1990). This rule does not grant the right to sue to a loosely formed group. Hidden Lake Dev. Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973). B. Married Women. That section (b) relates to procedure and does not confer a substantive right is an objection that cannot be urged successfully against § 6 of art. II, Colo. Const. Rains v. Rains, 97 Colo. 19, 46 P.2d 740 (1935). If the common-law fiction of unity ever existed in this state, it does not exist now. Whyman v. Johnston, 62 Colo. 461, 163 P. 76 (1917); Hedlund v. Hedlund, 87 Colo. 607, 290 P. 285 (1930); Rains v. Rains, 97 Colo. 19, 46 P.2d 740 (1935). A married woman may sue and be sued in all matters, including contract. A married woman may in this state enter into any contract, express or implied, the same as if she were sole; she may, in like manner, be held liable thereon; and in civil actions, she may sue and be sued in all matters the same as if she were sole. Rose v. Otis, 18 Colo. 59, 31 P. 493 (1892); Thompson v. Thompson, 30 Colo. App. 57, 489 P.2d 1062 (1971). A married woman may sue husband for personal injuries caused by his negligence. In view of the broad, liberal provisions of the constitution and statutes of this state and the liberal construction thereof adopted by the courts of this state, a wife may sue her husband for personal injuries caused by the negligence of her husband. Rains v. Rains, 97 Colo. 19, 46 P.2d 740 (1935). C. Partnerships or Unincorporated Associations. At common law, an unincorporated association of persons had no capacity to sue or be sued in any character other than as partners in whatever was done, and it was necessary for such an association to sue or defend in the names of its members, and liability had to be enforced against each member. Thomas v. Dunne, 131 Colo. 20, 279 P.2d 427 (1955). Necessities dictated otherwise. The growth of large unincorporated associations of many different kinds, and the necessities arising therefrom, at an early date called for legal recognition of such associations as entities possessed of capacity to sue, and be sued, in their common name. Thomas v. Dunne, 131 Colo. 20, 279 P.2d 427 (1955). This rule purports to create a new right not theretofore recognized in the law and authorizes the bringing of an action in the common name of an unincorporated association. Thomas v. Dunne, 131 Colo. 20, 279 P.2d 427 (1955). Section (b) is permissive and not mandatory. A partnership or a limited partnership may sue or be sued either in its common name or by naming its partners. Frazier v. Carlin, 42 Colo. App. 226, 591 P.2d 1348 (1979). Section (b) must be viewed as either creating an entity or permitting existing ones to sue. Section (b) of this rule must be held either to create an artificial entity of a partnership or unincorporated association or to permit existing entities to bring suit in an artificial name. Ivanhoe Grand Lodge A.F. & A.M. v. Most Worshipful Grand Lodge A.F. & A.M., 126 Colo. 515, 251 P.2d 1085 (1952). If this rule is held to be one creating a legal entity capable of suing or being sued, it is performing a legislative, rather than a judicial function, and the rule would therefore, be beyond the power of the court. Ivanhoe Grand Lodge A.F. & A.M. v. Most Worshipful Grand Lodge A.F. & A.M., 126 Colo. 515, 251 P.2d 1085 (1952). If an existing entity is permitted to sue under a common or artificial name, then, upon challenge by defendant, the plaintiff must disclose the identity of the parties so doing; and if defendant seeks affirmative relief in excess of the property or rights owned, held, possessed, or exercised by the partnership or unincorporated association itself, then the ascertained legal entities must be properly served with process and be made parties to the action. Ivanhoe Grand Lodge A.F. & A.M. v. Most Worshipful Grand Lodge A.F. & A.M., 126 Colo. 515, 251 P.2d 1085 (1952). Status of an unincorporated association to sue must be founded on more than a bold allegation, and to sue as an unincorporated association in name only is insufficient. Hidden Lake Dev. Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973). D. Injury or Death of Child. While a father and mother may join in a damage suit, it is not essential that they should so join. Pierce v. Conners, 20 Colo. 178, 37 P. 721 (1894). The joining of the father and mother is permissive. The joining of the father and mother appears to be permissive, not imperative. Pierce v. Conners 20 Colo. 178, 37 P. 721 (1894). Joinder or nonjoinder material only to parents themselves. The joinder or nonjoinder of a parent in an action for damages is material only to the parents themselves. Pierce v. Conners, 20 Colo. 178, 37 P. 721 (1894). Since either or both may sue, the defendant cannot be affected or prejudiced whichever course they may take; the grounds and measure of recovery are the same in either case, and the defendant can only be subjected to a single suit. Pierce v. Conners, 20 Colo. 178, 37 P. 721 (1894). IV. Infants or Incompetent Persons. A. In General. Law reviews. For article, "Legal Capacity of Adjudged Incompetents", see 29 Dicta 292 (1952). Annotator's note. Since section (c) of this rule is similar to § 7 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule. Quasi-judicial immunity. A court appointed guardian ad litem in service of the public interest in the welfare of children is entitled to absolute quasi-judicial immunity. Short by Ossterhous v. Short, 730 F. Supp. 1307 (D. Colo. 1990). Applied in Welsh v. Independent Lumber Co., 110 Colo. 280, 133 P.2d 535 (1943). B. Sue or Defend. Where an infant is a party to a suit, he must appear by next friend or guardian to be appointed by the court or judge. Seaton v. Tohill, 11 Colo. App. 211, 53 P. 170 (1898). He is in reality, however, but the agent of the court through whom it acts to protect the interest of the minor. Seaton v. Tohill, 11 Colo. App. 211, 53 P. 170 (1898). The court is itself the guardian. Seaton v. Tohill, 11 Colo. App. 211, 53 P. 170 (1898). The court will suffer no advantage to be taken of those acting in the infant's behalf to the detriment of the infant. Seaton v. Tohill, 11 Colo. App. 211, 53 P. 170 (1898). If a next friend does not perform properly, the court could and should remove her, and, if appropriate, could appoint a successor. The court should not allow the next friend's conduct to deprive the infant of his rights. Black ex rel. Bayless v. Cullar, 665 P.2d 1029 (Colo. App. 1983). Next friend may assist child in suit to enforce support obligation of parent. When a noncustodial parent's child support obligation is incorporated into a dissolution decree, and the custodial parent dies and the child is not in the physical custody of the noncustodial parent, the child support obligation of the noncustodial parent continues beyond the death of the custodial parent in accordance with the terms of the dissolution decree, and such obligation of the parent can be enforced through a suit on behalf of the child by a next friend. Abrams v. Connolly, 781 P.2d 651 (Colo. 1989). Son may bring action on behalf of his incompetent father by proceeding as his next friend although son had not been appointed guardian. Delsas ex rel. Delsas v. Centex Home Equity, 186 P.3d 141 (Colo. App. 2008). An infant cannot be bound by the admissions of his guardian unless they are for his benefit. Seaton v. Tohill, 11 Colo. App. 211, 53 P. 170 (1898). An infant cannot be bound by guardian's errors or omissions in his answers or pleadings. Seaton v. Tohill, 11 Colo. App. 211, 53 P. 170 (1898). It is the policy of the law to fully protect the rights of minors, and this may be done, even if the guardian or "prochein ami" does not properly claim such rights or has even failed to claim them at all. Hutchison v. McLaughlin, 15 Colo. 492, 25 P. 317 (1890); Seaton v. Tohill, 11 Colo. App. 211, 53 P. 170 (1898). Presence of both parents at an administrative hearing concerning a minor is not required, thus administrative law judge's order of sequestration that included minor's father, since he was a witness, was not error. M.G. v. Colo. Dept. of Human Servs., 12 P.3d 815 (Colo. App. 2000). C. Appointment of Guardian. This rule does not make the appointment of a guardian "ad litem" mandatory. Johnson v. Lambotte, 147 Colo. 203, 363 P.2d 165 (1961). Where a mental incompetent is "otherwise represented" by well qualified lawyers of long experience at the bar, the appointment of a guardian "ad litem" is not necessary. Johnson v. Lambotte, 147 Colo. 203, 363 P.2d 165 (1961). The appointment of a guardian ad litem is a matter left to the discretion of the court if the adult incompetent is already represented by an attorney. People in Interest of M.M., 726 P.2d 1108 (Colo. 1986). "Incompetent person" includes those who are mentally impaired to the degree of being incapable of effectively participating in a proceeding and thus need the assistance of a fiduciary representative. People in Interest of M.M., 726 P.2d 1108 (Colo. 1986). When a substantial question exists regarding the mental competence of a spouse in a domestic relations proceeding, the preferred procedure is for the trial court to conduct a hearing to determine whether or not the spouse is competent, so that a guardian ad litem may be appointed if needed. In re Sorensen, 166 P.3d 254 (Colo. App. 2007). It would be an abuse of discretion not to appoint a guardian ad litem in those situations in which the spouse (1) is mentally impaired so as to be incapable of understanding the nature and significance of the proceeding; (2) is incapable of making critical decisions; (3) lacks the intellectual capacity to communicate with counsel; or (4) is mentally or emotionally incapable of weighing the advice of counsel on the particular course to pursue in his or her own interest. In re Sorensen, 166 P.3d 254 (Colo. App. 2007). No error in trial court's determination that it had not automatically lost jurisdiction to enter an award for payment of guardian ad litem fees by husband upon wife's death; in contrast to an order pertaining to custody, parenting time, property division, or attorney fees under the Uniform Dissolution of Marriage Act, trial court's authority to appoint a guardian ad litem and to order payment of the guardian's fees was not dependent upon the fact that the case at hand was a dissolution of marriage proceeding. In re Heil, 33 P.3d 1270 (Colo. App. 2001).
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.