15-26A-7. Orders and determinations of trial court subject to review on appeal from judgment.

On appeal from a judgment the Supreme Court may review any order, ruling, or determination of the trial court, including an order denying a new trial, and whether any such order, ruling, or determination is made before or after judgment involving the merits and necessarily affecting the judgment and appearing upon the record.

Source: SDC 1939 & Supp 1960, § 33.0710; SDCL, § 15-26-19.

15-26A-8. New trial motion not required for review on insufficiency of evidence or error of law.

Such of the matters specified in subdivisions 15-6-59(a)(6) and (7) as may have been timely presented to the trial court by motion for directed verdict, request for findings, or other apt motion, offer, or objection may be reviewed on appeal from the judgment without necessity for an application for new trial.

Source: SDC 1939 & Supp 1960, § 33.0710; SDCL, § 15-26-20; SL 1978, ch 178, § 569.

15-26A-9. Matters subject to review on appeal from order denying new trial.

When reviewing an order denying a new trial, the Supreme Court may review all matters properly and timely presented to the court by the application for a new trial.

Source: SDC 1939 & Supp 1960, § 33.0710; SDCL, § 15-26-21.

15-26A-10. Scope of review on appeal from order.

When the appeal is from any order subject to appeal, the Supreme Court may review all matters appearing on the record relevant to the question of whether the order appealed from is erroneous.

Source: SDC 1939 & Supp 1960, § 33.0710; SDCL, § 15-26-22.

15-26A-11. Combining of appeals in one notice and one undertaking.

The appellant may unite in one notice, and under one undertaking of the amount required for a single appeal, all appeals from one or more judgments and from one or more orders made in or pertaining to the same action or proceeding, subject however to all limitations of time for taking appeals.

Source: SDC 1939 & Supp 1960, § 33.0703; SDCL, § 15-26-4.

15-26A-12. Actions available to Supreme Court on decision.

By its judgment, the Supreme Court may reverse, affirm, or modify the judgment or order appealed from, and may either direct a new trial or the entry by the trial court of such judgment as the Supreme Court deems is required under the record.

Source: SDC 1939 & Supp 1960, § 33.0710; SDCL, § 15-26-26.

15-26A-13. Petition for permission to take discretionary appeal.

An appeal from an intermediate order made before trial as prescribed by subdivision 15-26A-3(6) may be sought by filing a petition for permission to appeal, together with proof of service thereof upon all other parties to the action in circuit court, with the clerk of the Supreme Court within ten days after notice of entry of such order. When a petition is forwarded to the clerk for filing by mail it shall be accompanied by an affidavit of mailing or certificate of service of mailing and shall be deemed to be filed as of the date of mailing.

The petition shall be filed with the clerk of the Supreme Court, together with the required statutory filing fees unless exempt by law.

Source: Supreme Court Rule 79-1, Rule 5 (1); SDCL Supp, § 15-26A-5; Supreme Court Rule 81-6; SL 2011, ch 245 (Supreme Court Rule 11-02), eff. July 1, 2011; SL 2023, ch 220 (Supreme Court Rule 23-03), eff. Apr. 1, 2023.

15-26A-14. Contents of petition for appeal.

The petition shall be captioned in the Supreme Court and entitled as in the circuit court. It shall contain:

(1)    A statement of facts necessary to understand the question presented;

(2)    A statement of the question itself;

(3)    The relief sought;

(4)    A concise statement, without argument, of law in support of the request;

(5)    The reasons why the appeal should be allowed;

(6)    Other papers and exhibits petitioner deems relevant and material; and

(7)    All papers must conform to typeface specified in § 15-26A-66. Except by the Court's permission, a petition or response may not exceed 10 pages, exclusive of the accompanying documents required by subdivisions 15-26A-15(1), (2) and (3).

Source: Supreme Court Rule 79-1, Rule 5 (2); SDCL Supp, § 15-26A-6; Supreme Court Rule 80-3; Supreme Court Rule 82-14; SL 2005, ch 292 (Supreme Court Rule 05-06), effective Feb. 25, 2005; SL 2013, ch 262 (Supreme Court Rule 13-01), eff. Feb. 14, 2013.

15-26A-15. Attachments to petition for appeal.

Attachments to the petition shall include:

(1)    A conformed copy of the order sought to be reviewed;

(2)    All findings of fact, conclusions of law, or memorandum opinions relating thereto; and

(3)    The notice of entry of the order sought to be appealed.

Source: Supreme Court Rule 79-1, Rule 5 (2) (e); SDCL Supp, § 15-26A-7; Supreme Court Rule 82-15; SL 2005, ch 293 (Supreme Court Rule 05-07), effective Feb. 25, 2005.

15-26A-16. Response to petition.

Within seven days after the service of the petition, any party to the action may serve and file a response thereto. The response shall be filed with the clerk of the Supreme Court. When a response to a petition is forwarded to the clerk for filing by mail it shall be accompanied by an affidavit of mailing or certificate of service of mailing and shall be deemed to be filed as of the date of mailing.

The petition and any response shall be submitted without oral argument unless otherwise ordered.

Source: Supreme Court Rule 79-1, Rule 5 (3); SDCL Supp, § 15-26A-8; SL 2011, ch 246 (Supreme Court Rule 11-03), eff. July 1, 2011; SL 2023, ch 221 (Supreme Court Rule 23-04), eff. Apr. 1, 2023.

15-26A-17. Grant of permission to appeal--Procedure.

If permission to appeal is granted, the clerk of the Supreme Court shall serve notice of the order granting permission to appeal by mailing a copy of the order to the clerk of the trial court and the counsel of record of each party to the action. The appellate petitioner shall then file the bond for costs as required by § 15-26A-23 and shall thereafter proceed as though the appeal had been instituted by service of a written notice of appeal. In the order granting the appeal, the court shall fix the time for the filing of the bond, briefs and the transmitting of the record if necessary.

Source: Supreme Court Rule 79-1, Rule 5 (4); SDCL Supp, § 15-26A-9.

15-26A-18. Noncompliance with requirements and inaccurate statements as grounds for denial of appeal from intermediate order.

In any case where it appears to the Supreme Court that a petitioner has willfully failed to comply with the requirements of §§ 15-26A-13 to 15-26A-17, inclusive, as to the form and contents of a petition for allowance of an appeal from an intermediate order, or has intentionally made an unfair or inaccurate statement in such petition, this shall constitute sufficient grounds for denial of the petition.

Source: SDC 1939 & Supp 1960, § 33.0707; SDCL, § 15-26-13; Supreme Court Rule 80-1.

15-26A-19. Stay of further proceedings pending petition for appeal from intermediate order--Security required--Filing of order granting stay.

Upon the filing of any petition referred to in § 15-26A-13 with the clerk of the Supreme Court, the petitioner may make application to the court for a stay of proceedings pending action of the court on such petition. The court shall grant such stay only when satisfied that the ends of justice require it, and upon such security as the court may direct to safeguard any other party against damage by reason of delay. If the court makes an order granting such stay, a certified copy thereof must be filed with the clerk of the court from which the appeal is sought. The filing of the petition shall not operate to stay proceedings except as provided in this section.

Source: SDC 1939 & Supp 1960, § 33.0705; SDCL, § 15-26-15; Supreme Court Rule 80-1.

15-26A-20. Certification of record on petition for appeal from intermediate order.

The Supreme Court, for purposes of determination of a petition for allowance of an appeal from an intermediate order, may direct the certification to the court of any portion of the record in the court below.

Source: SDC 1939 & Supp 1960, § 33.0706; SDCL, § 15-26-17.

15-26A-21. Terms imposed on unreasonable and vexatious petition for appeal from intermediate order.

In any case where the Supreme Court is satisfied that a petition for allowance of an appeal from an intermediate order has been filed without reasonable grounds, and that the filing of the same may be fairly considered vexatious, the court may impose upon the petitioner such terms as the court deems proper.

Source: SDC 1939 & Supp 1960, § 33.0707; SDCL, § 15-26-14.

15-26A-22. Appellee's right to obtain review.

An appellee may obtain review of a judgment or order entered in the same action which may adversely affect him by filing a notice of review and section B of the docketing statement required by subdivision 15-26A-4(2) with the clerk of the Supreme Court within twenty days after the service of the notice of appeal. The clerk of the Supreme Court shall not accept for filing such notice of review unless accompanied by a docketing statement and proof of service of such notice and docketing statement on all other parties. The notice of review shall specify the judgment or order to be reviewed.

Source: Supreme Court Rule 79-1, Rule 6; SDCL Supp, § 15-26A-10; SL 1986, ch 446 (Supreme Court Rule 86-11).

15-26A-23. Form and amount of bond or deposit for costs.

Unless an appellant is exempted by law, or has filed a supersedeas bond or other undertaking which includes security for the payment of costs on appeal, a bond for costs on appeal or equivalent security shall be filed by the appellant with the clerk of the circuit court within the time provided by § 15-26A-6; but security shall not be required of an appellant who is not subject to costs. The bond or equivalent security shall be in the sum or value of five hundred dollars. A bond for costs shall have sufficient surety and shall be conditioned to secure the payment of costs if the appeal is dismissed, the judgment or order affirmed, or of such costs as the Supreme Court may direct if the judgment or order is modified or affirmed in part. After a bond for costs is filed, appellee may except to the form of the bond or to the sufficiency of the surety.

Source: Supreme Court Rule 79-1, Rule 7 (1); SDCL Supp, § 15-26A-11.

15-26A-24. Waiver of bond or deposit--Affidavit of indigency.

The bond for costs, or deposit of money in lieu thereof, shall be deemed waived if appellant shall file with the clerk of the circuit court, within the time provided by § 15-26A-6, the written consent of each appellee, or an affidavit of indigency. The verity of such affidavit may be contested in the same manner as provided in § 15-26A-35 for exception to personal surety.

Source: Supreme Court Rule 79-1, Rule 7 (2); SDCL Supp, § 15-26A-12.

15-26A-25. Stay of judgment or order in circuit court--When allowed.

An appeal from a judgment or order shall not stay enforcement of proceedings in the circuit court except as provided in § 15-6-62 unless the appellant executes a supersedeas bond in the amount and form approved by the circuit court or otherwise complies with the provisions of this rule.

Source: Supreme Court Rule 79-1, Rule 8 (1); SDCL Supp, § 15-26A-14.

15-26A-26. Appellate procedure--Money judgment--Conditions of bond on appeal.

If the appeal is from a judgment directing the payment of money, the conditions of the bond required by § 15-26A-25 shall be the payment of the judgment or that part of the judgment which is affirmed together with interest thereon from the date of the judgment. The amount of the bond required collectively of all appellants may not exceed twenty-five million dollars regardless of the amount of judgment. If the appellee proves by a preponderance of the evidence that an appellant whose bond has been so limited has been dissipating assets outside the ordinary course of business to avoid payment of a judgment, the court may require the appellant to execute a bond in an amount up to the full amount of judgment.

Source: Supreme Court Rule 79-1, Rule 8 (1) (a); SDCL Supp, § 15-26A-15; SL 2004, ch 314 (Supreme Court Rule 03-13), eff. Jan. 1, 2004.

15-26A-27. Judgment directing the assignment or delivery of documents or personal property--Conditions of bond on appeal.

If the appeal is from a judgment directing the assignment or delivery of documents or personal property, the condition of the bond required by § 15-26A-25 shall be the obedience by appellant to the judgment or order of the Supreme Court. The bond provided by this section need not be furnished if the appellant places the documents or personal property in the custody of such officer or receiver as the presiding judge of the circuit court shall appoint.

Source: Supreme Court Rule 79-1, Rule 8 (1) (b); SDCL Supp, § 15-26A-16.

15-26A-28. Judgment directing the sale or possession of real property--Conditions of bond on appeal.

If the appeal is from a judgment directing the sale or delivery of possession of real property the condition of the bond required by § 15-26A-25 shall be that during the possession of such property by appellant, he will not commit or suffer to be committed any waste thereof, and that if the judgment is affirmed, he will pay the value of the use and occupation of the property, from the time of appeal until the delivery of possession thereof pursuant to the judgment.

Source: Supreme Court Rule 79-1, Rule 8 (1) (c); SDCL Supp, § 15-26A-17.

15-26A-29. Judgment directing execution of an instrument--Conditions of stay.

If the appeal is from a judgment directing the execution of a conveyance or other instrument, its execution shall not be stayed by the appeal unless the instrument shall be properly executed and deposited with the clerk of the circuit court to abide the judgment of the Supreme Court.

Source: Supreme Court Rule 79-1, Rule 8 (1) (d); SDCL Supp, § 15-26A-18.

15-26A-30. Sale of perishable property--Deposit of proceeds.

If the appeal is from a judgment directing the sale or possession of perishable property, the circuit court may order the property to be sold and the proceeds deposited in court to abide the judgment of the Supreme Court.

Source: Supreme Court Rule 79-1, Rule 8 (1) (e); SDCL Supp, § 15-26A-19.

15-26A-31. Conditions of bond on appeal from other judgments and orders.

If the appeal is from any judgment or order not expressly covered by this chapter the bond required by § 15-26A-25 shall be conditioned in such amount and form as the circuit court directs.

Source: Supreme Court Rule 79-1, Rule 8 (1) (f); SDCL Supp, § 15-26A-20.

15-26A-32. Extent of stay on filing of bond.

When an approved supersedeas bond is filed it shall stay all further proceedings in circuit court upon the judgment or order accordingly, except that the circuit court may proceed upon any other matter included in the action, not affected by the judgment or order appealed from.

Source: Supreme Court Rule 79-1, Rule 8 (2); SDCL Supp, § 15-26A-21.

15-26A-33. Joinder of bonds.

The cost bond and supersedeas bond required by this chapter may be in one instrument or several, at the option of appellant.

Source: Supreme Court Rule 79-1, Rule 8 (3); SDCL Supp, § 15-26A-22.

15-26A-34. Notice of application for bond.

When the amount, form, or effect of any bond is required to be fixed or approved by a court or judge, at least twenty-four hours' notice of the application therefor shall be given the adverse party.

Source: Supreme Court Rule 79-1, Rule 8 (4); SDCL Supp, § 15-26A-23.

15-26A-35. Personal sureties--Exceptions--Justification.

Except when the undertaking is with a corporate surety, an undertaking upon an appeal shall be of no effect unless it be accompanied by the affidavit of the sureties, in which each surety shall state that he is worth a certain sum mentioned in such affidavit, over and above all his debts and liabilities, in property within this state not by law exempt from execution, and which sum so sworn to by such sureties shall in the aggregate, be double the amount specified in such undertaking. An appellee may, however, except to the sufficiency of the sureties by service of exception upon appellant within ten days after filing of the bond. Appellant, within the next ten days and upon at least four days' notice to adverse parties, shall produce before the circuit court the sureties who thereupon may be examined on oath by adverse parties as to their sufficiency in such manner as the circuit court deems proper. If the circuit court finds the personal sureties sufficient, it shall endorse its allowance upon the undertakings and cause them to be filed with the clerk. The costs of the justification shall be paid by appellant if the sureties are found insufficient, but if found sufficient, the party or parties excepting to the sureties shall pay the costs of the justification. Unless the sureties justify as so prescribed within the allotted time, the appeal shall be regarded as if no undertaking had been given.

Source: Supreme Court Rule 79-1, Rule 8 (5); SDCL Supp, § 15-26A-24.

15-26A-36. Service of bond on adverse party.

A copy of every bond required to be furnished by §§ 15-26A-25 to 15-26A-31, inclusive, shall be filed with the clerk of the circuit court. The clerk shall not accept such bond for filing without proof of service of a copy thereof on all adverse parties.

Source: Supreme Court Rule 79-1, Rule 8 (6); SDCL Supp, § 15-26A-25.

15-26A-37. Proceedings against sureties on bond.

Whenever a bond for costs or supersedeas bond is given with one or more corporate or individual sureties, each surety thereon submits himself to the jurisdiction of the circuit court and irrevocably appoints the clerk of the circuit court as his agent upon whom any papers affecting his liability on the bond may be served. His or its liability may be enforced on motion in the circuit court without the necessity of an independent action. The motion and such notice of motion as the circuit court shall prescribe shall be served on the clerk of the circuit court, who shall forthwith mail copies to the sureties at their last known address.

Source: Supreme Court Rule 79-1, Rule 8 (7); SDCL Supp, § 15-26A-26.

15-26A-38. Stay of execution without bond by public agency or officer.

When the state, any state board or officer, any county, township, municipal corporation, school district, or its officers, in a purely official capacity, shall take an appeal, service and filing of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from and no undertaking or bond need be given, but the Supreme Court may, on motion, require security to be given in such form and manner as it shall in its discretion prescribe as a condition of the further prosecution of the appeal.

Source: SDC 1939 & Supp 1960, § 33.0722; SDCL, § 15-27-10; Supreme Court Rule 79-1, Rule 8 (8); SDCL Supp, § 15-26A-27.

15-26A-39. Application to Supreme Court for special relief.

A motion for the relief provided in §§ 15-26A-25 to 15-26A-38, inclusive, may be made to the Supreme Court but said motion shall show that the application to the circuit court for the relief sought is not practicable or that the circuit court has denied an application or has failed to afford the relief which the applicant requested, with the reasons given by the circuit court for its action. Said motion shall also show the reasons for the relief requested and the facts relied upon; and if the facts are subject to dispute, the motion shall be supported by affidavit or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk of the Supreme Court and normally will be considered by all members of the court, but in exceptional cases where such a procedure would be impracticable due to the requirements of time, the application may be made to and considered by a single justice of the court.

Source: Supreme Court Rule 79-1, Rule 8 (9); SDCL Supp, § 15-26A-28; Supreme Court Rule 82-2.

15-26A-40. New undertaking required when security insufficient--Dismissal of appeal or vacation of stay on failure to file new undertaking.

The Supreme Court, upon satisfactory proof that any surety to an undertaking given under this title has become insolvent, or that his circumstances have become so precarious that there is reason to apprehend that the undertaking is insufficient security, may in its discretion require the appellant to file and serve a new undertaking, with such sureties and in such time as shall be prescribed, and that in default thereof the appeal shall be dismissed or the stay of proceedings vacated, and the execution or performance of the judgment or order be allowed to be enforced without further delay.

Source: SDC 1939 & Supp 1960, § 33.0725; SDCL, § 15-28-4.

15-26A-41. Deposit in lieu of undertaking--Notice of deposit.

When the appellant is required, under any provisions of this title, to give an undertaking, he may in lieu thereof deposit with the clerk of the court in which the judgment or order appealed from is entered, a sum of money equal to the amount for which such undertaking is required to be given, and in lieu of the service of such undertaking, serve a notice of the making of such deposit. Such deposit and notice shall have the same effect as the service of the required undertaking, and be held to answer the event of the appeal upon the terms prescribed for the undertaking, in lieu of which the same is deposited.

Source: SDC 1939 & Supp 1960, § 33.0726; SDCL, § 15-28-5.

15-26A-42. Waiver of undertaking and deposit.

Any such undertaking and deposit may be waived in writing by the party for whose benefit the same is required to be made, and such waiver shall have the same effect as the giving of the undertaking would have had.

Source: SDC 1939 & Supp 1960, § 33.0726; SDCL, § 15-28-6.

15-26A-43. Failure to pay after affirmance of judgment as breach of undertaking.

In all cases a neglect for the space of thirty days after the affirmance on appeal of a judgment directing the payment of money and the filing of the remittitur in the trial court to pay the amount directed to be paid on such affirmance, shall be deemed a breach of the undertaking on such appeal.

Source: SDC 1939 & Supp 1960, § 33.0728; SDCL, § 15-28-7.

15-26A-44. Liability of sureties on dismissal of appeal.

The dismissal of an appeal by the appellant, or by the court for want of prosecution, unless the court shall at the time otherwise expressly order, shall render the sureties upon any undertaking, given under this title, liable in the same manner and to the same extent as if the judgment or order appealed from had been affirmed.

Source: SDC 1939 & Supp 1960, § 33.0728; SDCL, § 15-28-8.

15-26A-45. Damages determined by referee after affirmance by Supreme Court.

When the amount of damages to be paid by the appellant on affirmance of the judgment or order appealed from, pursuant to any undertaking, is not fixed by the judgment or decision of the Supreme Court on the appeal, the circuit court may, after the remittitur of the record from the Supreme Court is filed, order a reference to ascertain such damages, the expense of which shall be included in and recoverable with such damages.

Source: SDC 1939 & Supp 1960, § 33.0728; SDCL, § 15-28-9.

15-26A-46. Failure to pay damages determined by referee as breach of undertaking.

A neglect for a space of thirty days after the confirmation of the report of a referee, to whom a reference has been ordered for the purpose of ascertaining the damages to be paid, on the affirmance of any other judgment or order appealed from, to pay the amount of damages so ascertained and the expense of such reference, shall be deemed a breach of the undertaking on such appeal.

Source: SDC 1939 & Supp 1960, § 33.0728; SDCL, § 15-28-10.

15-26A-47. Composition of the record on appeal.

The original pleadings, papers, offered exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.

Source: Supreme Court Rule 79-1, Rule 10 (1); SDCL Supp, § 15-26A-30; Supreme Court Rule 97-10; SL 2017, ch 226 (Supreme Court Rule 17-03), eff. Jan. 19, 2017.

15-26A-48. Order for transcript of proceedings.

Within ten days after the filing of the notice of appeal, the appellant shall order from the reporter(s) transcript(s) of the proceedings or such parts thereof as deemed necessary. The order shall be in writing on the form prescribed by the Supreme Court, and within the same period service of the order shall be made on all parties to the action and a copy shall be filed with the clerk of the circuit court.

Source: Supreme Court Rule 79-1, Rule 10 (2)(a); SDCL Supp, § 15-26A-31; Supreme Court Rule 80-3; SL 1987, ch 399 (Supreme Court Rule 86-25); SL 1995, ch 309 (Supreme Court Rule 95-2).

15-26A-49. Waiver by failure to order transcript.

Failure to order a transcript within the time fixed by this chapter shall constitute a waiver of the right to such a transcript.

Source: SDC 1939 & Supp 1960, § 33.0737; SDCL, § 15-29-9; Supreme Court Rule 80-2.

15-26A-50. Determination of parts of transcript to be included.

Unless the entire transcript is to be included, the appellant shall within the ten days' time provided in § 15-26A-48 file with the clerk of the circuit court a statement of the issues he intends to present on the appeal and shall serve on the appellee a copy of the order or certificate and of the statement. If the appellee deems a transcript of other parts of the proceedings to be necessary, he shall, within ten days after the service of the order or certificate and the statement of the appellant file with the clerk of the circuit court and serve on the appellant, the court reporter, and the clerk of the Supreme Court a designation of additional parts to be included. Unless within ten days after service of such designation the appellant has ordered such parts and has so notified the appellee, the appellee may within the following ten days either order the parts or move in the circuit court for an order requiring the appellant to do so.

Source: Supreme Court Rule 79-1, Rule 10 (2) (b); SDCL Supp, § 15-26A-32; SL 1981, ch 13, § 3; Supreme Court Rule 82-16.

15-26A-51. Costs of transcript--Endorsement of order by reporter--Extension of time for transcript.

At the time of ordering, a party must make satisfactory arrangements with the reporter for payment of the costs of the transcript and all necessary copies. If the reporter requires a prepayment, he shall immediately notify the party placing the order, who shall then have ten days to make such payment. The reporter shall acknowledge at the foot of the order the date he received it, the date prepayment was received, if such payment was required, and the date on which he expects to have the transcript completed. The reporter shall transmit the order so endorsed to the clerk of the Supreme Court. The transcript shall be completed within forty-five days after receipt of the order or, if prepayment was requested, within forty-five days after receipt of such prepayment. If the reporter cannot complete the transcript within the prescribed time, he shall request an extension of time from the clerk of the Supreme Court, and the action of the clerk of the Supreme Court shall be entered on the record and the parties notified. In the event of the failure of the reporter to file the transcript within the time allowed, the clerk of the Supreme Court shall take such steps as may be directed by the Chief Justice of the Supreme Court.

In the event that the reporter receives a copy of appellee's designation of additional parts of the proceedings to be transcribed, as provided for in § 15-26A-50, his time for preparation of the transcript shall be tolled and commence to run anew when:

(1)    He receives an order from either the appellant or the appellee for additional parts of the transcript, in which case he shall endorse the order and transmit it to the clerk of the Supreme Court; or

(2)    The trial court has entered its order denying appellee's motion requesting the transcription of additional parts of the proceedings, in which event the trial clerk shall transmit a copy of the order of denial to the reporter and to the clerk of the Supreme Court.

Source: Supreme Court Rule 79-1, Rule 10 (2)(c); SDCL Supp, § 15-26A-33; Supreme Court Rule 82-17; SL 1991, ch 428 (Supreme Court Rule 90-05).

15-26A-52. Form of transcript--Number of copies--Certification.

The transcript shall be in the form prescribed in the appendix of forms. The reporter shall file the original transcript with the clerk of the circuit court and shall transmit a copy to the attorney for each party to the appeal separately represented and directly to any parties not represented. In the event that more than three copies are necessary to comply with the foregoing requirement, appellant may make application, upon notice, to the circuit court for an order determining the number of copies to be served and the time of use by the parties. Copies of the transcript may be reproduced by any duplicating or copying process which produces a clear black image on white paper. The reporter shall certify the correctness of the original and all copies of the transcript. He shall notify the clerk of the Supreme Court that he has filed the original transcript and transmitted the copies.

Source: Supreme Court Rule 79-1, Rule 10 (2) (d); SDCL Supp, § 15-26A-34.

15-26A-53. Duty of clerk of trial court to assemble and certify the record--Time and manner--Transmittal of index in lieu of entire record.

Within five days after the filing of the notice of appeal, it shall be the duty of the clerk of the trial court to assemble and consecutively number the pages of all pleadings, documents, papers, and exhibits filed in said action, including any opinion which the trial court may have filed or authorized for filing, except the parties may stipulate as to the contents of the record. The clerk shall then prepare and attach an alphabetical index to the record and shall promptly serve a copy on all counsel of record and the clerk of the Supreme Court. The clerk's certified record, together with the transcript, shall constitute the record on appeal.

The Supreme Court may provide by rule or order that a certified copy of the alphabetical index shall be transmitted in lieu of the entire record, subject to the right of any party to request at any time during the pendency of the appeal that designated parts of the record be transmitted.

Source: Supreme Court Rule 79-1, Rule 10 (3); SDCL Supp, § 15-26A-35; Supreme Court Rule 81-2; Supreme Court Rule 82-10; SL 2017, ch 227 (Supreme Court Rule 17-04), eff. Jan. 19, 2017.

15-26A-54. Statement of the proceedings when no report was made or when the transcript is unavailable.

If no report of all or any part of the proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may, within fifteen days after service of the notice of appeal, prepare a statement of the proceedings from the best available means, including his recollection, and file a written notice of intention to file such a statement with the clerk of the Supreme Court and with the clerk of the trial court. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within fifteen days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court, and the statement as approved by the trial court shall be filed with the trial clerk and included in the record within fifteen days of submission. The trial clerk shall give written notice of said filing to the clerk of the Supreme Court.

Source: Supreme Court Rule 79-1, Rule 10 (4); SDCL Supp, § 15-26A-36; Supreme Court Rule 80-8.

15-26A-55. Agreed statement as the record.

In lieu of the record as defined in § 15-26A-47, the parties within fifteen days of service of the notice of appeal may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented, and file a written notice of intention to file such statement with the clerk of the Supreme Court and with the clerk of the trial court. If the statement conforms to the truth, it, together with such additions as the trial court may consider necessary to present the issues raised by the appeal, shall be approved by the trial court and filed with the trial clerk within fifteen days of preparation. As so filed, the statement shall be the record on appeal. The trial clerk shall give written notice of said filing to the clerk of the Supreme Court.

Source: Supreme Court Rule 79-1, Rule 10 (5); SDCL Supp, § 15-26A-37; Supreme Court Rule 80-8.

15-26A-56. Correction or modification of the record.

If anything material to either party is omitted from the record, is misstated therein, or is improper, the parties by stipulation, or the trial court, before the record is transmitted to the Supreme Court, or the Supreme Court, on motion by a party or on its own initiative, may direct the record be corrected and if necessary require a supplemental record be approved and transmitted.

Source: Supreme Court Rule 79-1, Rule 10 (6); SDCL Supp, § 15-26A-38.

15-26A-57. Time for transmission of record--Temporary delay--Documents of unusual bulk or weight and physical exhibits--Motion for intermediate orders.

When the briefs have been served and filed in the Supreme Court, or the time for filing briefs has expired, the clerk of the Supreme Court shall so notify the clerk of the trial court in writing, and the clerk of the trial court shall then forthwith transmit the record on appeal to the clerk of the Supreme Court. Transmission of the record is effected when the clerk of the trial court mails or otherwise forwards the record to the Supreme Court. The parties, however, by written stipulation, or the Supreme Court acting through its clerk upon motion of a party may order, for cause shown, a temporary delay in the transmission of the settled record not to exceed thirty days. Such stipulation by the parties shall be subject to review and modification by the Supreme Court upon its own motion and order.

All documents which are, in the determination of the clerk of the trial court, of unusual bulk or weight, all physical exhibits other than documents which are not of unusual bulk or weight, and such other parts of the record as the Supreme Court may designate by rule or order, or the parties may designate by written stipulation, shall not be transmitted by the clerk of the trial court as part of the settled record unless he is otherwise directed to do so in writing by the party or the clerk of the Supreme Court. A party so directing must make advanced arrangement with the clerks of the trial court and the Supreme Court for the cost, transportation, and receipt of exhibits of unusual bulk or weight and those others which he directs to be transmitted.

If prior to the time the record is transmitted, a party desires to make in the Supreme Court a motion for dismissal, for relief, for a stay pending appeal, for additional security on bond on appeal, or on a supersedeas bond, or for any intermediate order, the clerk of the trial court at the request of any party shall transmit to the Supreme Court such parts of the original record as any party shall designate.

Source: Supreme Court Rule 79-1, Rule 11 (1); SDCL Supp, § 15-26A-39; Supreme Court Rule 82-11.

15-26A-58. Transmittal of record for preliminary hearing.

The Supreme Court may also at any time before or after the completion of an appeal by order directed to the clerk of the trial court require the transmission of the record or any part thereof to the clerk of the Supreme Court.

Source: Supreme Court Rule 79-1, Rule 11 (2); SDCL Supp, § 15-26A-40.

15-26A-59. Disposition of record after appeal.

The record on appeal shall remain on file in the office of the clerk of the Supreme Court until the action has finally been disposed of. It shall then be returned to the trial court with the remittitur.

Source: Supreme Court Rule 79-1, Rule 11 (3); SDCL Supp, § 15-26A-41.

15-26A-60. Brief of appellant--Contents.

The brief of the appellant shall contain under appropriate headings and in the order here indicated:

(1)    A table of contents, with page references.

(2)    A table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.

(3)    A jurisdictional statement setting forth the date and form of the judgment or order sought to be reviewed, and the date when the notice of appeal was filed. This statement must make it appear, in cases of appeal, that the order sought to be reviewed is appealable.

(4)    A concise statement of the legal issue or issues involved, omitting unnecessary detail. Each issue shall be stated as an appellate court would state the broad issue presented. Each issue shall be followed by a concise statement of how the trial court decided it, and a list of the most relevant cases not to exceed four, and the most relevant constitutional and statutory provisions.

(5)    A statement of the case and the facts. A statement of the case shall first be presented identifying the trial court and the trial judge and indicating briefly the nature of the case and its disposition in the trial court. There shall follow a statement of facts relevant to the grounds urged for reversal, modification, or other relief. The facts must be stated fairly, with complete candor, and as concisely as possible. Where it is claimed that a verdict, finding of fact, or other determination is not sustained by the evidence, the statement must set forth the particulars in which the evidence is claimed to be insufficient. Each statement of a material fact shall be accompanied by a reference to the record where such fact appears.

(6)    An argument. The argument shall contain the contentions of the party with respect to the issues presented, the reasons therefore, and the citations to the authorities relied on. Each issue shall be separately presented. Needless repetition shall be avoided.

(7)    A short conclusion stating the precise relief sought.

(8)    An appendix. The appendix shall include:

(a)    the judgment, order or decision in question and any relevant written findings of fact and conclusions of law and memorandum decision;

(b)    the statements of material facts and record citations required in § 15-6-56(c)(1) and (2);

(c)    any relevant portions of the pleadings, instructions, and transcripts;

(d)    items enumerated in § 15-26A-65; and

(e)    any other parts of the record to which the parties wish to direct the particular attention of the Court.

Any portion of a transcript or deposition included in the appendix shall be accompanied by a copy of the cover sheet which indicates the date(s) of the proceedings and the participants. Summaries, abstracts or narratives shall not be used. The pages of the appendix shall be separately numbered and the appendix shall contain a table of contents with page references. Sections of the appendix shall be tabbed and salient information highlighted.

(9)    One copy of the brief filed by the appellant in any appeal from a judgment or order pursuant to chapter 26-8A shall be signed by the appellant and his or her attorney. The appellant's signature shall be omitted from the other copies of the brief that are served or filed. The copy of the brief signed by the appellant shall be filed under seal by the clerk of the Supreme Court and shall be subject to inspection only as permitted by the Court in keeping with the best interests of the child.

Source: Supreme Court Rule 79-1, Rule 12 (1); SDCL Supp, § 15-26A-42; SL 1993, ch 391 (Supreme Court Rule 93-8); SL 2003, ch 261 (Supreme Court Rule 03-02), eff. July 1, 2003; SL 2004, ch 315 (Supreme Court Rule 03-14), eff. Jan. 1, 2004; SL 2007, ch 309 (Supreme Court Rule 06-77), eff. Jan. 1, 2007.

15-26A-61. Brief of appellee.

The brief of the appellee shall conform to the requirements of § 15-26A-60. If a notice of review is filed, the appellee's brief shall contain the judgment, order or decision in question and any relevant written findings of fact, conclusions of law and memorandum decision, if different from those included in the appendix to the appellant's brief.

Source: Supreme Court Rule 79-1, Rule 12 (2); SDCL Supp, § 15-26A-43; SL 2003, ch 262 (Supreme Court Rule 03-3); SL 2004, ch 316 (Supreme Court Rule 03-15), eff. Jan. 1, 2004.

15-26A-62. Reply brief.

The appellant may file a brief in reply to the brief of the appellee. The reply brief must be confined to new matter raised in the brief of the appellee and shall not exceed the page limitation set in § 15-26A-66.

Source: Supreme Court Rule 79-1, Rule 12 (3); SDCL Supp, § 15-26A-44; SL 1993, ch 392 (Supreme Court Rule 93-9).

15-26A-63. References in briefs to parties.

In their briefs and oral arguments counsel should minimize references to parties by such designations as "appellant" and "appellee." It promotes clarity to use the designations used in the trial court, or the actual names of the parties, or descriptive terms such as "employer," "owner," "guest," "injured person," "husband," etc.

Source: Supreme Court Rule 79-1, Rule 12 (4); SDCl Supp, § 15-26A-45.

15-26A-63.1. References in briefs to children.

Pursuant to § 26-7A-112, initials shall appear on appeal record documents in the place of the child and the child's parents, guardian, or custodian who are parties to the action when an intermediate appeal or appeal is taken from a judgment, decree, or order under the provisions of chapters 26-7A, 26-8A, 26-8B, and 26-8C.

Source: SL 1993, ch 393 (Supreme Court Rule 93-10).

15-26A-64. References in briefs to record.

Whenever reference is made in the briefs to any part of the record it shall be made to the particular part of the record, suitably designated, and to the specific pages thereof.

Source: Supreme Court Rule 79-1, Rule 12 (5); SDCL Supp, § 15-26A-46.

15-26A-65. Reproduction of statutes, ordinances, rules, regulations, etc..

If determination of the issues presented requires the study of statutes, ordinances, rules, regulations, etc., or relevant parts thereof, they shall be reproduced in the brief or in an appendix at the end.

Source: Supreme Court Rule 79-1, Rule 12 (6); SDCL Supp, § 15-26A-47.

15-26A-66. Length of briefs.

(a)    Monospaced Typeface. Appellant and appellee briefs in monospaced typeface shall not exceed forty pages. A reply brief and amicus curiae brief shall not exceed twenty pages. A supplemental brief shall not exceed ten pages. Monospaced type shall be no more nor no less than ten characters per inch (10 cpi).

(b)    Proportionally Spaced Typeface. Appellant and appellee briefs in proportionally spaced typeface shall not exceed thirty-two pages. A reply brief and amicus curiae brief shall not exceed sixteen pages. A supplemental brief shall not exceed five pages. Nonetheless, briefs may exceed these page limitations if they otherwise comply with the type volume limitations in § 15-26A-66(b)(2). A proportionally spaced typeface must include serifs, but sans serif type may be used in headings and captions. A proportionally spaced typeface must be 12-point or larger, in both body text and footnotes.

(1)    Type Style. Briefs must be set in a plain, roman style, although italics may be used for emphasis. Case names must be italicized or underlined. Boldface can only be used for case captions, section names, and argument headings. The use of all-capitals text may be applied only for case captions and section names. Nevertheless, quoted passages may use the original type styles and capitalization.

(2)    Type Volume Limitation. Appellant and appellee briefs are acceptable if they contain no more than the greater of 10,000 words or 50,000 characters. A reply brief and amicus curiae brief are acceptable if they contain no more than half the type volume specified for appellant and appellee briefs.

(3)    Headings, footnotes, and quotations count toward the word and character limitations. The table of contents, table of cases, jurisdictional statement, statement of legal issues, any addendum materials, and any certificates of counsel do not count toward the limitations.

(4)    Certificate of Compliance. A brief submitted under § 15-26A-66(b) must include a certificate by the attorney, or an unrepresented party, that the brief complies with the type volume limitation. The certificate must state the number of words or characters in the brief. The person preparing the certificate may rely on the word or character count of the word-processing system used to prepare the brief.

(c)    Upon approval of the Supreme Court, page or word limitations for briefs may be exceeded. A written request for such approval to exceed limitations shall be filed at least ten days prior to the filing date of the brief, specifying in detail the reasons why additions are necessary and stating the number of additional pages or words requested.

Source: Supreme Court Rule 79-1, Rule 12 (7); SDCL Supp, § 15-26A-48; Supreme Court Rule 80-3; SL 1993, ch 394 (Supreme Court Rule 93-11); SL 1999, ch 278.

15-26A-67. Briefs of multiple appellants or appellees.

In cases involving more than one appellant or appellee, including cases consolidated for purposes of appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs.

Source: Supreme Court Rule 79-1, Rule 12 (8); SDCL Supp, § 15-26A-49.

15-26A-68. Reproduction methods used for briefs.

Text must be reproduced with a clarity that equals or exceeds the output of a laser printer. The output of a dot-matrix printer or fax machine is not acceptable in either a brief or an appendix.

Source: Supreme Court Rule 79-1, Rule 12(9); SDCL Supp, § 15-26A-50; SL 1988, ch 422 (Supreme Court Order 87-3); SL 1999, ch 279.

15-26A-69. Printing and binding specifications for briefs.

All briefs shall substantially conform to the following standards, requirements, and conditions:

(1)    Each brief shall be printed in black in a clear and legible manner on one side only of white, unglazed, opaque paper of good texture, eight and one-half inches wide and eleven inches long.

(2)    The printing shall be double-spaced, except for lengthy quotations, which shall be indented and may be single spaced.

(3)    The left margin shall be one and one-half inches and all other margins shall not be less than one inch. The printing shall not be right-justified.

(4)    Each page of the brief, except the front index, shall be consecutively numbered in Arabic figures centered at the bottom of each page.

(5)    The cover of each brief shall state the title of the action, indicating which party is appellant and which is appellee; the name of the court from which the appeal is taken; the name of the judge who tried the action; whether the brief is for the appellant or appellee; the names and addresses of the attorneys for the appellant and appellee; and the date the notice of appeal was filed.

(6)    Each brief shall be securely bound on the left margin by substantial staples and binding tape or other approved binding.

Source: Supreme Court Rule 79-1, Rule 12 (9)(b); SDCL Supp, § 15-26A-51; SL 1995, ch 311 (Supreme Court Rule 95-4); SL 1999, ch 280.

15-26A-69.1. Citation of official opinions of the Supreme Court.

(1) The initial citation of any published opinion of the Supreme Court released prior to January 1, 1996, in a brief, memorandum, or other document filed with the court and the citation in the table of cases in a brief shall include a reference to the volume and page number of the South Dakota Reports or North Western Reporter in which the opinion is published. Subsequent citations within the brief, document, or memorandum shall include the page number and sufficient references to identify the initial citation.

(2)    The initial citation of any published opinion of the Supreme Court released on or after January 1, 1996, in a brief, memorandum, or other document filed with the court and the citation in the table of cases in a brief shall include a reference to the calendar year in which the decision was announced, the court designation of "S.D.", and a sequential number assigned by the clerk of the Supreme Court. Citation to specific portions of the opinion shall be made to the paragraph number assigned by the clerk of the Supreme Court. A paragraph citation should be placed immediately following the sequential number assigned to the case. Subsequent citations within the brief, document, or memorandum shall include the paragraph number and sufficient references to identify the initial citation.

When available, initial citations shall include the volume and initial page number of the North Western Reporter in which the opinion is published.

Source: SL 1996, ch 312 (Supreme Court Rule 95-13); SL 2011, ch 229 (Supreme Court Rule 10-05), eff. Aug. 30, 2010.

15-26A-70. Brief failing to conform to requirements--Duty of clerk of Supreme Court.

The clerk of the Supreme Court may refuse to file a brief which does not substantially comply with the requirements of §§ 15-26A-60 to 15-26A-69, inclusive, or any brief which is not printed or reproduced in a clear and legible manner. When a brief is refused for filing the clerk shall immediately notify the party or attorney who submitted the same of the rejection. Such party shall then have ten days in which to file a brief in compliance, for which no additional costs may be taxed.

Source: Supreme Court Rule 79-1, Rule 12 (10); SDCL Supp, § 15-26A-52.

15-26A-70.1. Pro se filings by party represented by counsel.

In any appeal where a party is represented by counsel, the clerk of the Supreme Court shall not accept for filing any pro se briefs, pleadings, motions or other documents. In the event that such documents are presented for filing, the clerk shall acknowledge receipt and notify the party, and those the party has served such documents upon, that the documents are not being filed pursuant to this rule. The clerk shall notify counsel of record of the receipt of the documents and their return, including with the notification copies of such documents. This rule shall not apply to pro se pleadings or documents directed to the court concerning the performance of appellate counsel or briefs filed pursuant to State v. Korth, 2002 SD 101, 650 N.W.2d 528.

Source: SL 2009, ch 279 (Supreme Court Rule 08-09), eff. Nov. 1, 2008.

15-26A-71. Amendment of briefs--Terms for allowance.

The Supreme Court, or the Chief Justice, may permit the service and filing of amendments to any of the briefs on file in the appeal, and may in the order therefor, prescribe the time for service and filing of such an amendment and the allowance of time for reply thereto and for such terms therein as to the court may seem warranted.

Source: SDC 1939 & Supp 1960, § 33.0748; SDCL, § 15-29-28; Supreme Court Rule 80-2.

15-26A-72. Costs not allowed for extraneous matter in briefs--Expense of printing matters omitted from appellant's brief.

No costs shall be allowed for printing in the brief matters clearly unrelated to any issue raised by the appeal.

Costs may be taxed in the Supreme Court in favor of appellee and against appellant for the expense of printing in appellee's brief matters which are clearly material to the issues and omitted by the appellant from his brief.

Source: SDC 1939, § 33.0743; Supreme Court Rule, Order No. 2, 1952; SDCL, § 15-29-29; Supreme Court Rule 80-2.

15-26A-73. Supplemental brief with late authorities--Service on counsel.

Whenever a party desires to present late authorities, newly enacted legislation, or other intervening matters that were not available in time to have been included in the party's brief in chief, the party shall serve a copy thereof upon the attorney for each party to the action separately represented and upon any party who is not represented by counsel and file the supplemental brief, restricted to such new matter and otherwise in conformity with this chapter, up to the time the case is called for hearing, or by leave of court thereafter. A supplemental brief shall not exceed ten pages.

Source: Supreme Court Rule 79-1, Rule 12 (11); SDCL Supp, § 15-26A-53; SL 1993, ch 395 (Supreme Court Rule 93-12); SL 2023, ch 222 (Supreme Court Rule 23-05), eff. Apr. 1, 2023.

15-26A-74. Brief and argument of amicus curiae.

A brief of an amicus curiae may be filed only at the request of the court or by leave of the court granted upon motion and notice to the parties. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. An amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer. An amicus curiae brief shall not exceed the page limitation set in § 15-26A-66.

Amici curiae counsel will not be entitled to participate in oral argument unless counsel for either party agrees to share his time and the court allows the appearance of amici curiae counsel.

Source: Supreme Court Rule 79-1, Rule 13; SDCL Supp, § 15-26A-54; SL 1993, ch 396 (Supreme Court Rule 93-13).

15-26A-75.Time for serving and filing briefs.

(1) Appellant's brief. If a transcript is obtained prior to appeal, or if no transcript is ordered, the appellant's brief shall be due within forty-five days after service of the notice of appeal. If a transcript is ordered but not received prior to appeal, or if procedures pursuant to § 15-26A-54 or 15-26A-55 are followed, the appellant's brief shall be due within forty-five days after service of the transcript or filing of the statements provided for in § 15-26A-54 or 15-26A-55.

(2) Appellee's brief. The appellee's brief shall be due for service and filing within forty-five days after service of the appellant's brief, or in the case of multiple appellants, within forty-five days after service of the last appellant's brief.

(3) Appellant's reply brief. The appellant's reply brief shall be due for service and filing within thirty days after service of the appellee's brief, or in the case of multiple appellees, within thirty days after service of the last appellee's brief.

In any appeal from a judgment or order in an adoption or an abuse and neglect proceeding, including a judgment or order terminating parental rights, all time periods under subdivisions (1) and (2) of this section shall be reduced to twenty-five days, and the time period under subdivision (3) shall be reduced to fifteen days.

Source: Supreme Court Rule 79-1, Rule 14 (1); SDCL Supp, § 15-26A-55; Supreme Court Rule 80-3; Supreme Court Rule 80-8; SL 1990, ch 424 (Supreme Court Rule 89-6); Supreme Court Rule 97-11; SL 2007, ch 307 (Supreme Court Rule 06-75), eff. Jan. 1, 2007; SL 2020, ch 247 (Supreme Court Rule 19-17), eff. Sept. 6, 2019.

15-26A-76. Extension of time for serving and filing briefs.

The parties may allow to each other by stipulation, one extension of time not exceeding fifteen days for serving and filing the appellant's and appellee's initial brief, provided such stipulation is made and presented to the clerk of the Supreme Court before the time for filing such brief as provided in § 15-26A-75 has expired. Thereafter, no other extension of time fixed by these rules for filing briefs will be allowed, except upon application and notice. The application shall be made to the Chief Justice of the Supreme Court and shall be allowed only for good cause.

An extension of time for filing a brief in an adoption or an abuse and neglect action will be granted only upon application and notice, said application to be made to the Chief Justice of the Supreme Court and allowed only for good cause.

Source: Supreme Court Rule 79-1, Rule 14 (2); SDCL Supp, § 15-26A-56; Supreme Court Rule 97-12; SL 2007, ch 308 (Supreme Court Rule 06-76), eff. Jan. 1, 2007.

15-26A-77. Stipulation waiving default in filing of briefs--Court order extending time.

Provided that no order of dismissal has been entered, when there has been default in the serving and filing of a brief within the time fixed by § 15-26A-75, counsel may stipulate in writing waiving such default; and if there shall be attached to such stipulation an affidavit setting forth facts constituting reasonable excuse for such default, the court or Chief Justice may, in its or his discretion, make an order excusing such default and extending the time for serving and filing such brief.

Source: SDC 1939 & Supp 1960, § 33.0746; SDCL, § 15-29-24; Supreme Court Rule 80-2.

15-26A-78. Default in filing of briefs waived by court without stipulation.

Provided that no order of dismissal has been entered, when there has been default in the serving and filing of a brief, the court may, for good cause, upon application and notice, permit briefs to be served and filed without stipulation of the parties, provided, however, that opposition to said application may be served and filed within seven days after service of said application.

Source: SDC 1939 & Supp 1960, § 33.0746; SDCL, § 15-29-25; Supreme Court Rule 80-2.

15-26A-79. Number of copies of briefs to be served and filed.

A copy of each brief shall be served on the attorney for each party to the appeal separately represented and upon any party who is not represented by counsel. A copy of each brief shall be filed with the clerk of the Supreme Court. In addition to electronic submission of each brief, an original must be submitted to the clerk. The clerk shall not accept a brief for filing unless it is accompanied by admission or proof of service.

Source: Supreme Court Rule 79-1, Rule 14 (3); SDCL Supp, § 15-26A-57; SL 2019, ch 226 (Supreme Court Rule 19-05); Supreme Court Order dated Aug. 30, 2022; SL 2023, ch 223 (Supreme Court Rule 23-06), eff. Apr. 1, 2023.

15-26A-80. Consequence of failure to file briefs.

If an appellant fails to file his brief within the time provided by § 15-26A-75 or within the time as extended, an appellee may move for dismissal of the appeal. If an appellee fails to timely file his brief, he will not be heard at oral argument except by permission of the court. The clerk may not accept for filing any brief not timely submitted for filing.

Source: Supreme Court Rule 79-1, Rule 14 (4); SDCL Supp, § 15-26A-58.

15-26A-81. Briefs mailed for filing--Time.

When briefs are forwarded to the clerk for filing by mail they shall be accompanied by an affidavit of mailing or certificate of service of mailing and shall be deemed to be filed as of the date of mailing.

Source: Supreme Court Rule 79-1, Rule 14 (5); SDCL Supp, § 15-26A-59.

15-26A-82. Supreme Court calendar for oral argument--Duty of clerk.

The clerk of the Supreme Court shall keep a calendar under the direction of the Chief Justice in which the dates for oral argument shall be entered.

When an appeal or an original proceeding is set for oral argument the clerk shall give written notice by first class mail to all attorneys of record in the case stating the date and place that argument will be heard. If any party is not represented by an attorney, such notice shall be given to such party by mailing to his last known post office address. The court may in its discretion consider the appeal on the briefs and record without oral argument.

Source: Supreme Court Rule 79-1, Rule 15 (1); SDCL Supp, § 15-26A-60.

15-26A-83. Time allowed for argument.

For oral argument, unless otherwise ordered, the appellant shall be allowed twenty minutes to open, the appellee shall be allowed twenty minutes to answer and the appellant shall be allowed ten minutes for rebuttal. If additional time is deemed necessary for adequate presentation, counsel shall obtain permission from the court before commencing the argument. A party is not obliged to use all of the time allowed.

Source: Supreme Court Rule 79-1, Rule 15 (2); SDCL Supp, § 15-26A-61.

15-26A-84. Order and content of argument.

The appellant is entitled to open and conclude the argument. The opening argument shall include a fair statement of the case. Counsel should not read at length from the record, briefs, or authorities.

Source: Supreme Court Rule 79-1, Rule 15 (3); SDCL Supp, § 15-26A-62.

15-26A-85. Number of attorneys allowed to argue.

Not more than two attorneys to the side will be allowed to argue any case, except by special permission which will be granted when there are several parties on the same side with divergent interests.

Source: Supreme Court Rule 75-2, § 7; SDCL Supp, § 15-26-25.2.

15-26A-86. Nonappearance of parties.

If counsel for a party fails to appear to present argument, the court may hear argument of counsel who is present, and the case will be decided on the briefs unless the court otherwise orders.

Source: Supreme Court Rule 79-1, Rule 15 (4); SDCL Supp, § 15-26A-63.

15-26A-87. Submission on briefs.

By agreement of the parties, a case may be submitted for decision on the briefs, but the court may direct that the case be argued.

Source: Supreme Court Rule 79-1, Rule 15 (5); SDCL Supp, § 15-26A-64.

15-26A-87.1. Disposition on briefs and record--Grounds--Citation of decisions restricted.

(A)    After all briefs have been filed in any appeal, the Supreme Court by unanimous action may, sua sponte, enter an order or memorandum opinion affirming the judgment or order of the trial court for the reason that it is manifest on the face of the briefs and the record that the appeal is without merit because:

(1)    The issues are clearly controlled by settled South Dakota law or federal law binding upon the states;

(2)    The issues are factual and there clearly is sufficient evidence to support the jury verdict or findings of fact below;

(3)    The issues are ones of judicial discretion and there clearly was not an abuse of discretion; or

(4)    Other good cause exists for summary affirmance, in which case the order or memorandum shall contain a succinct statement of the reason for affirmance.

(B)    Notwithstanding the provision in section (A) requiring unanimous action, an order or memorandum opinion affirming the judgment or order of the trial court may be entered pursuant to subsections (1) through (4) of section (A) on a majority vote, even though the claim may have merit in the view of the minority, provided that all justices participating in the action shall agree that such summary disposition of the action may be made.

(C)    After all briefs have been filed in any appeal, the Supreme Court by unanimous action may, sua sponte, enter an order or memorandum opinion reversing the judgment or order of the trial court for the reason that it is manifest on the face of the briefs and the record that it is clear the order or judgment is erroneous for one or more of the following reasons:

(1)    Summary judgment was erroneously granted because a genuine issue of material fact exists;

(2)    The judgment or order was clearly contrary to settled South Dakota law or federal law binding upon the states;

(3)    The issue on appeal is one of judicial discretion and there clearly was an abuse of discretion; or

(4)    Other good cause exists for summary reversal, in which case the order or memorandum shall contain a succinct statement of the reason for reversal.

(D)    Notwithstanding the provision in section (C) requiring unanimous action, an order or memorandum opinion reversing the judgment or order of the trial court may be entered pursuant to subsections (1) through (4) of section (C) on a majority vote, even though the claim may have merit in the view of the minority, provided that all justices participating in the action shall agree that such summary disposition of the action may be made.

(E)    A list indicating the disposition of all decisions rendered by the Supreme Court under this section shall be published quarterly in the Northwestern Reporter. Such decisions shall not be cited or relied upon as authority in any litigation in any court in South Dakota except when the decision establishes the law of the case, res judicata or collateral estoppel, or in a criminal action or proceeding involving the same defendant or a disciplinary action or proceeding involving the same person.

A petition for rehearing of a cause decided under this section may be served and filed pursuant to the provisions of § 15-30-4.

Costs in favor of the prevailing party shall be assessed as provided in chapter 15-30.

Source: Supreme Court Rule 81-5; Supreme Court Rule 82-20; Supreme Court Rule 82-34; Supreme Court Rule 85-3; SL 1987, ch 400 (Supreme Court Rule 86-26); Supreme Court Rule 89-25; SL 1989, ch 700, § 1; SL 2022, ch 255 (Supreme Court Rule 22-02), eff. Feb. 1, 2022.

15-26A-87.2. Motions--Answers to motions--Generally.

Unless otherwise specifically provided in this chapter, motions shall be served upon the attorney for each party to the action separately represented and upon any party who is not represented by counsel, and the motion, together with proof of service thereof, shall be filed with the clerk of the Supreme Court.

Any party may respond to a motion by filing a response, together with proof of service thereof, with the clerk of the Supreme Court within ten days after service of the motion, or within such time as may be otherwise directed by the court.

Source: SL 1988, ch 421 (Supreme Court Order 87-2); SL 1990, ch 425 (Supreme Court Rule 89-7); SL 2023, ch 224 (Supreme Court Rule 23-07), eff. Apr. 1, 2023.

15-26A-87.3. Motion for attorney fees--Contents, form, and filing of motion.

A motion for appellate attorney fees in actions where such fees may be allowable must comply with the following requirements:

(1)    The motion must be accompanied by a verified, itemized statement of legal services rendered, said statement to be exclusive of costs allowable under § 15-30-6;

(2)    The motion must be served and filed prior to submission of the action on its merits; and

(3)    The motion and itemized statement, together with proof of service thereof, must be submitted for filing.

Consideration of a motion for attorney fees will be held in abeyance until such time as the action is considered on its merits.

Source: SL 1996, ch 317; SL 2023, ch 225 (Supreme Court Rule 23-08), eff. Apr. 1, 2023.

15-26A-88. Physical exhibits used at argument.

If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them placed in the courtroom before the court convenes on the date of the argument. After the argument, counsel shall cause the exhibits to be removed from the courtroom unless the court otherwise directs.

Source: Supreme Court Rule 79-1, Rule 15 (6); SDCL Supp, § 15-26A-65.

15-26A-89. When member of court absent.

Whenever any member of the court is not present at the oral argument of a case, such case shall be deemed submitted to such member of the court on the record, briefs, and recorded arguments. When during the consideration of a case there is a change in the personnel of the court, the case shall be deemed submitted to the members of the court sitting on the case when the case was placed on the court's calendar.

Source: Source: Supreme Court Rule 79-1, Rule 15 (7); SDCL Supp, § 15-26A-66.; SL 2011, ch 230 (Supreme Court Rule 10-06), eff. Aug. 30, 2010.

15-26A-90. Prehearing conference.

At any time before oral argument the court may direct the attorneys for the parties to appear before the court or a justice thereof for a prehearing conference to consider the simplification of the issues and such other matters as may aid in the disposition of the proceedings by the court. The court or a justice shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues to those not disposed of by admissions or agreements of counsel, and such order when entered controls the subsequent course of the proceedings unless modified to prevent manifest injustice.

Source: Supreme Court Rule 79-1, Rule 15 (8); SDCL Supp, § 15-26A-67.

15-26A-91. Time for petition for reinstatement--Contents, form, and filing of petition.

A petition for reinstatement of an appeal dismissed by the Supreme Court may be served and filed within twenty days after entry of the order of dismissal. The petition shall state briefly the ground upon which the reinstatement is sought and any underlying circumstances relevant to the dismissal. Copies of relevant affidavits, documents, and correspondence may be attached to the petition. The petition shall be filed with the clerk of the Supreme Court. Any party may serve and file answer thereto within ten days after service of the petition.

Source: Supreme Court Rule 80-4; SL 2023, ch 226 (Supreme Court Rule 23-09), eff. Apr. 1, 2023.

15-26A-92. Enlargement of time.

The Supreme Court for good cause shown may upon motion enlarge or extend the time prescribed by this chapter for doing any act or may permit an act to be done after the expiration of such time; but the Supreme Court may not enlarge the time for filing or serving a notice of appeal.

Source: Supreme Court Rule 79-1, Rule 16; SDCL Supp, § 15-26A-68; SL 2013, ch 263 (Supreme Court Rule 13-02), eff. Feb. 14, 2013.

15-26A-93. Title of chapter.

This chapter shall be known as the South Dakota Rules of Civil Appellate Procedure and may be cited as S.D.R.C. App.P. Rule ___.

Source: Supreme Court Rule 79-1, Rule 17.