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CHAPTER 21-18

GARNISHMENT OF DEBTS AND PROPERTY

21-18-1      Actions or small claims proceedings in which garnishment available--Persons and agencies subject to garnishment.
21-18-2      Plaintiff and defendant defined.
21-18-2.1      Earnings subject to garnishment.
21-18-3      Plaintiff's affidavit for garnishment--Contents.
21-18-3.1      Garnishment prohibited before judgment.
21-18-4      Affidavit covering more than one garnishee--Joint and several proceedings.
21-18-5      Repealed.
21-18-6      Garnishee summons annexed to affidavit--Form.
21-18-7      Service of summons, affidavit, and garnishment disclosure on garnishee.
21-18-8      Service of summons, affidavit, and garnishment disclosure when state is garnishee.
21-18-9      Fee paid to garnishee for expense of garnishment disclosure.
21-18-10      Service of garnishee summons and affidavit on defendant.
21-18-11      Time and manner of service of summons, affidavit, and garnishment disclosure--Return--Payment or retention of property by garnishee.
21-18-12      Liability of garnishee to plaintiff after service of summons.
21-18-13      Property held under void title included in garnishee's liability.
21-18-14      Repealed.
21-18-14.1      Continuing lien on wages--Caption of garnishee summons--Disclosure forms.
21-18-14.2      Repealed.
21-18-15      Judgment not rendered on garnishee's liability on negotiable instrument.
21-18-16      Judgment not rendered on foreign corporation's liability paid by negotiable instrument.
21-18-17      Judgment not rendered on carrier's liability for property in interstate commerce.
21-18-18      Judgment not rendered against officer for property collected on legal process.
21-18-19      Judgment not rendered on money accountable by public officer.
21-18-20 to 21-18-22. Repealed.
21-18-23      Partial release of garnished funds on application by defendant.
21-18-24      Subsequent proceedings against additional or discharged garnishees--Summons and trial in other counties.
21-18-25      Actions by principal defendant against garnishee prohibited during garnishment--Stay of pending proceedings.
21-18-26      Garnishee's affidavit denying liability--Form.
21-18-27      Garnishee's garnishment disclosure liability--Time of filing--Contents.
21-18-27.1      Service of garnishment disclosure form on garnishee--Contents of form.
21-18-28      Disclosure of liability when state is garnishee.
21-18-29      Disclosure by garnishee not made on information and belief--State excepted.
21-18-30      Garnishee's answer conclusive unless issue taken--Trial of issues.
21-18-31      Motion for order on answer of garnishee and defendant--Affidavit.
21-18-32      Payment to officer or clerk by garnishee--Discharge.
21-18-33      Retention of property disclosed by garnishee until expiration of garnishment, levy, release, or court order--Return of property to defendant.
21-18-34      Payment to clerk by state as garnishee--Exoneration of state.
21-18-35      Order to interplead adverse claimant disclosed by garnishee--Payment by garnishee and discharge--Service of notice on claimant.
21-18-36      Answer or defense by adverse claimant--Judgment on default.
21-18-37      Answer by other parties to affirmative claim set up by adverse claimant.


21-18-38      Default judgment for adverse claimant--Trial of issues on adverse claim.
21-18-39      Judgment against garnishee on failure to answer.
21-18-40      Judgment not entered against state as garnishee--Summons of state operating as assignment.
21-18-41      Order for payment by state as garnishee after judgment against principal defendant--Service and payment by state auditor.
21-18-42      Defense of garnishment proceedings by principal defendant--Grounds.
21-18-43      Defense of action by garnishee.
21-18-44      Garnishment proceedings deemed civil action--Procedural rules applicable.
21-18-45      Repealed.
21-18-46      Right to jury trial in garnishment proceedings.
21-18-47      Terms of judgment on garnishment proceedings--Orders for sale or disposition of property.
21-18-48      Judgment against garnishee as discharge of liability to defendant.
21-18-49      Costs awarded in garnishment action.
21-18-50      Storage and maintenance expenses allowed to garnishee--Possessory lien.
21-18-51      Maximum amount subject to garnishment.
21-18-52      Maximum garnishment allowed for support of any person.
21-18-53      Extent of debtor exemption.


     21-18-1.   Actions or small claims proceedings in which garnishment available--Persons and agencies subject to garnishment. In any action or small claims proceeding to recover damages founded upon contract, express or implied, or pursuant to judgment or decree, any creditor is entitled to proceed by garnishment in any court having jurisdiction of the subject of the action, against any person, as defined in § 15-7-1, including the state and any municipal or public corporation, and including any corporation organized or authorized to be organized by or under the laws of any state or of the United States, which has the power to sue or be sued who shall be indebted to or have any property, real or personal, in its possession or under its control belonging to such creditor's debtor, in the cases, upon the conditions, and in the manner prescribed in this chapter.

Source: SDC 1939, § 37.2801; SL 1939, ch 143; SL 1990, ch 157, § 1; SL 2001, ch 107, § 1.


     21-18-2.   Plaintiff and defendant defined. The term, plaintiff, is used in this chapter to include every judgment creditor, and the term, defendant, every judgment debtor.

Source: SL 1909, ch 156, § 1; RC 1919, § 2453; SL 1925, ch 182, § 1; SDC 1939, § 37.2801; SL 1939, ch 143.


     21-18-2.1.   Earnings subject to garnishment. The term, earnings, as used in this chapter means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments.

Source: SL 1972, ch 133, § 1; SL 2016, ch 116, § 1.


     21-18-3.   Plaintiff's affidavit for garnishment--Contents. In any action where garnishment is permitted, the plaintiff, or some person on the plaintiff's behalf, may make an affidavit stating that the plaintiff believes that a named person is indebted to, or has property, real or personal, in the person's possession or under the person's control belonging to the defendant, or either or any of the defendants in the action, naming him, and that such defendant has no property in this state other than property subject to garnishment under this chapter sufficient to satisfy the plaintiff's demand, and that the indebtedness or property mentioned in such affidavit is, to the best of the knowledge and belief of the person making such affidavit, not by law exempt, and the amount of the claim sued upon.

Source: SDC 1939, § 37.2802; SL 1939, ch 144; SL 1990, ch 157, § 2; SL 2016, ch 116, § 2.


     21-18-3.1.   Garnishment prohibited before judgment. Garnishment prior to obtaining final judgment in the principal action is prohibited.

Source: SL 1972, ch 133, § 2; SL 1990, ch 157, § 3; SL 2016, ch 116, § 3.


     21-18-4.   Affidavit covering more than one garnishee--Joint and several proceedings. Any number of garnishees may be embraced in the same affidavit, but if a joint liability is claimed against any, it shall be so stated, and the garnishee named as jointly liable shall be deemed jointly proceeded against; otherwise the several garnishees shall be deemed severally proceeded against.

Source: SL 1909, ch 156, § 2; RC 1919, § 2454; SDC 1939, § 37.2802; SL 1939, ch 144.


     21-18-5.   Repealed by SL 2016, ch 116, § 18.


     21-18-6.   Garnishee summons annexed to affidavit--Form. The plaintiff shall annex or subjoin to the garnishment affidavit a garnishee summons, which shall be in substantially the following form:

State of South Dakota,
County of __________ ss.

________ Court

     A. B., Plaintiff,    vs.
     C. D., Defendant, and
     E. F., Garnishee.
The State of South Dakota to the said Garnishee:
     You are hereby summoned pursuant to the annexed affidavit, as a garnishee of the defendant, C. D., and required within thirty days after the service of this summons upon you, exclusive of the day of service, to answer, according to law, whether you are indebted to or have in your possession or under your control any property, real or personal, belonging to such defendant, and to serve a copy of your answer on the undersigned at ________ in the county of ________; and in case of your failure so to do, you will be liable to further proceedings according to law; of which the said defendant will also take notice.
___________________________

Attorney for Plaintiff

P. O. Address ________ County, S. Dak.

Source: SL 1909, ch 156, § 3; RC 1919, § 2455; SDC 1939 & Supp 1960, § 37.2803.


     21-18-7.   Service of summons, affidavit, and garnishment disclosure on garnishee. The garnishee summons, affidavit, and garnishment disclosure shall be served on each of the several garnishees named, in the manner provided for service of a summons in an action, by certified mail, or by registered mail pursuant to § 21-18-11.

Source: SDC 1939 & Supp 1960, § 37.2805; SL 1966, ch 123; SL 1967, ch 150; SL 1988, ch 182, § 1; SL 2016, ch 116, § 4.


     21-18-8.   Service of summons, affidavit, and garnishment disclosure when state is garnishee. If the state is a garnishee, the garnishee summons, affidavit, and garnishment disclosure shall be served on the state auditor or his deputy only.

Source: SDC 1939 & Supp 1960, § 37.2805; SL 1966, ch 123; SL 1967, ch 150; SL 1988, ch 182, § 2.


     21-18-9.   Fee paid to garnishee for expense of garnishment disclosure. If a garnishee summons, affidavit, and garnishment disclosure is served, the garnishee shall be paid the sum of fifteen dollars to reimburse the garnishee for the expense of preparing the garnishment disclosure which sum shall be taxed as a part of plaintiff's costs. If the garnishee is not paid, the garnishment proceeding is void. The return of service of the garnishee summons shall include a statement that the sum was paid. The garnishment disclosure shall be returned to the plaintiff and filed with the court.

Source: SDC 1939, § 37.2804; SL 1959, ch 238; SL 1988, ch 182, § 3; SL 1998, ch 126, § 1; SL 2016, ch 116, § 5.


     21-18-10.   Service of garnishee summons and affidavit on defendant. The garnishee summons and affidavit shall also be served on the defendant to the action, either before or within thirty days after service on a garnishee, unless service of the summons in the action is made without the state or by publication, or by registered mail pursuant to § 21-18-11. If the defendant appears in the action by attorney, service may be made upon the attorney or upon the defendant.

Source: SL 1909, ch 156, § 5; RC 1919, § 2457; SL 1925, ch 182, § 2; SDC 1939 & Supp 1960, § 37.2805; SL 1966, ch 123; SL 1967, ch 150; SL 2001, ch 108, § 1; SL 2009, ch 109, § 2; SL 2016, ch 116, § 6.


     21-18-11.   Time and manner of service of summons, affidavit, and garnishment disclosure--Return--Payment or retention of property by garnishee. Such garnishee summons, affidavit, and garnishment disclosure may be served by certified mail, return receipt requested, or personally by the sheriff of the county where any garnishee or defendant may be found, or by any other person not a party to the action. The person subscribing such garnishee summons may, at his option, by an endorsement thereon fix a time for the service thereof, and the service shall then be made accordingly. The service shall be made and the same returned, with proof of the service, to the person whose name is subscribed thereto, with reasonable diligence. If, after reasonable diligence, service by certified mail or personal service by the sheriff is unsuccessful within the time period provided for in § 21-18-10, the plaintiff may file an affidavit stating that fact and may serve such garnishee summons, affidavit, and garnishment disclosure on the defendant by mailing a copy of the documents, together with a copy to the garnishee, to the defendant's last known address by registered mail. The garnishee may proceed by complying with either § 21-18-32 or 21-18-33 and, by such compliance, is exonerated from any further liability to any party to the garnishment.

Source: SDC 1939, § 37.2804; SL 1959, ch 238; SL 1988, ch 182, § 4; SL 2009, ch 109, § 1; SL 2016, ch 116, § 7.


     21-18-12.   Liability of garnishee to plaintiff after service of summons. From the time of the service of the summons upon the garnishee, the garnishee is liable to the plaintiff to the amount of the property, money, credits, and effects in the garnishee's possession or under the garnishee's control belonging to the defendant, or in which the garnishee is interested, to the extent of the garnishee's right or interest therein, and of all debts due to the defendant, except such as may be by law exempt from execution.

Source: SL 1909, ch 156, § 17; RC 1919, § 2470; SDC 1939 & Supp 1960, § 37.2807; SL 2016, ch 116, § 8.


     21-18-13.   Property held under void title included in garnishee's liability. Any property, moneys, credits, and effects held by a conveyance or title void as to the creditors of the defendant shall be embraced in the liability provided by § 21-18-12.

Source: SL 1909, ch 156, § 17; RC 1919, § 2470; SDC 1939 & Supp 1960, § 37.2807.


     21-18-14.   Repealed by SL 2016, ch 116, § 19.


     21-18-14.1.   Continuing lien on wages--Caption of garnishee summons--Disclosure forms. The plaintiff may obtain a one hundred twenty-day continuing lien on wages by garnishment. If a lien is to be obtained, the plaintiff shall mark on the caption of the garnishee summons "continuing lien" and all disclosure forms shall include the following:
     Garnishee will continue to withhold the nonexempt portion of the defendant's earnings as they accrue through the last payroll period ending on or before one hundred twenty days from the effective date of the garnishee summons, or until the sum held equals the amount stated in the garnishee summons, or until the employment relationship terminates, whichever first occurs.
     At the time of the expected termination of the lien, the plaintiff shall mail to garnishee an additional copy of the disclosure form upon which the garnishee within ten days shall make further disclosure.

Source: SL 1988, ch 182, § 7; SL 2010, ch 111, § 1; SL 2016, ch 116, § 9.


     21-18-14.2.   Repealed by SL 1990, ch 157, § 4.


     21-18-15.   Judgment not rendered on garnishee's liability on negotiable instrument. No judgment shall be rendered upon a liability of the garnishee arising by reason of his having drawn, accepted, made, endorsed, or guaranteed any negotiable bill, draft, note, or other security.

Source: SL 1909, ch 156, § 18; RC 1919, § 2471; SL 1925, ch 183; SDC 1939 & Supp 1960, § 37.2819 (1).


     21-18-16.   Judgment not rendered on foreign corporation's liability paid by negotiable instrument. No judgment shall be rendered upon a liability of the garnishee arising by reason of any money or indebtedness due and owing to the principal defendant from a foreign corporation, which such corporation shall have paid, or for which it shall have issued its negotiable check, draft, or bill of exchange, prior to actual notice to said corporation of service of summons in garnishment.

Source: SL 1925, ch 183; SDC 1939 & Supp 1960, § 37.2819 (5).


     21-18-17.   Judgment not rendered on carrier's liability for property in interstate commerce. No judgment shall be rendered upon a liability of the garnishee arising by reason of any property in the possession of any common carrier when such property was at the time of service of the garnishee summons and affidavit actually in transit in interstate commerce, provided that such transit in interstate commerce shall not be deemed to have commenced until property has actually left the initial billing station.

Source: SL 1925, ch 183; SDC 1939 & Supp 1960, § 37.2819 (6).


     21-18-18.   Judgment not rendered against officer for property collected on legal process. No judgment shall be rendered upon a liability of the garnishee arising by reason of any money or other thing received or collected by him as sheriff, or other officer, by force of an execution or other legal process in favor of the defendant.

Source: SL 1909, ch 156, § 18; RC 1919, § 2471; SL 1925, ch 183; SDC 1939 & Supp 1960, § 37.2819 (2).


     21-18-19.   Judgment not rendered on money accountable by public officer. No judgment shall be rendered upon a liability of the garnishee arising by reason of any money in his hands as a public officer and for which he is accountable to the defendant merely as such officer.

Source: SL 1909, ch 156, § 18; RC 1919, § 2471; SL 1925, ch 183; SDC 1939 & Supp 1960, § 37.2819 (3).


     21-18-20 to 21-18-22.   Repealed by SL 2016, ch 116, §§ 20 to 22.


     21-18-23.   Partial release of garnished funds on application by defendant. The principal defendant may upon order to show cause, apply to the court in which the garnishment proceedings are pending for an order releasing such part of the funds as the court shall direct without waiting for the disposition of the action on its merits, and upon receipt of such certified copy of the order the garnishee defendant may pay over the amount authorized thereby without the necessity of waiting for the time of appeal to expire.

Source: SL 1927, ch 135, § 4; SDC 1939 & Supp 1960, § 37.2809.


     21-18-24.   Subsequent proceedings against additional or discharged garnishees--Summons and trial in other counties. The plaintiff may in like manner subsequently proceed within the period limited against other garnishees, or against the same garnishees after they shall have once been discharged, upon a new affidavit, if he shall have reason to believe they have subsequently become liable; and he may summon garnishees resident in other counties than that in which the action is pending; but if an issue for trial shall be joined between the plaintiff and such garnishee, the court may on motion change the place of trial of such issue to the county of the garnishee's residence.

Source: SL 1909, ch 156, § 6; RC 1919, § 2458; SDC 1939 & Supp 1960, § 37.2810.


     21-18-25.   Actions by principal defendant against garnishee prohibited during garnishment--Stay of pending proceedings. No action shall be commenced by the defendant or his assignee against a garnishee upon any claim or demand liable to garnishment, or to recover any property garnished, nor execution be issued upon a judgment in favor of the defendant against such garnishee subsequent to the service of the garnishee summons upon him, until the termination of the garnishee action; and, if an action shall have been commenced or an execution issued, it shall be stayed by the court or a judge thereof upon the garnishee's application, except that upon cause shown, the court or judge may by order permit the commencement of such an action, or the issuing of an execution, or the further prosecution of one stayed.

Source: SL 1909, ch 156, § 19; RC 1919, § 2472; SDC 1939 & Supp 1960, § 37.2822.


     21-18-26.   Garnishee's affidavit denying liability--Form. Within thirty days from the service of such garnishee summons the garnishee may, if the truth warrants, file with the clerk of the court in which the action is pending, and serve a copy thereof upon the plaintiff, his affidavit in substantially the following form:

State of South Dakota,
County of __________ ss.

________ Court

     A. B., Plaintiff,    vs.
     C. D., Defendant,
     E. F., Garnishee.
     E. F., being duly sworn, says that on the ____ day of ________, 20____, he was served with a garnishee summons in the above entitled action; that he was then in no manner and upon no account whatever indebted or under liability to the defendant (naming him), and that he then had in his possession or under his control, no real estate and no personal property, effects, or credits of any description whatever, belonging to said defendant or in which he had any interest; and is in no manner liable as garnishee in this action.
___________________________

     Subscribed and sworn to before me this ____ day of ________, 20____.

Source: SL 1909, ch 156, § 8; RC 1919, § 2460; Supreme Court Rule 588, 1939; SDC 1939 & Supp 1960, § 37.2811.


     21-18-27.   Garnishee's garnishment disclosure liability--Time of filing--Contents. Unless the garnishee makes the affidavit provided for in § 21-18-26, he shall within thirty days from the service of the garnishee summons file and serve in like manner a garnishment disclosure in which he shall state:
             (1)      Whether he was at the time of service of the garnishee summons indebted or under any liability to the defendant named in the garnishee summons, in any manner, upon any account, specifying, if indebted or liable, the amount, the interest thereon, the manner in which evidenced, when payable, whether an absolute or contingent liability, and all the facts and circumstances necessary to a complete understanding of such indebtedness or liability. If the garnishee is in doubt respecting any such liability or indebtedness, he may set forth all the facts and circumstances concerning the liability or indebtedness and submit the question to the court;
             (2)      Whether he held at the time aforesaid the title or possession of any real estate, or any interest in land of any description, or of any personal property, effects, or credits, or any instruments or papers relating to such, belonging to the defendant or in which he was in any way interested. If he admits any such or is in any doubt respecting the same, he shall set forth the description of such property and all the facts and circumstances concerning the same, and the title, interest, or claim of the defendant in or to the same.
     If the garnishee claims any setoff or defense to any indebtedness or liability or any lien on or claim to the property, he shall set forth the facts and circumstances thereof fully.
     The garnishee may state any claim of exemption from execution on the part of the defendant, or other objection known to him against the right of plaintiff to apply upon his demands the indebtedness or property disclosed.
     If the garnishee discloses any indebtedness, or the possession of any property to which the defendant, and any other person as well, has a claim, he shall provide the names and residences of such claimants and so far as known the nature of their claims.

Source: SDC 1939 & Supp 1960, § 37.2812; SL 1988, ch 182, § 5.


     21-18-27.1.   Service of garnishment disclosure form on garnishee--Contents of form. A garnishment disclosure form shall be served upon the garnishee. The disclosure shall be substantially in the following form:

State of South Dakota      )                In _______________ Court
     )      ss.          
County of __________      )                __________
__________          
Plaintiff                    
vs.                    
__________          
Defendant                    
and                Garnishment Disclosure     
__________          
Garnishee                    

     I am the ______________ of the garnishee and duly authorized to disclose for the garnishee.
     On the ______ day of ______________, 20____, the time of service of garnishee summons on the garnishee, there was due and owing the defendant from the garnishee the following:
             1.      Earnings. For the purposes of garnishment, "earnings" means compensation payable for personal service whether called wages, salary, commission, bonus or otherwise, and includes periodic payments. "Earnings" does not include social security benefits or veterans' disability pension benefits, except when the benefits are subject to garnishment to enforce any order for the support of a dependent child. "Earnings" includes military retirement pay. "Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of amounts required by law to be withheld (such as FICA, Medicare, and income tax withholding). If the garnishee summons was served upon you at a time when earnings from a prior completed pay period were owing but not paid, complete the following disclosure for earnings from both the past pay period and the current pay period.
             a.      Enter on the line below the amount of disposable earnings earned or to be earned by the defendant within the defendant's pay periods which may be subject to garnishment.
             ___________________________________________________
             b.      Enter on the line below forty times the hourly federal minimum wage (or state minimum wage, if greater) times the number of workweeks within the defendant's pay periods which may be subject to garnishment plus twenty-five dollars per week for each dependent family member residing with the garnishment debtor other than the garnishment debtor himself or herself. When pay periods consist of other than a whole number of workweeks, each day of a pay period in excess of the number of completed workweeks shall be counted as a fraction of a workweek equal to the number of workdays divided by the number of workdays in the normal workweek.
             ___________________________________________________
             c.      Enter on the line below the difference obtained (never less than zero) when line b is subtracted from line a.
             ___________________________________________________
             d.      Enter on the line below twenty percent (1/5) of line a.
             ___________________________________________________
             e.      Enter on the line below the lesser of line c and line d.
             ___________________________________________________
             2.      Money. Enter on the line below any amounts due and owing defendant, except earnings, from the garnishee.
             ___________________________________________________
             3.      Property. Describe on the line below any personal property, instruments or papers belonging to the defendant and in the possession of the garnishee.
             ___________________________________________________
             4.      Setoff. Enter on the line below the amount of any setoff, defense, lien or claim which the garnishee claims against the amount set forth on lines 1(e), 2 and 3. Allege the facts by which the setoff, defense, lien or claim is claimed. (Any indebtedness to a garnishee-employer incurred by the judgment debtor within ten days prior to the receipt of the first garnishment on a debt is void and should be disregarded.)
             ___________________________________________________
             5.      Adverse Interest. Enter on the line below any amounts claimed by other persons by reason of ownership or interest in the defendant's property (such as child support, federal wage garnishments, and other creditor garnishments). State the names and addresses of the persons and the nature of their claim, if known. (Any assignment of wages made by the defendant within ten days prior to the receipt of the first garnishment on a debt is void and should be disregarded.)
             ___________________________________________________
             6.      Enter on the line below the total of lines 4 and 5.
             ___________________________________________________
             7.      Enter on the line below the difference obtained (never less than zero) when line 6 is subtracted from the sum of line 1(e), 2 and 3.
             ___________________________________________________
             8.      Enter on the line below one hundred five percent of the amount set forth in the Affidavit of Garnishment.
             ___________________________________________________
             9.      Enter on the line below the lesser of line 7 and line 8. As garnishee, you are hereby instructed to retain this amount only if it is $25.00 or more. The balance shall be remitted to the debtor in a timely manner.
             __________________________________
Signature ______________________________________________________
Authorized Representative of Garnishee
______________________________________________________
Title
Subscribed and sworn to before me this ________ day of ______________, 20____.
________________________
Notary Public

Source: SL 1988, ch 182, § 6; SL 1991, ch 24, § 7; SL 2016, ch 116, § 10; SL 2018, ch 129, § 1.


     21-18-28.   Disclosure of liability when state is garnishee. In all cases in which the State of South Dakota is made garnishee defendant, it is not necessary for the state to file a formal disclosure, but it is a sufficient disclosure for the state auditor to notify the plaintiff or the plaintiff's attorney stating what amount, if any, is due to the principal defendant at the time of the service of summons in garnishment upon the state auditor. It is the duty of the state auditor to notify the plaintiff or the plaintiff's attorney within the time for making a return in garnishment and the state auditor shall mail a copy of the notice to the clerk of courts of the county in which the action was pending. No taking of issue is permitted on any return or disclosure made by the state auditor.

Source: SL 1927, ch 135, § 2; SDC 1939 & Supp 1960, § 37.2813; SL 2016, ch 116, § 11.


     21-18-29.   Disclosure by garnishee not made on information and belief--State excepted. No answer or disclosure in garnishment except by the State of South Dakota shall be made upon information and belief. The answer or disclosure of the garnishee may be made by an agent or attorney having knowledge of the facts.

Source: SL 1909, ch 156, § 13; RC 1919, § 2465; SL 1923, ch 149; Supreme Court Rule 625, 1939; SDC 1939 & Supp 1960, § 37.2814.


     21-18-30.   Garnishee's answer conclusive unless issue taken--Trial of issues. The answer of the garnishee shall in all cases be conclusive of the truth of the facts therein stated, and if it denies liability the proceeding against such garnishee shall be deemed discontinued, unless the plaintiff shall within thirty days serve upon the garnishee a notice in writing that he elects to take issue on his answer. In such case the issue shall stand for trial as a civil action in which the affidavit on the part of the plaintiff shall be deemed a complaint and the garnishee's affidavit the answer thereto. Nothing herein contained, however, shall permit raising of any issue when the state is garnishee defendant.

Source: SL 1909, ch 156, § 12; RC 1919, § 2464; SL 1927, ch 135, § 2; SDC 1939 & Supp 1960, § 37.2815.


     21-18-31.   Motion for order on answer of garnishee and defendant--Affidavit. The plaintiff may in all cases move the court upon the answer of the garnishee and of the defendant, if the defendant shall also answer, for such order as the plaintiff is entitled to thereon. Such order is not a bar beyond the facts stated in such answers. The plaintiff shall attach an affidavit to the motion setting forth:
             (1)      Amount that is owed on judgment and accrued interest;
             (2)      Additional costs claimed;
             (3)      Credit for any payments made;
             (4)      Net balance due;
             (5)      Specific request for payment of the garnished amount sufficient to satisfy judgment; and
             (6)      Any surplus shall be returned to defendant.

Source: SL 1909, ch 156, § 12; RC 1919, § 2464; SDC 1939 & Supp 1960, § 37.2815; SL 2009, ch 110, § 1.


     21-18-32.   Payment to officer or clerk by garnishee--Discharge. In case the answer of the garnishee shall show indebtedness to the defendant, he may pay the amount thereof to the officer having a levy, or to the clerk of the court; and the officer to whom such payment is made shall give him a receipt specifying the facts and such receipt shall be a complete discharge of all liability to any party for the amount so paid.

Source: SDC 1939 & Supp 1960, § 37.2816; SL 1990, ch 157, § 6.


     21-18-33.   Retention of property disclosed by garnishee until expiration of garnishment, levy, release, or court order--Return of property to defendant. If the answer of the garnishee discloses any money, credits, or other property, real or personal, in the possession or under the control of the garnishee, the garnishee shall retain money, credits, or property in the garnishee's possession until the expiration of one hundred eighty days from the date of service of the garnishee summons upon the garnishee; the plaintiff causes a copy of a levy to be served upon the garnishee; the defendant authorizes release to the plaintiff; or the order of the court thereon. If, within one hundred eighty days, a levy has not been served upon the garnishee, no agreement has been made for payment or no order of the court for payment, the garnishment shall end, and any property, money, or credits held by the garnishee shall be returned to the defendant if the defendant is otherwise entitled to the money, credits, or property.

Source: SDC 1939 & Supp 1960, § 37.2816; SL 1988, ch 182, § 9.


     21-18-34.   Payment to clerk by state as garnishee--Exoneration of state. The state auditor may, in the state auditor's discretion, at any time, pay to the clerk of courts of the county in which the action is brought any moneys that may be due to the principal defendant or the part thereof as was determined or due at the time of the service of the summons in garnishment upon the state. Upon the payment of any money to the clerk of courts, or upon notification by the state auditor to the plaintiff or the plaintiff's attorney of the amount, if any, due the defendant, the state auditor or any other state official and the state is absolutely exonerated from all liability.

Source: SL 1927, ch 135, § 5; SDC 1939 & Supp 1960, § 37.2816; SL 2016, ch 116, § 12.


     21-18-35.   Order to interplead adverse claimant disclosed by garnishee--Payment by garnishee and discharge--Service of notice on claimant. When the answer of the garnishee shall disclose that any other person than the defendant claims the indebtedness or property in his hands, and the name and residence of such claimant, the court may on motion order that such claimant be made a defendant to the garnishee action; and that notice thereof, setting forth the facts, with a copy of such order, in such form as the court shall direct, be served upon him, and that after such service shall have been made, the garnishee may pay or deliver to the officer or the clerk such indebtedness or property, and have a receipt therefor, which shall be a complete discharge from all liability to any party for the amount so paid or property so delivered. Such notice shall be served in the manner required for service of a summons in a civil action, and may be made without the state or by publication thereof if the order shall so direct.

Source: SL 1909, ch 156, § 16; RC 1919, § 2469; SDC 1939 & Supp 1960, § 37.2821.


     21-18-36.   Answer or defense by adverse claimant--Judgment on default. Upon service being made pursuant to § 21-18-35 such claimant shall be deemed a defendant in the garnishee action and within thirty days shall answer, setting forth his claim or any defense which the garnishee might have made. In case of default, judgment may be rendered which shall conclude any claim upon the part of such defendant.

Source: SL 1909, ch 156, § 16; RC 1919, § 2469; SDC 1939 & Supp 1960, § 37.2821.


     21-18-37.   Answer by other parties to affirmative claim set up by adverse claimant. When an adverse claimant is made a garnishee defendant by notice as provided in this chapter and sets up an affirmative claim to the fund or property involved, any of the other parties to the garnishment may answer the same within thirty days after service thereof.

Source: Supreme Court Rule 590, 1939; SDC 1939 & Supp 1960, § 37.2823; SL 2016, ch 116, § 13.


     21-18-38.   Default judgment for adverse claimant--Trial of issues on adverse claim. If no answer is made pursuant to § 21-18-37, the claimant shall be entitled to default judgment as in ordinary cases of failure to answer.
     If issue be raised upon such claim, the court shall determine the order of trial and procedure at the commencement of the trial or upon motion of any party prior thereto.

Source: SL 1909, ch 156, § 15; RC 1919, § 2468; SDC 1939 & Supp 1960, § 37.2824.


     21-18-39.   Judgment against garnishee on failure to answer. If any garnishee, except the state, is summoned and fails to answer as required by this chapter, the court may render judgment against the garnishee for the amount of any judgment, including costs, which the plaintiff has recovered in the principal action, together with the costs of the garnishee action.

Source: SL 1909, ch 156, § 10; RC 1919, § 2462; SDC 1939 & Supp 1960, § 37.2817; SL 2016, ch 116, § 14.


     21-18-40.   Judgment not entered against state as garnishee--Summons of state operating as assignment. No judgment shall be entered against the State of South Dakota, nor shall any actual liability be incurred by the state in any garnishment proceeding. Any judgment entered against the principal defendant when the state is garnishee shall be paid only out of moneys due such principal defendant at the time of the service of the summons in garnishment and service of such summons on the state shall be of the same force and effect only as an assignment of the sum claimed or as much thereof as may be due the defendant from the state.

Source: SL 1927, ch 135, § 3; SDC 1939 & Supp 1960, § 37.2817.


     21-18-41.   Order for payment by state as garnishee after judgment against principal defendant--Service and payment by state auditor. In all cases where judgment is obtained against the principal defendant and if in the opinion of the court in which the action is pending there are funds under the control of the state treasurer subject to garnishment, the court shall direct in its order or judgment that the state auditor shall issue his warrant for such part of the moneys in the state treasury which may be affected by said garnishment proceedings and the state auditor is hereby authorized upon the receipt of a certified copy of such judgment to issue his warrant for the amount specified in the judgment or such as may have been due to the principal defendant at the time of the service of the summons in garnishment. A certified copy of such judgment and order shall be served upon the principal defendant and the state auditor shall be authorized to issue his warrant as herein specified after ten days after the service of such order and the state auditor shall be thereby fully released from all liability on account of any irregularity or invalidity of the judgment against the principal defendant.

Source: SL 1927, ch 135, § 5; SDC 1939 & Supp 1960, § 37.2818.


     21-18-42.   Defense of garnishment proceedings by principal defendant--Grounds. The principal defendant may in all cases by answer duly verified, to be served within thirty days from the service of the garnishee summons on him, defend the proceeding against any garnishee upon the ground that the indebtedness of the garnishee, or any property held by him, is exempt from execution against such defendant or for any other reason is not liable to garnishment; or upon any ground upon which a garnishee might defend the same; and may participate in the trial of any issue between the plaintiff and garnishee for the protection of his interests.

Source: SL 1909, ch 156, § 14; RC 1919, § 2466; SDC 1939 & Supp 1960, § 37.2820.


     21-18-43.   Defense of action by garnishee. The garnishee may defend the defendant if the latter does not, but is under no obligation so to do.

Source: SL 1909, ch 156, § 14; RC 1919, § 2466; SDC 1939 & Supp 1960, § 37.2820; SL 2016, ch 116, § 15.


     21-18-44.   Garnishment proceedings deemed civil action--Procedural rules applicable. The proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant as parties defendant, and all provisions of law relating to proceedings in civil actions at issue, including examination of the parties, amendments, and relief from default or proceedings taken and appeals and all provisions for enforcing judgments, shall be applicable thereto.

Source: SL 1909, ch 156, § 15; RC 1919, § 2468; Supreme Court Rule 590, 1939; SDC 1939 & Supp 1960, § 37.2823.


     21-18-45.   Repealed by SL 2016, ch 116, § 23.


     21-18-46.   Right to jury trial in garnishment proceedings. Any party to an issue in the garnishment proceeding shall be entitled to a jury trial in all cases where jury trials are allowed in ordinary civil actions.

Source: SDC 1939 & Supp 1960, § 37.2824.


     21-18-47.   Terms of judgment on garnishment proceedings--Orders for sale or disposition of property. The court shall render such judgment in all cases as shall be just to all the parties, and properly protect their respective interests, and may adjudge the recovery of an indebtedness, the conveyance, transfer, or delivery to the sheriff, or any officer appointed by the judgment, of any real estate or personal property disclosed or found to be liable to be applied to the plaintiff's demand, or by the judgment pass the title thereto; and may therein or by its order, when proper, direct the manner of making sale and disposing of the proceeds thereof, or of any money or other thing paid over or delivered to the clerk or officer.

Source: SL 1909, ch 156, § 15; RC 1919, § 2468; SDC 1939 & Supp 1960, § 37.2825.


     21-18-48.   Judgment against garnishee as discharge of liability to defendant. The judgment against a garnishee shall acquit and discharge him from all demands by the defendant, or his representative, for all money, goods, effects, or credits paid, delivered, or accounted for by the garnishee by force of such judgment.

Source: SL 1909, ch 156, § 15; RC 1919, § 2468; SDC 1939 & Supp 1960, § 37.2825.


     21-18-49.   Costs awarded in garnishment action. In case of the trial of an issue between the plaintiff and any garnishee, costs are awarded to the plaintiff and against the garnishee in addition to the garnishee's liability if the plaintiff recovers more than the garnishee admitted by the garnishee's answer; and if the plaintiff does not, the garnishee shall recover costs of the plaintiff. In all other cases under this chapter not expressly provided for, the court may award costs in favor of or against any party in its discretion. When no issue is tried the costs of the garnishee action shall be taxed for the plaintiff in the garnishment action.

Source: SL 1909, ch 156, § 21; RC 1919, § 2474; SDC 1939, § 37.2826; SL 1947, ch 174; SL 2016, ch 116, § 16.


     21-18-50.   Storage and maintenance expenses allowed to garnishee--Possessory lien. In all cases the garnishee shall be allowed the reasonable cost of the warehousing, storing, care, or keep of the property garnished in the hands of the garnishee. And the garnishee shall have a possessory lien on the property garnished until the same is paid.

Source: SDC 1939, § 37.2826 as added by SL 1947, ch 174.


     21-18-51.   Maximum amount subject to garnishment. The maximum part of the aggregate disposable earnings of a wage earner for any workweek which is subject to garnishment may not exceed the lesser of:
             (1)      Twenty percent of disposable earnings for that week;
             (2)      The amount by which disposable earnings for that week exceed forty times the federal minimum hourly wage prescribed by 29 U.S.C. 206(a)(1) as amended and in effect on July 24, 2009, or applicable state minimum wage if greater, or any equivalent multiple thereof prescribed by regulation by the secretary of labor and regulation in case of earnings for any pay period other than a week, in effect at the time the earnings are payable less twenty-five dollars per week for each dependent family member residing with the garnishment debtor other than the garnishment debtor himself or herself.
     The restrictions of subdivisions (1) and (2) do not apply in the case of any order of any court for the support of any person or any order of any court of bankruptcy under Title 11 of the United States Code.

Source: SL 1989, ch 189, § 1; SL 1990, ch 157, § 10; SL 1991, ch 366, § 2; SL 1993, ch 171; SL 1997, ch 124, § 1; SL 1998, ch 127, § 1; SL 2009, ch 111, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2016, ch 116, § 17.


     21-18-52.   Maximum garnishment allowed for support of any person. The maximum part of the aggregate disposable earnings of an individual for any work week which is subject to garnishment to enforce any order for the support of any person may not exceed:
             (1)      If the individual is supporting a spouse or dependent child other than a spouse or child with respect to whose support the order is used, fifty percent of the individual's disposable earnings for that week; and
             (2)      If the individual is not supporting a spouse or dependent child other than a spouse or child with respect to whose support the order is used, sixty percent of the individual's disposable earnings for that week;
except that with respect to the disposable earnings of any individual for any workweek, the fifty percent specified in subdivision (1) shall be deemed to be fifty-five percent and the sixty percent specified in subdivision (2) shall be deemed to be sixty-five percent, if and to the extent that the earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve week period which ends with the beginning of the workweek.
     No court of this state may make, execute, or enforce any order or process in violation of this section.

Source: SL 1989, ch 189, § 2.


     21-18-53.   Extent of debtor exemption. The earnings of a debtor are exempt from process or levy only to the extent provided in §§ 21-18-51 and 21-18-52.

Source: SL 1990, ch 157, § 5.


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