Annotations

• 1. General

• 2. Specific cases

• 3. Miscellaneous

• 1. General

• Because a sanitary and improvement district cannot hold private property for purposes of a takings claim against its own parent state, it cannot be the real party in interest to such a takings claim. SID No. 67 v. State, 309 Neb. 600, 961 N.W.2d 796 (2021).

• The purpose of the real party in interest requirement is to ensure that actions are prosecuted only by persons who have some real interest in the cause of action or a legal or equitable right, title, or interest in the subject matter of a controversy. SID No. 67 v. State, 309 Neb. 600, 961 N.W.2d 796 (2021).

• The purpose of the "real party in interest" statute is to prevent the prosecution of actions by persons who have no right, title, or interest in the cause. Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d 906 (2016).

• Under this section, every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 25-304, R.R.S.1943. Redding v. Gibbs, 203 Neb. 727, 280 N.W.2d 53 (1979).

• Real party in interest is the party entitled to the avails of the suit. Dafoe v. Dafoe, 160 Neb. 145, 69 N.W.2d 700 (1955).

• Every action must be prosecuted in the name of the real party in interest. Uptegrove v. Metropolitan Life Ins. Co. of N.Y., 145 Neb. 51, 15 N.W.2d 220 (1944).

• Real party in interest is the person entitled to the avails of the suit. Kinsella v. Sharp, 47 Neb. 664, 66 N.W. 634 (1896).

• The court has continuing jurisdiction when the real party in interest is substituted for another party. Walker v. Probandt, 29 Neb. App. 704, 958 N.W.2d 459 (2021).

• 2. Specific cases

• Third-party-beneficiary theory is a common-law doctrine that allows a nonparty to a contract to enforce an interest owed by a promisor under the contract, provided the nonparty was an intended beneficiary whose rights and interest were apparently contemplated by the contract's language itself. Equestrian Ridge v. Equestrian Ridge Estates II, 308 Neb. 128, 953 N.W.2d 16 (2021).

• The plaintiff was the real party in interest where the defendant's legal malpractice caused harm to the plaintiff's company and where throughout litigation, the parties acknowledged and recognized the plaintiff's interest in the judgment. LeRette v. Howard, 300 Neb. 128, 912 N.W.2d 706 (2018).

• The assignee of a chose in action is the proper and only party who can maintain the suit thereon; the assignor loses all right to control or enforce the assigned right against the obligor. Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 N.W.2d 221 (2017).

• Where insurance company settled and paid insureds' loss in full and they make no demand on defendant feeling that no additional amount is owing them, insurance company would be real party in interest in suit upon assignment to it of insureds' cause of action. Jelinek v. Nebraska Nat. Gas Co., 196 Neb. 488, 243 N.W.2d 778 (1976).

• Fact that property passes the same by will as by deed conclusive of issue that neither executor nor other beneficiaries of will have standing to be real party in interest under this section. Scholting v. Alley, 185 Neb. 549, 178 N.W.2d 273 (1970).

• Plaintiffs not real parties in interest where conditions precedent to representative or derivative suit on behalf of a public corporation were not met. Evans v. Metropolitan Utilities Dist., 184 Neb. 172, 166 N.W.2d 411 (1969).

• Interested parties may appeal to district court from action of county superintendent in dissolving school district. Board of Education v. Winne, 177 Neb. 431, 129 N.W.2d 255 (1964).

• Defense of action by real party in interest was proper. Anest v. Chester B. Brown Co., 169 Neb. 330, 99 N.W.2d 615 (1959).

• Party in whose name sheep feeding operations were conducted was the real party in interest. Brown v. Globe Laboratories, Inc., 165 Neb. 138, 84 N.W.2d 151 (1957).

• Owner of truck was real party in interest to recover for violation of Installment Loan Act. McNish v. General Credit Corp., 164 Neb. 526, 83 N.W.2d 1 (1957).

• Person for whom bond was tendered was real party in interest in action to compel approval of bond. Summit Fidelity & Surety Co. v. Nimtz, 158 Neb. 762, 64 N.W.2d 803 (1954).

• Where action is brought by party designated by statute for that purpose, it meets the requirement that all actions shall be brought by the real party in interest. Boone County Old Age Assistance Board v. Myhre, 149 Neb. 669, 32 N.W.2d 262 (1948).

• An action by assignee of claim under Fair Labor Standards Act is brought by the real party in interest. Archer v. Musick, 147 Neb. 1018, 25 N.W.2d 908 (1947).

• Joinder of cause of action by plaintiff in his own right with cause of action assigned for collection is not permitted. Archer v. Musick, 147 Neb. 344, 23 N.W.2d 323 (1946).

• Action may be continued by assignee of claim in name of original party. Exchange Elevator Co. v. Marshall, 147 Neb. 48, 22 N.W.2d 403 (1946).

• Only beneficiary, or one suing on his behalf, can maintain suit against trustee to enforce trust or enjoin or obtain redress for breach of trust. In re Estate of Reynolds, 131 Neb. 557, 268 N.W. 480 (1936).

• School district was ultimate beneficiary but not necessarily the real party in interest hereunder. State ex rel. Sorensen v. Nemaha County Bank, 124 Neb. 883, 248 N.W. 650 (1933).

• Administratrix is proper party hereunder to sue for damages for death of employee; compensation act merely relates to distribution of proceeds. Goeres v. Goeres, 124 Neb. 720, 248 N.W. 75 (1933).

• Tax Commissioner exercising constitutional powers, as the real party in interest in absence of express statutory prohibition, is authorized to carry on proceedings in name of state. State v. Odd Fellows Hall Assn., 123 Neb. 440, 243 N.W. 616 (1932).

• Person injured by negligent acts of policeman in discharge of official duty may sue on policeman's bond, although same runs to city as obligee. Curnyn v. Kinney, 119 Neb. 478, 229 N.W. 894 (1930).

• Bank, although in hands of State Banking Superintendent, may sue. First State Bank of Herrick v. Conant, 117 Neb. 562, 221 N.W. 691 (1928).

• Husband and wife jointly may sue concerning real estate owned by either. Coon v. O'Brien, 107 Neb. 427, 186 N.W. 340 (1922).

• Tenant may sue in action upon contract for joint benefit of landlord and tenant concerning crop. Hurley v. Manchester, 107 Neb. 299, 185 N.W. 974 (1921).

• Purchaser from consignee, after transportation has ended, cannot maintain action against carrier for damage in transit without procuring assignment of claim from consignee. Meyer v. Chicago & N.W. Ry. Co., 101 Neb. 756, 164 N.W. 1048 (1917).

• Trustee for minor child of insured, designated as beneficiary in policy, is proper plaintiff. Ward v. Bankers Life Co., 99 Neb. 812, 157 N.W. 1017 (1916).

• A joint obligee in an appeal bond may maintain an action thereon in his own name when he has purchased the interest of his joint obligee. Harker v. Burbank, 68 Neb. 85, 93 N.W. 949 (1903).

• Third person for whose benefit promise is made may maintain action thereon, though not party to consideration. Goos v. Goos, 57 Neb. 294, 77 N.W. 687 (1898); Morrill v. Skinner, 57 Neb. 164, 77 N.W. 375 (1898).

• Assignee of chose in action is the proper and only party who can maintain an action thereon. Crum v. Stanley, 55 Neb. 351, 75 N.W. 851 (1898).

• Action on replevin bond must be brought by the party who, by the judgment in replevin, is awarded a recovery. Pilger v. Marder, Luse & Co., 55 Neb. 113, 75 N.W. 559 (1898).

• Consignee is proper party to sue for failure to deliver goods. Union P. Ry. Co. v. Metcalf, 50 Neb. 452, 69 N.W. 961 (1897).

• Where party with whom subscription contract was made assigned his interest to another, he was not a real party in interest. Gerner v. Church, 43 Neb. 690, 62 N.W. 51 (1895).

• A partnership may be plaintiff in action for fraud in purchase of real estate, although title is taken in name of individual partner. Peaks & Co. v. Graves, 25 Neb. 235, 41 N.W. 151 (1888).

• Tenants in common may or may not join in action against mere trespasser. Mattis v. Boggs, 19 Neb. 698, 28 N.W. 325 (1886).

• A private person, to be a real party in interest, in bringing an action to abate a public nuisance must show special injury to himself. Kittle v. Fremont, 1 Neb. 329 (1871).

• Once a party files a bankruptcy petition, all of his property, including choses in action, become property of the bankruptcy estate, and the bankruptcy trustee becomes the real party in interest with respect to such choses in action, until such time as the trustee may abandon the chose in action. Forrest v. Eilenstine, 5 Neb. App. 77, 554 N.W.2d 802 (1996).

• Where the State brought an action for mother's medical expenses on behalf of child, the State failed to properly state a claim for such expenses. State on behalf of Dunn v. Wiegand, 2 Neb. App. 580, 512 N.W.2d 419 (1994).

• 3. Miscellaneous

• Under this section, an amendment joining the real parties in interest relates back to the date of the original pleading. Fisher v. Heirs & Devisees of T.D. Lovercheck, 291 Neb. 9, 864 N.W.2d 212 (2015).

• An agreement to assign all proceeds, if any, of an insurance policy does not operate to divest a plaintiff of the capacity to bring an action. Craig v. Farmers Mut. Ins. Co., 239 Neb. 271, 476 N.W.2d 529 (1991).

• A plaintiff's cause of action cannot be split, and having settled with defendant for injuries, he cannot bring action upon claim of insurance company against defendant for money paid plaintiff under a collision policy. Schmidt v. Henke, 192 Neb. 408, 222 N.W.2d 114 (1974).

• The Attorney General may bring an action for a declaratory judgment challenging the constitutionality of a statute which the Tax Commissioner proposed to implement and enforce. State ex rel. Meyer v. Peters, 188 Neb. 817, 199 N.W.2d 738 (1972).

• An issue that plaintiff is not the real party in interest must be specially pleaded. Neill v. McGinn, 175 Neb. 369, 122 N.W.2d 65 (1963).

• This section applies to forcible entry and detainer cases. Gregory v. Pribbeno, 143 Neb. 379, 9 N.W.2d 485 (1943).

• This section applies to forcible detainer cases. Towles v. Hamilton, 94 Neb. 588, 143 N.W. 935 (1913).

• If plaintiff's name imports a corporation, it is not necessary to allege its corporate capacity in terms. Fletcher v. Co-operative Pub. Co., 58 Neb. 511, 78 N.W. 1070 (1899).

• Plaintiff suing on account should do so by Christian name. Small v. Sandall, 48 Neb. 318, 67 N.W. 156 (1896); Fisk v. Gulliford, 1 Neb. Unof. 31, 95 N.W. 494 (1901).

• Where pleadings disclose cause of action against defendant personally, super-added words, as "agent" or "ex-executor," etc., are mere descriptio personae. Thomas v. Carson, 46 Neb. 765, 65 N.W. 899 (1896).

• Where a contract of guaranty is transferred by assignment, assignee may sue in his own name. Weir v. Anthony, 35 Neb. 396, 53 N.W. 206 (1892).

• A party has no standing to sue if the party has assigned all of its rights in the property which is the subject of the assignment. Sherman v. Sherman, 16 Neb. App. 766, 751 N.W.2d 168 (2008).

• An assignee of a chose in action may sue on it in his own name and right. State Securities Co. v. Federated Mut. Imp. & Hard. Ins. Co., 204 F.Supp. 207 (D. Neb. 1960).