On Petition for Rehearing
PER CURIAM.By petition for rehearing the appellants have urged, among other things, that we failed, in our holding that no claim for relief was stated, to apply Rule 20, Fed.Rules Civ.Proc. 28 U.S.C.A. which permits plaintiffs to assert rights to relief in the alternative. This portion of our opinion was not necessary to the decision. Since the question was not raised or urged either in the district court or before us, we now conclude that its consideration should be deferred until squarely presented. Therefore, we delete and withdraw from our opinion that portion thereof reading as follows: “There is, however, another ground which we think would require dismissal. The three appellants, in their complaint, allege, and their whole claim of right is predicated upon the allegation, that
‘The title to the materials in question was, at the time of the levy of execution, in plaintiff, Maulé Industries, Inc.; or, in the alternative, in plaintiff, Capitol Indemnity and Insurance Company, or, in the alternative, in plaintiff, Jefferson Construction Company.’
An averment so framed is repugnant to any theory that the appellants have any joint cause of action. The allegation, *902however construed, must be regarded as a statement that two of the appellants have no claim but without saying which two. It cannot be regarded as saying that any designated one of the three was claiming the title. So framed, the complaint does not state a claim upon which relief can be granted. Rule 12, Fed.Rules Civ.Proc. The question of misjoinder of parties plaintiff under Rule 21, Fed.Rules Civ.Proc. is not reached when no right is stated in any of the plaintiffs, nor is there involved any right to assert inconsistent claims. See Rule 8(e) (2), Fed.Rules Civ.Proc. The action must be brought by the real party in interest. Rule 17, Fed.Rules Civ. Proc. To be a party plaintiff one must have a remedial interest in the cause of action which the court may recognize and enforce. If any one of the three plaintiffs is a real party in interest or is possessed of a remedial interest, the other two are not and the complaint does not show that either of them has a right which the court can recognize and enforce.”
With the opinion thus modified, the petition for rehearing is
Denied.