Rule 813. Procedure When Incompetent Party Not Designated as Such.

 A. Except as provided in subdivisions B and C of this rule, if during the pendency of the action the magisterial district judge finds that a party not designated in the complaint as an incompetent represented by his guardian is an incompetent, the magisterial district judge shall dismiss the proceeding without prejudice. Such a finding shall be based on the fact that the party has a guardian appointed because of the party’s incompetency by a court of competent jurisdiction.

 B. If the party as to whom such a finding is made is one of several plaintiffs or defendants, the proceedings shall be dismissed only as to him.

 C. A complaint filed by a party who is an incompetent but not designated as such in the complaint may be amended by his guardian, at any time during the pendency of the action before judgment, to state that the party is an incompetent represented by his guardian. A complaint filed against a party who is an incompetent but not designated as such may be amended to state that the party is an incompetent represented by his guardian only with the written consent of the guardian, which shall be attached to the record copy of the complaint form.

   Official Note

   With the exceptions stated, subdivision of this rule requires that the proceedings be dismissed without prejudice when the magisterial district judge finds that a party not designated in the complaint as an incompetent represented by his guardian is actually an incompetent, that is, one who already has a guardian because of incompetency (see Rule 801(2)). This rule is intended to take care of a situation in which incompetency is not disclosed or not known at the time the complaint is filed.

   The exception is subdivision B is obvious. The exception in the first sentence of subdivision C contemplates a case in which the incompetent files his own complaint without disclosing his incompetency and this fact comes to light during the pendency of the action. This exception will allow the guardian to make what is in effect a ratifying amendment to the complaint, so that the case can go on a judgment. The exception in the second sentence of subdivision C permits an amendment with the written consent of the guardian in actions brought against undesignated incompetents, the guardian’s consent being required because service will not normally have been made upon him under these circumstances and to allow reissuance and new service of the complaint, as amended, would be incompatible with the general civil procedure for magisterial district judges. Neither of the amendments provided for in subdivision C need be made in compliance with Rule 316 or Rule 509.