Codified Law 15-6 | South Dakota Legislature

15-6-30(b) Notice of examination--General requirements--Special notice--Nonstenographic recording--Production of documents and things--Deposition of organization.

15-6-30(c) Examination and cross-examination--Record of examination--Oath--Objection.

15-6-30(d) Schedule and duration--Motion to terminate or limit examination.

15-6-30(e) Submission to witness--Changes--Signing.

15-6-30(f) Certification and filing by officer--Exhibits--Copies.

15-6-30(g) Failure to attend or to serve subpoena for deposition expenses.

15-6-31 15-6-31. --Depositions of witnesses upon written interrogatories

15-6-31(a) Serving questions--Notice.

15-6-31(b) Officer to take responses and prepare record.

15-6-31(c) Notice of filing.

15-6-31(d) 15-6-31(d). Superseded

15-6-32 15-6-32. Effect of errors and irregularities in depositions

15-6-32(a) Use of depositions.

15-6-32(b) Objections to admissibility.

15-6-32(c) Effect of taking or using deposition.

15-6-32(d) Effect of errors and irregularities in depositions.

15-6-33 15-6-33. Interrogatories to parties

15-6-33(a) Availability--Procedures for use.

15-6-33(b) Scope--Use at trial.

15-6-33(c) Option to produce business records.

15-6-34 15-6-34. Discovery and production of documents and things for inspection, copying, or photographing

15-6-34(a) Scope.

15-6-34(b) Procedure.

15-6-34(c) Persons not parties.

15-6-35 15-6-35. Physical and mental examinations and blood tests of persons

15-6-35(a) Order for examination.

15-6-35(b) Report of examining physician.

15-6-36 15-6-36. Admission of facts and of genuineness of documents

15-6-36(a) Request for admission.

15-6-36(b) Effect of admission.

15-6-37 15-6-37. Refusal to make discovery--consequences

15-6-37(a) Motion for order compelling disclosure or discovery.

15-6-37(b) Failure to comply with order.

15-6-37(c) Failure to disclose--False or misleading disclosure--Refusal to admit.

15-6-37(d) Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection.

15-6-38 15-6-38. Jury trial of right

15-6-38(a) Right to jury trial preserved.

15-6-38(b) Demand for jury trial.

15-6-38(c) Specification of issues in demand for jury trial.

15-6-38(d) Waiver of jury trial.

15-6-39 15-6-39. Trial by jury or by the court

15-6-39(a) Trial by jury.

15-6-39(b) Trial by the court.

15-6-39(c) Advisory jury and trial by consent.

15-6-40 15-6-40. Assignment of cases for trial

15-6-40(a) Issues--When, where, and how tried.

15-6-40(b) 15-6-40(b). Repealed by SL 1993, ch 386

15-6-40(c) Proceeding in absence of party.

15-6-41 15-6-41. Dismissal of actions

15-6-41(a) Voluntary dismissal--Effect thereof.

15-6-41(b) Involuntary dismissal--Effect thereof.

15-6-41(c) Dismissal of counterclaim, cross-claim, or third-party claim.

15-6-41(d) Costs of previously dismissed action.

15-6-42 15-6-42. Consolidation--separate trials

15-6-42(a) Consolidation of actions.

15-6-42(b) Separate trials.

15-6-43 15-6-43. Evidence

15-6-43(a) Form and admissibility of evidence.

15-6-43(b) 15-6-43(b). Superseded

15-6-43(c) 15-6-43(c). Superseded

15-6-43(d) Oath or affirmation.

15-6-43(e) Evidence on motions.

15-6-43(f) Interpreters.

15-6-44 15-6-44. Proof of official record

15-6-44.1 Determination of foreign law.

15-6-44(a) Authentication of official records.

15-6-44(b) Proof of lack of official record.

15-6-44(c) Other proof of official record.

15-6-45 15-6-45. Subpoena

15-6-45(a) Subpoena for attendance of witnesses and for production of documentary evidence--Form--Issuance.

15-6-45(b) Subpoena for production of documentary evidence.

15-6-45(c) Service of subpoena.

15-6-45(d) Subpoena for taking depositions--Place of examination.

15-6-45(e) 15-6-45(e). Superseded

15-6-45(f) Failure to obey subpoena as contempt.

15-6-45(g) Nonresident of state served with subpoena in state.

15-6-46 Exceptions unnecessary.

15-6-47 15-6-47. Jurors

15-6-47(a) Examination of jurors.

15-6-47(b) Alternate jurors.

15-6-48 Juries of less than twelve--Majority verdict.

15-6-49 15-6-49. Special verdicts and interrogatories

15-6-49(a) Special verdicts.

15-6-49(b) General verdict accompanied by answer to interrogatories.

15-6-50 15-6-50. Motion for a directed verdict and for judgment notwithstanding the verdict

15-6-50(a) Judgment as a matter of law.

15-6-50(b) Renewing motion for judgment after trial--Alternative motion for new trial.

15-6-50(c) Granting renewed motion for judgment as a matter law--Conditional rulings--New trial motion.

15-6-50(d) Denial of motion for judgment as a matter of law.

15-6-51 15-6-51. Instructions to jury--objection

15-6-51(a) Instructions to jury--Requests.

15-6-51(b) Instructions.

15-6-51(c) Objections.

15-6-51(d) Assigning error--Plain error.

15-6-52 15-6-52. Findings by the court

15-6-52(a) Effect of findings by the court--Proposals--When unnecessary.

15-6-52(b) Waiver of findings and conclusions of law.

15-6-53 15-6-53. Referees

15-6-53(a) Appointment and compensation of referees.

15-6-53(b) Reference.

15-6-53(c) Powers of referee.

15-6-53(d) Proceedings before referee.

15-6-53(e) Report of referee.

15-6-54 15-6-54. Judgments--costs

15-6-54(a) Definition--Form of judgment.

15-6-54(b) Judgment upon multiple claims or involving multiple parties.

15-6-54(c) Demand for judgment.

15-6-54(d) Judgment for costs--Attorneys' fees.

15-6-55 15-6-55. Default

15-6-55(a) Entry of default.

15-6-55(b) Default judgment.

15-6-55(c) Setting aside default.

15-6-55(d) Plaintiffs, counterclaimants and cross-claimants entitled to default.

15-6-56 15-6-56. Summary judgment

15-6-56(a) Summary judgment for claimant.

15-6-56(b) Summary judgment for defending party.

15-6-56(c) Motion for summary judgment and proceedings thereon.

15-6-56(d) Case not fully adjudicated on motion for summary judgment.

15-6-56(e) Form of affidavits for summary judgment--Further testimony--Defense required.

15-6-56(f) Opposing summary judgment when affidavits are unavailable.

15-6-56(g) Summary judgment affidavits made in bad faith.

15-6-57 Declaratory judgments.

15-6-58 Entry of judgment and orders--Effective date.

15-6-59 15-6-59. New trials--Amendment of judgments

15-6-59(a) Grounds for new trial.

15-6-59(b) Time for motion for new trial--Rulings thereon--Extension of time.

15-6-59(c) Hearing and answering affidavits on motion for new trial.

15-6-59(d) New trial on initiative of court.

15-6-59(e) Procedure upon hearing of motion for new trial.

15-6-59(f) Motion for new trial not required as foundation for appeal in certain cases.

15-6-59(g) Order granting new trial must show grounds upon which based.

15-6-60 15-6-60. Relief from judgment or order

15-6-60(a) Relief from clerical mistakes.

15-6-60(b) Relief on ground of mistake--Inadvertence--Excusable neglect--Newly discovered evidence--Fraud.

15-6-61 Harmless Error.

15-6-62 15-6-62. Stay of proceedings to enforce a judgment

15-6-62(a) Automatic stay of execution--Exceptions--Injunctions and receiverships.

15-6-62(b) Stay of execution on motion for new trial or for judgment.

15-6-62(c) Injunction pending appeal.

15-6-62(d) Stay upon appeal.

15-6-62(e) Stay in favor of the state or agency thereof.

15-6-62(f) Power of Supreme Court not limited.

15-6-62(g) Stay of judgment as to multiple claims or multiple parties.

15-6-63 Disability of a judge.

15-6-64 Seizure of person or property.

15-6-65 15-6-65. Injunctions and restraining orders

15-6-65(a) Preliminary injunction.

15-6-65(b) Temporary restraining order without notice.

15-6-65(c) Undertaking required on preliminary injunction or temporary restraining order--Ascertainment of damages.

15-6-65(d) Contents of order--Parties bound.

15-6-66 Receivers.

15-6-67 15-6-67. Deposit in court

15-6-67(a) Deposit in an action.

15-6-67(b) Deposit in court by substitution.

15-6-67(c) Deposit in court when no action is brought.

15-6-67(d) Court may order deposit or seizure of property.

15-6-67(e) Voluntary partial payment as credit against judgment.

15-6-68 Offer of Judgment.

15-6-69 Execution.

15-6-70 Judgment for specific acts--Vesting title.

15-6-71 Process in behalf of and against persons not parties.

15-6-72 Expedited civil actions--General provisions.

15-6-72.1 Local intergovernmental actions--Expedited action--Alternative dispute resolution.

15-6-72.2 Definition--Local government body.

15-6-73 Discovery in expedited civil actions.

15-6-74 Motions.

15-6-75 Procedure for expedited trials.

15-6-76 Settlement conference--Alternative dispute resolution.

15-6-76.1 Claim preclusion--Issue preclusion.

15-6-77 15-6-77. Courts of record and clerks

15-6-77(a) Trial courts of record always open.

15-6-77(b) Trials and hearings--Orders in chambers.

15-6-77(c) Clerk's office and orders by clerk.

15-6-78 15-6-78, 15-6-79. Reserved

15-6-80 Stenographic report or transcript as evidence.

15-6-81 15-6-81. Applicability

15-6-81(a) Procedure preserved.

15-6-81(b) 15-6-81(b). Omitted

15-6-81(c) Appeals to circuit courts.

15-6-81(d) Chapter incorporated into statutes.

15-6-82 Jurisdiction and venue.

15-6-83 Rules by courts of record.

15-6-84 Forms.

15-6-85 Title.

15-6-86 Effective date.

15-6-A SPECIAL PROCEEDINGS (See § 15-6-81(a))

15-6-B CIRCUIT COURT RULES (See § 15-6-83)

15-6-C APPENDIX OF FORMS (See § 15-6-84)

15-6-1. Scope of Chapter.

This chapter governs the procedure in the circuit courts of the State of South Dakota in all suits of a civil nature, with the exceptions stated in § 15-6-81. It shall be construed to secure the just, speedy and inexpensive determination of every action.

Source: SD RCP, Rule 1, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-2. One form of action.

There shall be one form of action to be known as a "civil action." The distinction between actions at law and suits in equity, and the forms of all such actions and suits, are abolished in this state.

Source: SDC 1939 & Supp 1960, § 33.0101; SD RCP, Rule 2, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-3. Commencement of action.

A civil action is commenced as provided in §§ 15-2-30 and 15-2-31.

Source: SD RCP, Rule 3, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-4(a). Summons--Form.

The summons shall be legibly subscribed by the plaintiff or his attorney and shall include the subscriber's address. It shall be directed to the defendant, and shall require him to answer the complaint and serve a copy of his answer on the subscriber at the subscriber's address within thirty days after the service of the summons, exclusive of the day of service, and shall notify him that in case of his failure to answer, judgment by default may be rendered against him as requested in the complaint.

Whenever the form of the summons is specified in any statute or rule relating to any action, remedy or special proceeding, the form so specified shall be used.

Source: SDC 1939 & Supp 1960, § 33.0803; SD RCP, Rule 4 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2010, ch 251 (Supreme Court Rule 09-07), eff. Sept. 24, 2009.

15-6-4(b). Summons served without complaint.

A copy of the complaint need not be served with the summons. In such case the summons must state where the complaint is or will be filed.

If the complaint is not served with the summons and the defendant within thirty days after service of the summons, in any such case, causes notice of appearance to be given, in person or by attorney, and demands in writing a copy of the complaint specifying a place within the state where it may be served, a copy of the complaint must, within twenty days thereafter, be served accordingly. After such service of the complaint, the defendant has thirty days to answer or otherwise proceed against the complaint.

In any of such cases where the same attorney appears for different parties, only one copy of a notice, complaint, answer, motion, or other paper in the action need be served upon him, unless otherwise specifically ordered by the court in any case.

Source: SDC 1939 & Supp 1960, § 33.0821; SD RCP, Rule 4 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-4(c). By whom summons served.

The summons may be served by the sheriff or a constable of the county or other comparable political subdivision where the defendant may be found, or in the District of Columbia by the United States marshal or a deputy, or by any other person not a party to the action who at the time of making such service is an elector of any state. If the defendant to be served is an Indian residing in Indian country, the summons may be served by a person not a party to the action who at the time of making such service is an elector of any state. The service shall be made and the summons returned with proof of the service, with all reasonable diligence, to the plaintiff's attorney, if any, otherwise to the plaintiff. The plaintiff or the plaintiff's attorney may by endorsement on the summons fix a time for the service thereof, and the service shall be made accordingly.

Source: SDC 1939 & Supp 1960, § 33.0806; SD RCP, Rule 4 (c), as adopted by Supp. Ct. Order March 29, 1966, effective July 1, 1966; SL 1979, ch 147, § 1; SL 1994, ch 155; SL 1999, ch 102, § 1.

15-6-4(d). Personal service of summons.

The summons shall be served by delivering a copy thereof. Service in the following manner shall constitute personal service:

(1) If the action is against a business entity, on the president, partner or other head of the entity, officer, director, or registered agent thereof. If any of the above cannot be conveniently found, service may be made by leaving a copy of the summons and complaint at any office of such business entity within this state, with the person in charge of such office;

(i) A business entity for purposes of this subdivision shall include, but not be limited to:

A. Domestic and foreign corporations;

B. Domestic and foreign partnerships;

C. Limited liability companies;

D. Entities with fictitious names; and

E. Any entity required to have a registered agent with the Secretary of State.

(2) If the action is against a public corporation within this state, service may be made as follows:

(i) Upon a county, by serving upon any county commissioner;

(ii) Upon a first or second class municipality, by serving upon the mayor or any alderman or commissioner;

(iii) Upon a third class municipality, by serving upon any trustee;

(iv) Upon an organized township, by serving upon any supervisor;

(v) Upon any school district, by serving upon any member of the school board or board of education; and

(vi) Upon a consumers power district, by serving upon any member of the board of directors;

(3) If the action is against a minor, upon a parent or person having custody, and if the minor is over the age of fourteen years, then also upon such minor personally, and in any event upon the legally appointed guardian, guardian ad litem or conservator, if there is one;

(4) If the action is against a person judicially declared to be mentally incompetent, or who is a patient at an institution for persons with mental illnesses or developmental disabilities or for whom a guardian or conservator has been legally appointed, upon such guardian or conservator, and upon the administrator or superintendent of such institutions for persons with mental illnesses or developmental disabilities, or person having custody, and also upon the person with mental illness or a developmental disability; provided that if the person with mental illness or a developmental disability is a patient of an institution for persons with mental illnesses or developmental disabilities, and the administrator or superintendent thereof shall certify in writing that service upon such person personally would be unavailing or injurious to his physical or mental well-being, and such certificate be filed, service upon such individual may be dispensed with by order of court;

(5) If the action is against the state or any of its institutions, departments, or agencies, by service upon such officer or employee as may be designated by the statute authorizing such action, and upon the attorney general. In all matters involving title to land owned or held in trust by the state or any of its institutions, departments, or agencies, upon the commissioner of school and public lands and the attorney general. In all matters other than those involving title to such lands, if no officer or employee is designated, then upon the Governor and the attorney general. Any of such officers or employees referred to in § 15-6-4 may admit service of the summons with the same legal effect as if it had been personally served upon them by an officer or elector;

(6) If the action is against a state officer, employee or agent arising out of his office, employment or agency, a copy of the summons and complaint shall be mailed, certified mail, postage prepaid to the attorney general together with an admission of service and a return envelope, postage prepaid, addressed to the sender. The executed admission of service shall be filed by the sender in accordance with § 15-6-5(d);

(7) Whenever the manner of service of process is specified in any statute or rule relating to any action, remedy or special proceedings the manner of service so specified shall be followed;

(8) In all other cases, to the defendant personally; and

(9) If the action is against a person or business entity in a foreign country, service may be made as follows:

(i) By an internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the service abroad of judicial and extrajudicial documents; or

(ii) If there is no internationally agreed means of service, service reasonably calculated to give notice may be made:

(A) In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction;

(B) As directed by the foreign authority in response to a letter rogatory or letter request; or

(C) Unless prohibited by the law of the foreign country; by delivery to the individual personally; upon a corporation, limited liability company, limited partnership or partnership or association, by delivery to an officer, or a managing, general or registered agent; or by any form of mail requiring a signed receipt; or

(iii) As directed by the court.

Service under this subdivision may be made by any person authorized by § 15-6-4(c), anyone duly authorized to serve lawful summons by the law of the country where service is to be made, pursuant to the applicable treaty or convention, or by anyone designated by order of the court or the foreign court. Proof of service may be made as prescribed in § 15-6-4(g), pursuant to the applicable treaty or convention, by order of the court, or by law of the foreign country. Proof of service by mail shall include an affidavit or certificate of addressing and mailing.

Source: SDC 1939 & Supp 1960, § 33.0807; SD RCP, Rule 4(d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1984, ch 144, § 1; SL 1986, ch 159; SL 1992, ch 60, § 2; SL 1993, ch 213, § 87; SL 2002, ch 248, § 1; SL 2003, ch 114, § 1; SL 2005, ch 287 (Supreme Court Rule 05-01), effective Feb. 25, 2005.

15-6-4(e). Service by leaving copy with resident of defendant's dwelling.

Service in the following manner shall also constitute personal service. If the defendant cannot be found conveniently, service may be made by leaving a copy at the defendant's dwelling with someone over the age of fourteen years who resides there.

Source: SDC 1939 & Supp 1960, § 33.0808; SD RCP, Rule 4 (e), as adopted by Sup. Ct. Order March 29, 1966, eff. July 1, 1966; SL 2005, ch 288 (Supreme Court Rule 05-02), eff. Feb. 25, 2005; SL 2016, ch 237 (Supreme Court Rule 15-15), eff. Jan. 1, 2016.

15-6-4(f). Service upon party not a resident of or found within state.

Whenever a statute of this state provides for the service of a legal process upon a party not a resident of or found within the state, service shall be made under the circumstances and in the manner prescribed by the statute.

Source: SD RCP, Rule 4 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-4(g). Proof of service.

Proof of the service of the summons and complaint or of any pleading, process, or other paper must state the time, place, and manner of such service or of publication and mailing and must be made as follows:

(1) If served by a sheriff or a county constable, his certificate thereof;

(2) If by any other person, his affidavit thereof;

(3) The written admission of the party or his representative upon whom service might have been made for such party;

(4) In case of publication, by affidavit of the printer, his foreman, or principal clerk or the publisher of the newspaper showing the same and an affidavit of mailing of copies as required by law; or

(5) In case of mailing, by affidavit of mailing and admission of service.

Source: SDC 1939, §§ 33.0810, 33.0816; SL 1945, ch 146; SD RCP, Rule 4 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1979, ch 11147, § 2; SL 1985, ch 159, § 2.

15-6-4(h). Amendment of process.

The court in its discretion and on such terms as it deems just may at any time allow any summons or other process or proof of service thereof to be amended, unless it clearly appears that substantial rights of the person against whom the process issued would be prejudiced thereby.

Source: SD RCP, Rule 4 (h), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-4(i). Service by mail--Admission of service--Costs.

Notwithstanding any other provision of law, a summons may be served upon a defendant in any action by mailing a copy of the summons, two copies of the notice and admission of service, conforming substantially to the form provided for in § 15-6-4(j), and a return envelope, postage prepaid, addressed to the sender. The notice and admission of service shall set forth that the failure to sign and return the admission of service within twenty days after the date of mailing without good cause will result in the court ordering the person so served to pay the costs of personal service.

Unless good cause is shown for not returning the admission of service to the sender within twenty days of mailing, the court shall order the payment of the costs of personal service to be paid by the defendant in the action.

Source: SL 1985, ch 159, § 1.

15-6-4(j). Form of notice and admission of service by mail.

The notice and admission of service provided for in § 15-6-4(i) shall be substantially in the following form:

NOTICE AND ADMISSION OF SERVICE BY MAIL

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF __________ ________ JUDICIAL CIRCUIT

_________________________, Plaintiff NOTICE AND ADMISSION OF

vs. SUMMONS/SUMMONS AND

_________________________, Defendant COMPLAINT

NOTICE

To: ____________________

The enclosed summons is served pursuant to § 15-6-4.

You must complete the admission part of this form and return one copy of the completed form to the sender within twenty days.

You must sign and date the admission. If you are served on behalf of a corporation, unincorporated association (including a partnership), or other entity, you must indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your authority.

If you do not complete and return the form to the sender within twenty days, you (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons in any other manner permitted by law.

If you do complete and return this form, you (or the party on whose behalf you are being served) must answer within thirty days. If you fail to do so, judgment by default will be taken against you for a relief demanded.

I hereby certify that this Notice and Admission of Service was mailed on ________.

__________

Signature

__________

Date of Signature

ADMISSION OF SERVICE OF SUMMONS/SUMMONS AND COMPLAINT

Personal service of the enclosed Summons/Summons and Complaint is hereby admitted by receipt of copies thereof at ________, South Dakota, this ________ day of ________, 20____.

__________

Signature

__________

Relationship to Entity/ Authority to Receive Service of Process

__________

Date of Signature

Source: SL 1985, ch 159, § 3.

15-6-5(a). Service--When required.

Except as otherwise provided in this chapter, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every written motion other than one which may be heard ex parte, and every written brief, notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in § 15-6-4.

Source: SDC 1939 & Supp 1960, § 33.0819; SD RCP, Rule 5 (a), as adopted by Sup. Ct. Order Mar. 29, 1966, eff. July 1, 1966; SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2021, ch 253 (Supreme Court Rule 21-01), eff. Feb. 23, 2021; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023.

15-6-5(b). Service--How made--Proof.

(1)Unless otherwise ordered by the court or provided by rule, whenever this chapter requires or permits service to be made upon a party represented by an attorney, the service shall be made upon the attorney.

(2)Unless otherwise ordered by the court, all documents filed with the court electronically through the Odyssey® system or served electronically through the Odyssey® system are presumed served upon all attorneys of record at the time of submission.

(3)Documents not filed with the court may be served upon an attorney by any of the following methods:

A. electronically through the Odyssey® system;

B. by electronic mail, using the email address designated by the attorney or law firm for service, or if none, the email address published in the Membership Directory of the State Bar of South Dakota;

C. by first class mail to the attorney’s last known address, which is complete upon mailing;

D. by facsimile transmission subject to the following conditions:

(i) the attorney upon whom service is made has the necessary equipment to receive such transmission;

(ii) the attorney has agreed to accept service by facsimile transmission, or has served the serving party in the same case by facsimile transmission; and

(iii) the time and manner of transmission comply with the requirements of § 15-6-6(a), unless otherwise established by the Court; or

E. by delivery to the attorney, or an employee of the attorney, at the attorney’s office.

(4) An attorney’s certificate of service, the written admission of service by the party or his attorney, or an affidavit of service are sufficient proof of service.

(5) Unless otherwise ordered by the court, service upon a party not represented by counsel must be made using one of the following methods:

A. by delivery to the party or leaving it at the party’s dwelling house or usual place of abode with some person over the age of fourteen years then residing therein;

B. by first class mail to the party’s last known address, which is complete upon mailing; or

C. if no address is known, by leaving it with the clerk of the court.

(6) The provisions of § 15-6-5 do not apply to the service of a summons or other process or of any paper to bring a party into contempt.

Source: SDC 1939 & Supp 1960, § 33.0819; SD RCP, Rule 5 (b), as adopted by Sup. Ct. Order Mar. 29, 1966, eff. July 1, 1966; SL 1991, ch 424 (Supreme Court Rule 90-01); SL 1991, ch 446 (Supreme Court Rule 91-12); SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023.

15-6-5(e). Definition--Filing with the court.

Except as specifically exempted by these rules or court order, the filing of pleadings and other papers with the court as required by this chapter must be made through the Odyssey® electronic filing system with the clerk of the court. Self-represented parties may file electronically, but are not required to file electronically. Upon leave of court, an attorney required to file electronically may be granted leave of court to file paper documents with the clerk of court. The judge may permit a party to file papers with him or her, in which event the judge must note thereon the filing date and forthwith transmit them to the office of the clerk.

Source: SDC 1939 & Supp 1960, § 33.0802; SD RCP, Rule 5 (e), as adopted by Sup. Ct. Order Mar. 29, 1966, effective July 1, 1966; SL 2004, ch 328 (Supreme Court Rule 04-01), effective July 1, 2004; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023.

15-6-5(f). Repealed.

Source: SL 1991, ch 448 (Supreme Court Rule 91-14); SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023.

15-6-5(g). Documents not to be filed--Depositions.

No depositions (except notices to take depositions), interrogatories, requests for documents, requests for admissions, and answers and responses thereto shall be filed with the clerk of the court except as provided in this section. Any such filing shall be made electronically in full-size print unless otherwise ordered by the court. Any exhibits to such documents shall be clearly identified and included as a separate electronic file or hyperlinked within the transcript file.

Any discovery materials necessary for the disposition of any motion filed with the court or referenced in any filing with the court shall be attached as an exhibit to the party's motion or as an exhibit to a declaration, affidavit, or other similar filing. Financial account information filed with the court as an exhibit under this section shall be confidential pursuant to §§ 15-15A-8 and 15-15A-9, and shall remain confidential unless and until access is granted by the court under § 15-15A-10.

If any party designated any or all of any deposition as evidence to be offered in the trial of any case, such deposition shall be filed in electronic format in its entirety with the clerk of the court at the same time as that party's designation.

Depositions used by a party only for the purpose of contradicting or impeaching the testimony of deponent as a witness, pursuant to subdivision 15-6-32(a)(1), shall not be filed unless otherwise ordered by the judge presiding at the hearing or trial.

All depositions which have been read or offered into evidence by agreement of parties, or at the trial or submission of the case to the court, shall become a permanent part of the file.

Source: SL 1997, ch 304 (Supreme Court Rule 97-1); SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2005, ch 289 (Supreme Court Rule 05-03), eff. Feb. 25, 2005; SL 2006, ch 275 (Supreme Court Rule 06-01), eff. July 1, 2006; SL 2017, ch 225 (Supreme Court Rule 17-02), eff. Jan. 19, 2017; SL 2018, ch 294 (Supreme Court Rule 18-03), eff. July 1, 2018; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023.

15-6-5(h). Civil Case Filing Statements.

Whenever a party or an attorney representing a party commences a civil action, files a notice of appearance, or files an answer or first responsive pleading in a civil action, the party or attorney representing the party shall file a completed civil case filing statement containing identifying information available to that party or attorney regarding all parties, including the adverse party, with the clerk of the court. A statement must also be filed whenever a new party is added to the action. The statement shall be available from the clerk or online at the Unified Judicial System's website. The identifying information for the filing party must be submitted on the filing statement. If the party or attorney representing a party is unable to provide the required information for the filing party, he or she may seek a waiver from the judge assigned to the action. After the information is recorded in the Unified Judicial System docketing system, the filing statement may be destroyed or kept by the clerk of the court in a nonpublic file for internal record management use by the Unified Judicial System. Access to the filed statement will only be available to court personnel or by court order.

Source: SL 2004, ch 321 (Supreme Court Rule 03-20), eff. Jan. 1, 2004; SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023.

15-6-5(i). Service of discovery requests by electronic mail or portable storage media device--Costs.

Any party or attorney serving discovery requests pursuant to § 15-6-31, § 15-6-33, § 15-6-34 or § 15-6-36 shall also, upon receipt of a written request, serve those items on the opposing party or attorney by electronic mail or on a portable storage media device. Failure to comply with such a request shall not make service invalid or extend the time to file a response, but the court shall order payment of the actual costs of reproducing the item and may award such other terms as it deems proper under § 15-6-37 unless good cause for failure to comply with the request is shown.

Source: SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023.

15-6-5(j). Repealed.

Source: SL 2009, ch 284 (Supreme Court Rule 09-05), eff. July 1, 2009; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023.

15-6-5(c). Service on numerous defendants.

In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs.

Source: SDC 1939 & Supp 1960, § 33.0819; SD RCP, Rule 5 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2004, ch 328 (Supreme Court Rule 04-01), effective July 1, 2004.

15-6-5(d). Filing of papers--Originals--Copies.

The original of all papers served upon a party or presented to any court or judge in support of any application or motion and including the summons, all pleadings, notices, demands, offers, stipulations, affidavits, written motions, briefs, memorandums of law, and orders shall, if not filed before service, be filed with the court, together with proof of such service, forthwith upon such service. The foregoing requirement of filing applies to the notice of filing of an order and the notice of entry of a judgment together with proof of service thereof, both of which shall be filed forthwith; if not filed within ten days after service thereof, the time of service shall be deemed to be the date of filing of the notice and proof of service. If papers are not to be served, they must be filed with the court at the time of their presentation to the court for any action or consideration.

Any electronic version of any paper or document shall have the same force and effect as the original. A certified copy of an original made by electronic transmission shall have the same force and effect as a certified copy of an original.

Source: SDC 1939 & Supp 1960, §§ 33.0107, 33.0802; SD RCP, Rule 5 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 4, 1972, effective Jan. 1, 1973; SL 1981, ch 379; SL 1991, ch 447 (Supreme Court Rule 91-13); SL 1992, ch 147; SL 1992, ch 366 (Supreme Court Rule 92-1); SL 1999, ch 275; SL 2000, ch 255 (Supreme Court Rule 00-1); SL 2004, ch 328 (Supreme Court Rule 04-01), effective July 1, 2004; SL 2014, ch 254 (Supreme Court Rule 13-12), eff. July 1, 2014; SL 2017, ch 224 (Supreme Court Rule 17-01), eff. Jan. 19, 2017.

15-6-6

15-6-6. Time

15-6-6(a). Computation of time.

In computing any period of time prescribed or allowed by this chapter, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule, "legal holiday" includes those holidays listed in § 1-5-1.

Service by facsimile, electronic mail transmission, and through the Odyssey7 electronic filing system must be completed by 11:59 p.m. central standard time or daylight savings time as applicable, on a weekday, which is not a legal holiday, or service shall be deemed to be made on the following weekday, which is not a legal holiday.

Source: SD RCP, Rule 6(a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1991, ch 425 (Supreme Court Rule 90-02); SL 2006, ch 276 (Supreme Court Rule 06-02), eff. July 1, 2006; SL 2009, ch 280 (Supreme Court Rule 09-01), eff. July 1, 2009; SL 2019, ch 220 (Supreme Court Rule 18-14), eff. July 1, 2018.

15-6-6(b). Enlargement of time.

When by this chapter or by a notice given thereunder or by an order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion:

(1) With or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or

(2) Upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect

but it may not extend the time for taking any action under §§ 15-6-50(b), 15-6-59(b) and (d), and 15-6-60(b), except to the extent and under the conditions stated in them.

Source: SDC 1939 & Supp 1960, § 33.0108; SD RCP, Rule 6 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-6(C)

15-6-6(c). Superseded

15-6-6(d). Time for motion--Affidavits--Briefs.

A written motion, other than one which may be heard ex parte and notice of the hearing thereof or an order to show cause shall be served not later than ten days before the time specified for the hearing, unless a different period is fixed by this chapter or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit or brief, the affidavit or brief shall be served with the motion and, except as otherwise provided in § 15-6-59(b), opposing affidavits or briefs may be served not later than five days before the hearing, unless the court permits them to be served at some other time. A reply brief or affidavit may be served by the movant not later than two days before the hearing, unless the court permits them to be served at some other time.

Source: SDC 1939 & Supp 1960, § 33.1001; SD RCP, Rule 6 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 277 (Supreme Court Rule 06-03), eff. July 1, 2006.

15-6-6(e). Additional time after service by mail--Facsimile and electronic mail transmission service exempt.

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him, or whenever such service is required to be made a prescribed period before a specified event, and the notice or paper is served by mail, three days shall be added to the prescribed period.

Service by facsimile or electronic mail transmission shall not be deemed service by mail for purposes of this section.

Source: SDC 1939 & Supp 1960, § 33.0820; SD RCP, Rule 6 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1991, ch 426 (Supreme Court Rule 90-03); SL 2009, ch 281 (Supreme Court Rule 09-02), eff. July 1, 2009.

15-6-7

15-6-7. Pleadings allowed--form of motions

15-6-7(a). Pleadings.

There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of § 15-6-14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.

Source: SDC 1939 & Supp 1960, § 33.0901; SD RCP, Rule 7 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-7(b). Motions and other papers.

(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.

(2) The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by this chapter.

(3) Exhibits and other attachments to motions are subject to the provisions of Rule 11 and the protective provisions of § 15-6-26(c).

Source: SDC 1939 & Supp 1960, § 33.1001; SD RCP, Rule 7 (b), as adopted by Supp. Ct. Order March 29, 1966, effective July 1, 1966; SL 2001, ch 295 (Supreme Court Rule 01-03); SL 2006, ch 278 (Supreme Court Rule 06-04), eff. July 1, 2006.

15-6-7(c). Demurrers, pleas, and exceptions abolished.

Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used.

Source: SDC 1939 & Supp 1960, § 33.0902; SD RCP, Rule 7 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-8

15-6-8. General rules of pleading

15-6-8(a). Claims for relief.

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain:

(1) A short and plain statement of the claim showing that the pleader is entitled to relief; and

(2) A demand for judgment for the relief to which he deems himself entitled.

Relief in the alternative or of several different types may be demanded.

Source: SDC 1939 & Supp 1960, § 33.0903; SD RCP, Rule 8 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-8(b). Defenses--Form of denials.

A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, he may do so by general denial subject to the obligations set forth in § 15-6-11.

Source: SDC 1939 & Supp 1960, § 33.0904; SD RCP, Rule 8 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-8(c). Defenses--Form of denials.

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.

Source: SDC 1939 & Supp 1960, § 33.0905; SD RCP, Rule 8 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-8(d). Effect of failure to deny.

Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

Source: SDC 1939 & Supp 1960, § 33.0906; SD RCP, Rule 8 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-8(e). Pleading to be concise and direct--Consistency.

(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

(2) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in § 15-6-11.

Source: SDC 1939 & Supp 1960, § 33.0908; SD RCP, Rule 8 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-8(f). Construction of pleadings.

All pleadings shall be so construed as to do substantial justice.

Source: SDC 1939 & Supp 1960, § 33.0915; SD RCP, Rule 8 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-9(b). Pleading fraud, mistake, condition of the mind.

In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-9

15-6-9. Pleading special matters

15-6-9(a). Pleading capacity.

It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a corporation or organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge.

Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-9(c). Pleading conditions precedent.

In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-9(d). Pleading official document or act.

In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law; and in pleading any statute or ordinance, it is sufficient to refer to the statute by its number and the ordinance by its title or number and the date of its approval.

Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-9(e). Pleading judgment.

In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-9(f). Pleading time and place.

For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.

Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (f), as adopted by Supp. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-9(g). Pleading special damage.

When items of special damage are claimed, they shall be specifically stated.

Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-9(h). Unknown party--How designated in pleadings and process.

When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered the process and all pleadings and proceedings in the action shall be amended by substituting the true name.

Source: SDC 1939 & Supp 1960, § 33.0401; SD RCP, Rule 9 (h), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-9(i). Complaint in action for libel or slander.

In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose, but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff, and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken.

Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (i), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-10

15-6-10. Form of pleadings

15-6-10(a). Caption--Names of parties.

Every pleading shall have a caption setting forth the name of the court and the county in which the action is brought, the title of the action, and a designation as in § 15-6-7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.

Source: SDC 1939 & Supp 1960, § 33.0908; SD RCP, Rule 10 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-10(b). Paragraphs--Separate statements.

All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.

Source: SDC 1939 & Supp 1960, § 33.0908; SD RCP, Rule 10 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-10(c). Adoption by reference--Exhibits.

Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

Source: SDC 1939 & Supp 1960, § 33.0908; SD RCP, Rule 10 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-10(d). Roman numerals--Use--Restrictions.

Roman numerals may not be used to number paragraphs in pleadings. The use of Roman numerals in pleadings is restricted to use in conjunction with persons' names and in lower case use in prefaces, forewords, prologues, and epilogues.

Source: SL 1998, ch 310.

15-6-10(e). Formatting of pleadings.

All pleadings, motions, orders and other papers filed with the court, with the exception of exhibits, shall be typewritten or hand printed in a clear and legible manner, no smaller than 12 point type; on one side only of white, unglazed, opaque paper of good texture, eight and one-half inches wide and eleven inches long; and consecutively numbered at the bottom center of each page.

Source: SL 2013, ch 267, § 1 (Supreme Court Rule 13-06), eff. Feb. 14, 2013.

15-6-11

15-6-11. Signing of Pleadings

15-6-11(a). Signature.

Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

Source: SDC 1939 & Supp 1960, § 33.0909; SD RCP, Rule 11, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1986, ch 160, § 1; SL 2001, ch 296 (Supreme Court Rule 01-04); SL 2006, ch 279 (Supreme Court Rule 06-05), eff. July 1, 2006.

15-6-11(b). Representations to court.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) It is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Source: SDC 1939 & Supp 1960, § 33.0909; SD RCP, Rule 11, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1986, ch 160, § 1; SL 2001 ch 297 (Supreme Court Rule 01-05); SL 2006, ch 280 (Supreme Court Rule 06-06), eff. July 1, 2006.

15-6-11(c). Sanctions.

If, after notice and a reasonable opportunity to respond, the court determines that § 15-6-11(b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated § 15-6-11(b) or are responsible for the violation.

(1) How Initiated.

(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate § 15-6-11(b). It shall be served as provided in § 15-6-5, but shall not be filed with or presented to the court unless, within twenty-one days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate § 15-6-11(b) and directing an attorney, law firm, or party to show cause why it has not violated § 15-6-11(b) with respect thereto.

(2) Nature of Sanctions; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.

(A) Monetary sanctions may not be awarded against a represented party for a violation of § 15-6-11(b)(2).

(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.

Source: SDC 1939 & Supp 1960, § 33.0909; SD RCP, Rule 11, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1986, ch 160, § 1; SL 2006, ch 281 (Supreme Court Rule 06-07), eff. July 1, 2006.

15-6-11(d). Inapplicability to discovery.

Sections 15-6-11(a) through 15-6-11(c) do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of §§ 15-6-26 through 15-6-37.

Source: SDC 1939 & Supp 1960, § 33.0909; SD RCP, Rule 11, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1986, ch 160, § 1; SL 2006, ch 282 (Supreme Court Rule 06-08), eff. July 1, 2006.

15-6-11(e). Appeal to Supreme Court--Award of attorneys' fees and costs on appeal.

The Supreme Court shall consider all appeals pursuant to §§ 15-6-11(a) through 15-6-11(d) without any presumption of the correctness of the trial court's findings of fact and conclusions of law. Reasonable attorneys' fees and costs shall be awarded to the successful party on appeal.

Source: SL 2006, ch 283 (Supreme Court Rule 06-09), eff. July 1, 2006.

15-6-12

15-6-12. Defenses and objections

15-6-12(a). Time for presenting defenses and objections.

A defendant shall serve the answer within thirty days after the service of the complaint upon defendant, except when otherwise provided by statute or rule. A party served with a pleading stating a cross-claim shall serve an answer within twenty days after the service. The plaintiff shall serve a reply to a counterclaim in the answer within twenty days after service of the answer or, if a reply is ordered by the court, within twenty days after service of the order, unless the order otherwise directs. The service of a motion permitted under § 15-6-12 alters these periods of time as follows, unless a different time is fixed by order of the court:

(1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after notice of the court's action;

(2) If the court grants a motion for a more definite statement, the responsive pleading shall be served within ten days after the service of the more definite statement;

(3) If an appeal is taken from an order sustaining a motion to dismiss and such order is thereafter reversed, the responsive pleading shall be served within twenty days after the judgment or order of reversal is filed in the trial court.

Source: SDC 1939 & Supp 1960, § 33.0907; SD RCP, Rule 12 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 284 (Supreme Court Rule 06-10), eff. July 1, 2006.

15-6-12(b). Manner of presenting defenses and objections.

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(1) Lack of jurisdiction over the subject matter;

(2) Lack of jurisdiction over the person;

(3) Insufficiency of process;

(4) Insufficiency of service of process;

(5) Failure to state a claim upon which relief can be granted;

(6) Failure to join a party under § 15-6-19.

A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in § 15-6-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by § 15-6-56.

Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 2006, ch 285 (Supreme Court Rule 06-11), eff. July 1, 2006.

15-6-12(c). Motion for judgment on the pleadings.

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in § 15-6-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by § 15-6-56.

Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-12(d). Preliminary hearings.

The defenses specifically enumerated in subdivisions 15-6-12(b)(1) to (6), whether made in a pleading or by motion, and the motion for judgment mentioned in § 15-6-12(c) shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-12(e). Motion for more definite statement.

If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within ten days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just.

Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 286 (Supreme Court Rule 06-12), eff. July 1, 2006.

15-6-12(f). Motion to strike.

Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-12(g). Consolidation of defenses in motion.

A party who makes a motion under § 15-6-12 may join with it any other motions herein provided for and then available to him. If a party makes a motion under § 15-6-12 but omits therefrom any defense or objection then available to him which § 15-6-12 permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision 15-6-12(h)(2) on any of the grounds there stated.

Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-12(h). Waiver or preservation of certain defenses.

(1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in § 15-6-12(g), or (B) if it is neither made by motion under § 15-6-12 nor included in a responsive pleading or an amendment thereof permitted by § 15-6-15(a) to be made as a matter of course.

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under § 15-6-19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under § 15-6-7(a), or by motion for judgment on the pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (h), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-13

15-6-13. Counterclaim and cross-claim

15-6-13(a). Compulsory counterclaims.

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if:

(1) At the time the action was commenced the claim was the subject of another pending action; or

(2) The opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under § 15-6-13; or

(3) If the claim is not one over which the court would have jurisdiction if brought as an original action.

Source: SDC 1939 & Supp 1960, § 33.0911; SD RCP, Rule 13 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-13(b). Permissive counterclaims.

A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim.

Source: SDC 1939 & Supp 1960, § 33.0911; SD RCP, Rule 13 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-13(c). Counterclaim exceeding opposing claim.

A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party.

Source: SD RCP, Rule 13 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-13(d). Counterclaim against the State of South Dakota.

This chapter shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the State of South Dakota or an officer or agency thereof.

Source: SD RCP, Rule 13 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-13(e). Counterclaim maturing or acquired after pleading.

A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by a supplemental pleading.

Source: SD RCP, Rule 13 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-13(f). Omitted counterclaim.

When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.

Source: SD RCP, Rule 13 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-13(g). Cross-claim against co-party.

A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

Source: SDC 1939 & Supp 1960, § 33.0912; SD RCP, Rule 13 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-13(h). Joinder of additional parties.

Persons other than those made parties to the original action may be made parties to a counterclaim or cross-claim in accordance with the provisions of §§ 15-6-19 and 15-6-20.

Source: SD RCP, Rule 13 (h), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-13(i). Separate trials--Separate judgments.

If the court orders separate trials as provided in § 15-6-42(b) judgment on counterclaim or cross-claim may be rendered in accordance with the terms of § 15-6-54(b), when the court has jurisdiction so to do, even if the claims of the opposing parties have been dismissed or otherwise disposed of.

Source: SD RCP, Rule 13 (i), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 1.

15-6-14

15-6-14. Third-party practice

15-6-14(a). When defendant may bring in third party.

At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to make the service if he serves the third-party complaint not later than ten days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff's claim as provided in § 15-6-12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in § 15-6-13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third-party plaintiff, and the third-party defendant thereupon shall assert his defenses as provided in § 15-6-12 and his counterclaims and cross-claims as provided in § 15-6-13. Any party may move to strike the third-party claim, or for its severance or separate trial. A third-party defendant may proceed under § 15-6-14 against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant. The court may render such judgments, one or more in number, as may be suitable. As among joint tort-feasors against whom a judgment has been entered in a single action, the provisions of § 15-8-15 apply only if the issue of proportionate fault is litigated between them by cross-claim, counterclaim, or third-party claim in that action.

Source: SL 1945, ch 167, § 7; SDC Supp 1960, § 33.04A08; SD RCP, Rule 14 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 1976, ch 147.

15-6-14(b). When plaintiff may bring in third party.

When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under § 15-6-14(a) would entitle a defendant to do so.

Source: SL 1945, ch 167, § 7; SDC Supp 1960, § 33.04A08; SD RCP, Rule 14 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-15

15-6-15. Amended and supplemental pleadings

15-6-15(a). Amendments to pleadings.

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has neither been placed upon the trial calendar, nor an order made setting a date for trial, he may so amend it at any time within twenty days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

Source: SDC 1939 & Supp 1960, § 33.0914; SD RCP, Rule 15 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-15(b). Amendments to conform to the evidence.

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

Source: SDC 1939 & Supp 1960, § 33.0914; SD RCP, Rule 15 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-15(c). Relation back of amendments to pleadings.

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment:

(1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and

(2) Knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Source: SD RCP, Rule 15 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-15(d). Supplemental pleadings.

Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.

Source: SDC 1939 & Supp 1960, § 33.0913; SD RCP, Rule 15 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-16. Pretrial procedure--Formulating issues.

Prior to the trial of any action, the court, either on its own motion or the motion of any party, shall, after consulting with the attorneys for the parties and any unrepresented parties, enter a scheduling order that limits the time:

(1) To join other parties and to amend the pleadings;

(2) To file and hear motions;

(3) To complete discovery;

(4) The date or dates for conference before trial, final pretrial conference and trial;

(5) Any other matters appropriate to the circumstances of the case.

A schedule shall not be modified except by leave of the judge upon a showing of good cause.

Source: SDC 1939 & Supp 1960, § 33.1003; SD RCP, Rule 16, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 80-15; SL 1993, ch 384 (Supreme Court Rule 93-1).

15-6-17

15-6-17. Parties plaintiff and defendant--capacity

15-6-17(a). Real party in interest.

Every action shall be prosecuted in the name of the real party in interest. A personal representative, guardian, conservator, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought; and when a statute of the state so provides, an action for the use or benefit of another shall be brought in the name of the state. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Source: SDC 1939 & Supp 1960, § 33.0402; SD RCP, Rule 17 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 1993, ch 213, § 88.

15-6-17(b). Capacity to sue or be sued.

When two or more persons associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may sue or be sued by such common name, the summons in such cases being served on one or more of the associates. The judgment in the action shall bind the joint property of all the associates, and the individual property of the party or parties served with process, in the same manner as if all had been named defendants and had been sued upon their joint liability.

Source: SDC 1939 & Supp 1960, § 33.0408; SD RCP, Rule 17 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-17(c). Representation of minors or incompetent persons.

Whenever a minor or incompetent person has a guardian or conservator, such guardian or conservator may sue or defend on behalf of the minor or incompetent person. If the minor or incompetent person does not have a guardian or conservator, he may sue by a guardian ad litem. The court shall appoint a guardian ad litem for a minor or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the minor or incompetent person and may make such appointment notwithstanding an appearance by a guardian or conservator. Unless the court otherwise orders, no guardian ad litem shall be permitted to receive any money or other property of his ward except costs and expenses allowed to such guardian ad litem by the court or recovered by the ward in the action until such guardian ad litem has given sufficient security approved by the court to account for and apply such money or property under direction of the court. Such guardian ad litem may with the approval of the court settle or compromise in behalf of his ward, the case in which he is appearing and any judgment entered therein.

Source: SDC 1939 & Supp 1960, §§ 33.0405 to 33.0407; SD RCP, Rule 17 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1993, ch 213, § 89.

15-6-18

15-6-18. Joinder of claims and remedies

15-6-18(a). Joinder of claims.

A party asserting a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim, may join either as independent or as alternate claims, as many claims, legal or equitable, as he has against an opposing party.

Source: SDC 1939 & Supp 1960, § 33.0916; SD RCP, Rule 18 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-18(b). Joinder of remedies--Fraudulent conveyances.

Whenever a claim is one heretofore cognizable only after another claim has been prosecuted to a conclusion, the two claims may be joined in a single action; but the court shall grant relief in that action only in accordance with the relative substantive rights of the parties. In particular, a plaintiff may state a claim for money and a claim to have set aside a conveyance fraudulent as to him, without first having obtained a judgment establishing the claim for money.

Source: SD RCP, Rule 18 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-19

15-6-19. Joinder of persons needed for just adjudication

15-6-19(a). Persons to be joined if feasible.

A person who is subject to service of process shall be joined as a party in the action if:

(1) In his absence complete relief cannot be accorded among those already parties; or

(2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.

Source: SDC 1939 & Supp 1960, § 33.0410; SD RCP, Rule 19 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-19(b). Determination by court whenever joinder not feasible.

If a person as described in subdivisions 15-6-19(a)(1) and (2) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Source: SD RCP, Rule 19 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-19(c). Pleading reasons for nonjoinder.

A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivisions 15-6-19(a)(1) and (2) who are not joined and the reasons why they are not joined.

Source: SD RCP, Rule 19 (c) as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-19(d). Exception of class actions.

Section 15-6-19 is subject to the provisions of § 15-6-23.

Source: SD RCP, Rule 19 (d), as adopted by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-20

15-6-20. Permissive joinder of parties

15-6-20(a). Permissive joinder.

All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

Source: SDC 1939 & Supp 1960, § 33.0409; SD RCP, Rule 20 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-20(b). Separate trials.

The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and who asserts no claim against him, and may order separate trials or make other orders to prevent delay or prejudice.

Source: SDC 1939 & Supp 1960, § 33.1305; SD RCP, Rule 20 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-21. Misjoinder and nonjoinder of parties.

Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

Source: SDC 1939 & Supp 1960, § 33.0411; SD RCP, Rule 21, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-22. Interpleader.

Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants. A defendant exposed to similar liability may obtain such interpleader by way of cross-claim or counterclaim. The provisions of this section supplement and do not in any way limit the joinder of parties permitted in § 15-6-20.

Source: SDC 1939 & Supp 1960, § 33.0412; SD RCP, Rule 22, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-23

15-6-23. Class actions

15-6-23(a). Prerequisites to a class action.

One or more members of a class may sue or be sued as representative parties on behalf of all only if:

(1) The class is so numerous that joinder of all members is impracticable;

(2) There are questions of law or fact common to the class;

(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class;

(4) The representative parties will fairly and adequately protect the interests of the class; and

(5) The suit is not against this state for the recovery of a tax imposed by chapter 10-39, 10-39A, 10-43, 10-44, 10-45, 10-46, 10-46A, 10-46B, or 10-52.

Source: SDC 1939 & Supp 1960, § 33.0410; SD RCP, Rule 23 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 1982, ch 99, § 9; SL 1985, ch 15, § 31.

15-6-23(b). Class actions maintainable.

An action may be maintained as a class action if the prerequisites of § 15-6-23(a) are satisfied, and in addition:

(1) The prosecution of separate actions by or against individual members of the class would create a risk of:

(A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or

(B) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate permanent injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:

(A) The interest of members of the class in individually controlling the prosecution or defense of separate actions;

(B) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(D) The difficulties likely to be encountered in the management of a class action.

Source: SD RCP, Rule 23 (b), as adopted by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 1978, ch 155, § 1.

15-6-23(c). Determination by order whether class action to be maintained--Notice--Judgment--Actions conducted partially as class actions.

(1) As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this section may be conditional, and may be altered or amended before the decision on the merits.

(2) In any class action maintained under subdivision 15-6-23(b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.

(3) The judgment in an action maintained as a class action under subdivision 15-6-23(b)(1) or (2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision 15-6-23(b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (2) of this section was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

(4) When appropriate (A) an action may be brought or maintained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of § 15-6-23 shall then be construed and applied accordingly.

Source: SD RCP, Rule 23 (c), as adopted by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-23(d). Orders in conduct of actions.

In the conduct of actions to which § 15-6-23 applies, the court may make appropriate orders:

(1) Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;

(2) Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;

(3) Imposing conditions on the representative parties or on intervenors;

(4) Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;

(5) Dealing with similar procedural matters.

The orders may be combined with an order under § 15-6-16, and may be altered or amended as may be desirable from time to time.

Source: SD RCP, Rule 23 (d), as adopted by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-23(e). Dismissal or compromise of class actions.

A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

Source: SD RCP, Rule 23 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-23(c); SD RCP, Rule 23 (e) as adopted by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-23.1. Derivative actions by unincorporated associations.

In a derivative action brought by one or more members to enforce a right of an unincorporated association, the association having failed to enforce a right which may properly be asserted by it, the complaint shall be verified and shall allege

(1) That the plaintiff was a member at the time of the transaction of which he complains or that his membership thereafter devolved on him by operation of law, and

(2) That the action is not a collusive one to confer jurisdiction on a court of the state which it would not otherwise have.

The complaint shall also allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the members, and the reasons for his failure to obtain the action or for not making the effort. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the members similarly situated in enforcing the right of the association. The action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to members in such manner as the court directs.

Source: SD RCP, Rule 23(b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-23(b); SD RCP, Rule 23.1, as added by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 2006, ch 287 (Supreme Court Rule 06-13), eff. July 1, 2006.

15-6-23.2. Actions relating to unincorporated associations.

An action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties may be maintained only if it appears that the representative parties will fairly and adequately protect the interests of the association and its members. In the conduct of the action the court may make appropriate orders corresponding with those described in § 15-6-23(d), and the procedure for dismissal or compromise of the action shall correspond with that provided in § 15-6-23(e).

Source: SD RCP, Rule 23.2, as adopted by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-24

15-6-24. Intervention

15-6-24(a). Intervention of right.

Upon timely application anyone shall be permitted to intervene in an action:

(1) When a statute of the state confers an unconditional right to intervene; or

(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Source: SDC 1939 & Supp 1960, § 33.0413; SD RCP, Rule 24 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-24(b). Permissive intervention.

Upon timely application anyone may be permitted to intervene in an action when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

Source: SD RCP, Rule 24 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-24(c). Procedure for intervention.

A person desiring to intervene shall serve a motion to intervene upon the parties as provided in § 15-6-5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute gives a right to intervene.

When the constitutionality of an act of the Legislature affecting the public interest is drawn in question in any action to which the state or an officer, agency, or employee of the state is not a party, the party asserting the unconstitutionality of the act shall notify the attorney general thereof within such time as to afford him the opportunity to intervene.

Source: SDC 1939 & Supp 1960, § 33.0413; SD RCP, Rule 24 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-25

15-6-25. Substitution of parties

15-6-25(a). Death of party.

(1) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in § 15-6-5 and upon persons not parties in the manner provided in § 15-6-4 for the service of a summons. Unless the motion for substitution is made not later than ninety days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

(2) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in an action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.

Source: SDC 1939 & Supp 1960, § 33.0414; SD RCP, Rule 25 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-25(b). Incompetency of party.

If a party becomes incompetent, the court upon motion served as provided in § 15-6-25(a) may allow the action to be continued by or against his guardian, conservator, or guardian ad litem.

Source: SDC 1939 & Supp 1960, § 33.0414; SD RCP, Rule 25 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1993, ch 213, § 90.

15-6-25(c). Transfer of party's interest.

In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in § 15-6-25(a).

Source: SDC 1939 & Supp 1960, § 33.0414; SD RCP, Rule 25 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-25(d). Officer as party--Death or separation from office.

(1) When a public officer, officer of a private corporation as such, personal representative or trustee is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(2) When such officer sues or is sued in his official capacity, he may be described as a party by his official title rather than by name; but the court may require his name to be added.

Source: SDC 1939 & Supp 1960, § 33.0414; SD RCP, Rule 25 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-25(e). Judgment for possession of real property--Successor in interest--Revival.

When a judgment is recovered for the possession of real property and the party recovering such judgment shall have died subsequent to the recovery thereof, his successor in interest in said real property, whether by grant, devise, or inheritance, may revive said judgment and enforce the same by execution on motion, within one year after said death, or afterwards on supplemental complaint.

Source: SDC 1939 & Supp 1960, § 33.0414; SD RCP, Rule 25 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-25.1. Dismissal of parties--Subsequent pleadings.

If a party is dismissed or dropped from a multiparty civil action by order of the court, the name of the dismissed or dropped party may not appear on subsequent pleadings.

Source: SL 1989, ch 174.

15-6-26. Discovery pending action

15-6-26(a). Discovery methods.

Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under § 15-6-26(c), the frequency of use of these methods is not limited.

Source: Supreme Court Rule 76-3, § 2.

15-6-26(b). Scope of discovery.

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:

(1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

The frequency or extent of use of the discovery methods set forth in § 15-6-26(a) shall be limited by the court if it determines that:

(A)(i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or

(iii) discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy limitations on the party's resources, and the importance of the issues at stake in the litigation.

The court may act upon its own initiative after reasonable notice or pursuant to a motion under § 15-6-26(c).

(2) Insurance agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement.

(3) Trial preparation: materials. Subject to the provisions of subdivision (4) of this section, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (1) of this section and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including such other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a person not a party may obtain without the required showing a statement concerning the action or its subject matter previously made by that person. If the request is refused, the person may move for a court order. The provisions of subdivision 15-6-37(a)(4) apply to award of expenses incurred in relation to the motion. For purposes of this paragraph, a statement previously made is (A) a written statement signed or otherwise adopted or approved by the person making it, or (B) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.

(4) Trial preparation: experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (1) of this rule and acquired or developed in anticipation of litigation or for trial may be obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. A party may also take the testimony of each such expert witness by deposition upon oral examination.

(ii) Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (4)(C) of this section, concerning fees and expenses as the court may deem appropriate.

(B) Trial-preparation for draft reports or disclosures. Subdivision 15-6-26(b)(3) protects drafts of any report prepared by any witness who is retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involves giving expert testimony, regardless of the form in which the draft is recorded.

(C) Trial preparation protection for communication between a party's attorney and expert witnesses. Subdivision 15-6-26(b)(3) protects communications between the party's attorney and any witness who is retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony, regardless of the form of the communications, except to the extent that the communications:

(i) Relate to compensation for the expert's study or testimony;

(ii) Identify facts or data that the party's attorney provided and that the expert considered in forming the opinion to be expressed; or

(iii) Identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.

(D) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in § 15-6-35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(E) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (4)(A)(ii) and (4)(B) of this section; and (ii) with respect to discovery obtained under subdivision (4)(A) (ii) of this section the court may require, and with respect to discovery obtained under subdivision (4)(B) of this section the court shall require, the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

(5) Claims of privilege or protection of trial preparation materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

Source: SDC 1939 & Supp 1960, § 36.0505; SD RCP, Rule 26 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 2; SL 1993, ch 385 (Supreme Court Rule 93-2); SL 2006, ch 288 (Supreme Court Rule 06-14), eff. July 1, 2006; SL 2011, ch 244 (Supreme Court Rule 11-01), eff. July 1, 2011; SL 2021, ch 254 (Supreme Court Rule 21-02), eff. Feb. 23, 2021.

15-6-26(c). Protective orders.

Upon motion by a party or by the person from whom discovery is sought or has been taken, or other person who would be adversely affected, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending, on matters relating to a deposition, interrogatories, or other discovery, or alternatively, the court in the circuit where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) That the discovery not be had;

(2) That the discovery may be had only on specified terms and conditions, including a designation of the time and place;

(3) That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

(4) That certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5) That discovery be conducted with no one present except persons designated by the court;

(6) That a deposition after being sealed be opened only by order of the court;

(7) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

(8) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;

(9) That depositions, interrogatories, admissions, other discovery, documents, and exhibits attached to motions, or portions of such documents, be sealed unless and until opened at the direction of the court.

If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of subdivision 15-6-37(a)(4) apply to the award of expenses incurred in relation to the motion.

Source: SDC 1939 & Supp 1960, § 36.0516; SD RCP, Rule 30 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-30(b); Supreme Court Rule 76-3, § 2; SL 2001, ch 298 (Supreme Court Rule 01-06); SL 2006, ch 289 (Supreme Court Rule 06-15), eff. July 1, 2006.

15-6-26(d). Sequence and timing of discovery.

Unless the court upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.

Source: Supreme Court Rule 76-3, § 2.

15-6-26(e). Supplementation of responses.

A party who has responded to a request for discovery with a response that was complete when made is under a duty to supplement or correct the response to include information thereafter acquired if ordered by the court or in the following circumstances:

(1) A party is under a duty to supplement at appropriate intervals the party's response to a discovery request authorized under subdivision (a) if the party learns that in some material respect the response is incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing. With respect to testimony of an expert, the duty extends to information contained in any expert report, discovery response concerning expert's opinions and any deposition of the expert.

(2) A party is under a duty seasonably to amend a prior response to an interrogatory, request for production, or request for admission if the party learns that the response is in some material respect incomplete or incorrect and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.

(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.

Source: Supreme Court Rule 76-3, § 2; SL 2006, ch 290 (Supreme Court Rule 06-16), eff. July 1, 2006.

15-6-26(F)

15-6-26(f). Superseded

15-6-27

15-6-27. Depositions before action or pending appeal

15-6-27(a). Depositions before action.

(1) Petition. A person who desires to perpetuate the person's own testimony or that of another person regarding any matter that may be cognizable in any court of this state may file a verified petition in the circuit court in any county which would be the proper place of trial of such matter. The petition shall be entitled in the name of the petitioner and shall show:

(A) That the petitioner expects to be a party to an action cognizable in a court of this state but is presently unable to bring it or cause it to be brought;

(B) The subject matter of the expected action and the petitioner's interest therein;

(C) The facts which the petitioner desires to establish by the proposed testimony and the petitioner's reasons for desiring to perpetuate it;

(D) The names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known; and

(E) The names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each;

and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

(2) Notice and Service. The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition. At least twenty days before the date of hearing the notice shall be served either within or without the state in the manner provided in § 15-6-4(d) for service of summons, but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service by publication or otherwise and shall appoint, for persons not served in the manner provided in § 15-6-4(d), an attorney who shall represent them, and in case they are not otherwise represented, shall cross-examine the deponent. If any expected adverse party is a minor or incompetent the provisions of § 15-6-17(c) apply.

(3) Order and Examination. If the court is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories. The depositions may then be taken in accordance with this chapter; and the court may make orders of the character provided for by §§ 15-6-34 and 15-6-35. For the purpose of applying this chapter to depositions for perpetuating testimony, each reference therein to the court in which the action is pending shall be deemed to refer to the court in which the petition for such deposition was filed.

(4) Use of Deposition. If a deposition to perpetuate testimony is taken under this chapter or if, although not so taken, it would be admissible in evidence in the courts of the state in which it is taken, or the courts of the United States, it may be used in any action involving the same subject matter subsequently brought in a court of this state, in accordance with the provisions of § 15-6-32(a).

Source: SDC 1939 & Supp 1960, §§ 36.0524 to 36.0527; SD RCP, Rule 27 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 3; SL 2006, ch 291 (Supreme Court Rule 06-17), eff. July 1, 2006.

15-6-27(b). Depositions pending appeal.

If an appeal has been taken from a judgment of a trial court of record or before the taking of an appeal if the time therefor has not expired, the court in which the judgment was rendered may allow the taking of the depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in such court for leave to take the depositions, upon the same notice and service thereof as if the action was pending therein. The motion shall show:

(1) The names and addresses of the persons to be examined and the substance of the testimony which the party expects to elicit from each;

(2) The reasons for perpetuating their testimony.

If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken and may make orders of the character provided for by §§ 15-6-34 and 15-6-35, and thereupon the depositions may be taken and used in the same manner and under the same conditions as are prescribed in this chapter for depositions taken in pending actions.

Source: SDC 1939 & Supp 1960, § 36.0528; SD RCP, Rule 27 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 292 (Supreme Court Rule 06-18), eff. July 1, 2006.

15-6-27(c). Perpetuation of testimony by action.

Section 15-6-27 does not limit the power of a court to entertain an action to perpetuate testimony.

Source: SDC 1939 & Supp 1960, § 36.0529; SD RCP, Rule 27 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-28

15-6-28. Persons before whom depositions may be taken

15-6-28(a). Taking depositions within the United States.

Within the United States or within a territory or insular possession subject to the jurisdiction of the United States, depositions shall be taken before an officer authorized to administer oaths by the laws of this state, the United States or of the place where the examination is held, or before a person appointed by the court in which the action is pending. A person so appointed has power to administer oaths and take testimony. The term officer as used in §§ 15-6-30, 15-6-31, and 15-6-32 includes a person appointed by the court or designated by the parties under § 15-6-29.

Source: SDC 1939, §§ 36.0510, 36.0530; SL 1959, ch 237; SD RCP, Rule 28(a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 86-3.

15-6-28(b). Taking depositions in foreign countries.

In a foreign country, depositions may be taken:

(1) Pursuant to any applicable treaty or convention;

(2) Pursuant to a letter of request (whether or not captioned a letter rogatory);

(3) On notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States; or

(4) Before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony.

A commission or a letter of request shall be issued on application and notice and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter of request that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter of request may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter of request may be addressed "To the Appropriate Authority in (here name the country)." When a letter of request or any other device is used pursuant to any applicable treaty or convention, it shall be captioned in the form prescribed by that treaty or convention. Evidence obtained in response to a letter of request need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under this chapter.

Source: SDC 1939 & Supp 1960, § 36.0510; SD RCP, Rule 28 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 293 (Supreme Court Rule 06-19), eff. July 1, 2006.

15-6-28(c). Disqualification to take deposition for interest.

No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action.

An employee, as described above, includes a person who has a contractual relationship with a person or entity interested in the outcome of the litigation, including anyone who may ultimately be responsible for payment to provide reporting or other court services, and a person who is employed part-time or full-time under contract or otherwise by a person who has a contractual relationship with a party to provide reporting or other court services.

The officer taking the deposition, or any other person with whom such officer has a principal and agency relationship, shall not enter into an agreement for reporting service which does any of the following:

(1) Requires or allows the court reporter reporting the deposition to relinquish control of an original deposition transcript and copies of the transcript before it is certified and delivered to the custodial attorney as required in § 15-6-30(f)(1);

(2) Requires the court reporter to provide special financial terms or other services that are not offered at the same time and on the same terms to all other parties in the litigation, or in any way offers any incentives or rewards to the attorneys, parties to the litigation, or to anyone else who has an interest in the litigation;

(3) Gives an exclusive monetary or other advantage to any party;

(4) Compromises the authenticity of the record or the impartiality of the court reporter, or that may result in the appearance that the authenticity of the record or the impartiality of the court reporter has been compromised;

(5) Allows a person, other than the court reporter or firm, to establish the rates charged by the court reporter or firm;

(6) Includes the court reporter, entity or firm providing or arranging for court reporting services on any list of preferred providers of court reporting services that is maintained by any person, entity or firm that has entered into an oral or written contractual agreement for more than one case with any attorney, party to an action, insurance company, third-party administrator, or any other person or entity that has a financial interest in the case;

(7) Requires the noticing attorney to utilize a specified court reporter, entity or firm, or requires the noticing attorney to act in a manner that may lead to violation of any provision; or

(8) Restricts said attorney from reimbursement for such court reporting services.

Contracts for court reporting services for federal, state, or local governments and subdivisions thereof are excluded. Negotiating or bidding reasonable fees, equal to all parties, by the attorneys or the parties, with the court reporter of their choice, on a case-by-case basis is not prohibited.

These provisions may not be waived by disclosure, agreement, stipulation, or by any other means unless a request for waiver is contained in the notice of deposition.

Any deposition taken in violation of these provisions shall be considered void.

Source: SDC 1939 & Supp 1960, § 36.0510; SD RCP, Rule 28 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2000, ch 256 (Supreme Court Rule 00-2); SL 2014, ch 262 (Supreme Court Rule 14-03), eff. July 1, 2014.

15-6-28.1. Interstate depositions and discovery.

Sections 15-6-28.1 to 15-6-28.6, inclusive, shall govern depositions and discovery conducted in South Dakota in connection with a civil lawsuit brought in another state.

Source: SL 2012, ch 256 (Supreme Court Rule 12-02), eff. July 1, 2012.

15-6-28.2. Definitions.

In §§ 15-6-28.1 to 15-6-28.6, inclusive:

(1) "Foreign jurisdiction" means a state other than this state.

(2) "Foreign subpoena" means a subpoena issued under authority of a court of record of a foreign jurisdiction.

(3) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.

(4) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(5) "Subpoena" means a document, however denominated, issued under authority of a court of record requiring a person to:

(a) Attend and give testimony at a deposition;

(b) Produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or

Source: SL 2012, ch 256 (Supreme Court Rule 12-02), eff. July 1, 2012.

15-6-28.3. Issuance of subpoena for interstate depositions and discovery.

(A) To request issuance of a subpoena under §§ 15-6-28.1 to 15-6-28.6, inclusive, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under §§ 15-6-28.1 to 15-6-28.6, inclusive, does not constitute an appearance in the courts of this state. It does create the necessary jurisdiction in the State of South Dakota to:

(i) Enforce the subpoena;

(ii) Quash or modify the subpoena;

(iii) Issue any protective order or resolve any other dispute relating to the subpoena;

(iv) Impose sanctions on the attorney requesting the issuance of the subpoena for any action which would constitute a violation of the South Dakota Rules of Civil Procedure.

An attorney who is not licensed to practice law in the State of South Dakota may petition the courts of this state to enforce or resolve any other dispute relating to a subpoena issued under this section, or may respond in the courts of this state to any petition or motion relating to the subpoena filed by any other person, without being admitted pro hac vice.

(B) When a party submits a foreign subpoena to a clerk of court in this state, the clerk shall promptly issue a subpoena for service upon the person to whom the foreign subpoena is directed.

(i) Conform to the requirements of the South Dakota Rules of Civil Procedure, including § 15-6-45, but may otherwise incorporate the terms used in the foreign subpoena so long as they conform to the South Dakota Rules of Civil Procedure;

(ii) Advise the person to whom the subpoena is directed that such a person has a right to petition the South Dakota court to quash or modify the subpoena under § 15-6-45(b); and

(iii) Contain or be accompanied by the names, addresses, and telephone numbers, of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.

Source: SL 2012, ch 256 (Supreme Court Rule 12-02), eff. July 1, 2012.

15-6-28.4. Service of subpoena for interstate depositions and discovery.

A subpoena issued by a clerk of court under §§ 15-6-28.1 to 15-6-28.6, inclusive, must be served in compliance with § 15-6-45(c).

Source: SL 2012, ch 256 (Supreme Court Rule 12-02), eff. July 1, 2012.

15-6-28.5. Deposition, production, inspection, witness fees, expenses, place of examination, attendance where required.

All other provisions of § 15-6-45 shall also apply to subpoenas issued under §§ 15-6-28.1 to 15-6-28.6, inclusive.

Source: SL 2012, ch 256 (Supreme Court Rule 12-02), eff. July 1, 2012.

15-6-28.6. Application to court.

An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under §§ 15-6-28.1 to 15-6-28.6, inclusive, must comply with the rules or laws of South Dakota and be submitted to the court in the county in which discovery is to be conducted.

Source: SL 2012, ch 256 (Supreme Court Rule 12-02), eff. July 1, 2012.

15-6-29. Stipulations regarding the taking of depositions.

If the parties so stipulate in writing, depositions may be taken before any person, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions.

Source: SDC 1939 & Supp 1960, § 36.0512; SD RCP, Rule 29, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-30

15-6-30. Depositions upon oral examinations

15-6-30(a). When depositions may be taken.

After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of thirty days after service of the summons and complaint upon any defendant, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if special notice is given as provided in subdivision 15-6-30(b)(2).

The attendance of witnesses may be compelled by subpoena as provided in § 15-6-45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. The deposition of a person who has already been deposed in the case may only be taken with the consent of the deponent and parties, or by leave of court.

Source: SDC 1939 & Supp 1960, §§ 36.0501, 36.0511; SD RCP, Rule 26(a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(a); Supreme Court Rule 76-3, § 4; SL 2006, ch 294 (Supreme Court Rule 06-20), eff. July 1, 2006.

15-6-30(b). Notice of examination--General requirements--Special notice--Nonstenographic recording--Production of documents and things--Deposition of organization.

(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.

(2) Leave of court is not required for the taking of a deposition by plaintiff if the notice (A) states that the person to be examined is about to go out of the state, or is about to go out of the United States, or is bound on a voyage to sea, and will be unavailable for examination unless his deposition is taken before expiration of the thirty-day period, and (B) sets forth facts to support the statement. The plaintiff's attorney shall sign the notice, and the attorney's signature constitutes a certification by the attorney that to the best of the attorney's knowledge, information and belief the statement and supporting facts are true.

If a party shows that when the service of notice was made under this subdivision that the party was unable through the exercise of diligence to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party.

(3) The court may for cause shown enlarge or shorten the time for taking the deposition.

(4) The party taking the deposition shall state in the notice the method by which the testimony shall be recorded. Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party taking the deposition shall bear the costs for the recording. Any party may arrange for a transcription to be made from the recording of a deposition taken by non-stenographic means. With prior notice to the deponent and other parties, any party may designate another method to record the deponent's testimony in addition to the method specified by the person taking the deposition. The additional record or transcript shall be made at that party's expense unless the court otherwise orders. If the deposition is recorded other than stenographically, the officer shall state at the beginning of the recorded tape or other recording medium (A) the officer's name and business address; (B) the date, time, and place of the deposition; (C) the name of the deponent; (D) the administration of the oath or affirmation to the deponent; and (E) an identification of all persons present. The officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through camera or sound-recording techniques.

(5) The notice to a party deponent may be accompanied by a request made in compliance with § 15-6-34 for the production of documents and tangible things at the taking of the deposition. The procedure of § 15-6-34 shall apply to the request.

(6) A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.

(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone or other remote electronic means. For the purposes of this subsection and §§ 15-6-28(a), 15-6-37(a)(1), 15-6-37(b)(1) and 15-6-45(d), a deposition taken by such means is taken in the jurisdiction and at the place where the deponent is to answer questions.

Source: SDC 1939 & Supp 1960, §§ 36.0506, 36.0513; SD RCP, Rules 26(d), 30(a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, §§ 15-6-26(d), 15-6-30(a); Supreme Court Rule 76-3, § 4; Supreme Court Rule 82-9; Supreme Court Rules 86-4, 86-5; SL 2005, ch 290 (Supreme Court Rule 05-04), effective Feb. 25, 2005; SL 2006, ch 295 (Supreme Court Rule 06-21), eff. July 1, 2006.

15-6-30(c). Examination and cross-examination--Record of examination--Oath--Objection.

Examination and cross-examination of witnesses may proceed as permitted at the trial as provided by law. The officer before whom the deposition is to be taken shall put the witness on oath and shall personally, or by someone acting under the officer's direction and in the officer's presence, record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other means ordered in accordance with subdivision 15-6-30(b)(4). If requested by one of the parties, the testimony shall be transcribed.

All objections made at time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings, shall be noted by the officer upon the deposition. Evidence objected to shall be taken subject to the objections. In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and he shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.

Source: SDC 1939 & Supp 1960, §§ 36.0505, 36.0517; SD RCP, Rules 26 (c), 30 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(c); Supreme Court Rule 76-3, § 4; SL 2004, ch 329 (Supreme Court Rule 04-02), effective July 1, 2004; SL 2006, ch 296 (Supreme Court Rule 06-22), eff. July 1, 2006.

15-6-30(d). Schedule and duration--Motion to terminate or limit examination.

(1) Any objection during a deposition must be stated concisely and in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under subdivision 15-6-30(d)(4).

(2) Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours. The court must allow additional time if needed for a fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination.

(3) If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney's fees incurred by any parties as a result thereof.

(4) At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the circuit where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in § 15-6-26(c). If the order made terminates the examination, it may be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The provisions of subdivision 15-6-37(a)(4) apply to the award of expenses incurred in relation to the motion.

Source: SD RCP, Rule 30 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 4; SL 2006, ch 297 (Supreme Court Rule 06-23), eff. July 1, 2006.

15-6-30(e). Submission to witness--Changes--Signing.

When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by him, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness within fifteen days of its submission to him, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign together with the reason, if any, given therefor, and the deposition may then be used as fully as though signed unless on a motion to suppress under subdivision 15-6-32(d)(4) the court holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part.

Source: SDC 1939 & Supp 1960, § 36.0518; SD RCP, Rule 30 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 4.

15-6-30(f). Certification and filing by officer--Exhibits--Copies.

(1) The officer shall prepare an electronic copy of the deposition transcript, including any changes as provided in § 15-6-30(e), and shall certify on the deposition that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given by the witness. This certificate must be in writing and accompany the record of the deposition. The officer shall promptly send the certified electronic original of the deposition to the attorney who arranged for the transcript or recording who must store it for filing purposes if necessary. Documents and things produced for inspection during the examination of the witness, shall, upon the request of a party, be marked for identification and electronic files annexed to and returned with the deposition, and may be inspected and copied by any party, except that (A) the person producing the materials may substitute copies to be marked for identification, if he affords to all parties fair opportunity to verify the copies by comparison with the originals, and (B) if the person producing the materials requests their return, the officer shall mark them, give each party an opportunity to inspect and copy them, and return them to the person producing them, and the materials may then be used in the same manner as if annexed to and returned with the deposition. Any party may move for an order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.

(2) Upon payment of reasonable charges therefor, the officer shall furnish a copy of the transcript or other recording of the deposition to any party or to the deponent.

(3) The party taking the deposition shall give prompt notice of its filing to all other parties.

Source: SDC 1939 & Supp 1960, §§ 36.0519, 36.0520, 36.0521; SD RCP, Rule 30 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 4; SL 1995, ch 308 (Supreme Court Rule 95-1); SL 2006, ch 298 (Supreme Court Rule 06-24), eff. July 1, 2006; SL 2016, ch 241 (Supreme Court Rule 16-02), eff. July 1, 2016; SL 2018, ch 295 (Supreme Court Rule 18-04), eff. July 1, 2018.

15-6-30(g). Failure to attend or to serve subpoena for deposition expenses.

(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the amount of the reasonable expenses incurred by that party and that party's attorney in so attending, including reasonable attorney's fees.

(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the amount of reasonable expenses incurred by that party and that party's attorney in so attending, including reasonable attorney's fees.

Source: SDC 1939 & Supp 1960, § 36.0515; SD RCP, Rule 30 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 4; SL 2006, ch 299 (Supreme Court Rule 06-25), eff. July 1, 2006.

15-6-31

15-6-31. --Depositions of witnesses upon written interrogatories

15-6-31(a). Serving questions--Notice.

After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided in § 15-6-45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. Deposition by written questions of a person who has already been deposed in the case may only be taken with the consent of the deponent and parties, or by leave of the court.

A party desiring to take a deposition upon written questions shall serve them upon every other party with a notice stating (1) the name and address of the person who is to answer them, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs, and (2) the name or descriptive title and address of the officer before whom the deposition is to be taken. A deposition upon written questions may be taken of a public or private corporation or a partnership or association or governmental agency in accordance with the provisions of subdivision 15-6-30(b)(6).

Within fourteen days after the notice and written questions are served, a party may serve cross-questions upon all other parties. Within seven days after being served with cross-questions, a party may serve redirect questions upon all other parties. Within seven days after being served with redirect questions, a party may serve recross-questions upon all other parties. The court may for cause shown enlarge or shorten the time.

Source: SDC 1939 & Supp 1960, §§ 36.0501, 36.0511; SD RCP, Rules 26 (a), 31 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(a); Supreme Court Rule 76-3, § 5; SL 2006, ch 300 (Supreme Court Rule 06-26), eff. July 1, 2006.

15-6-31(b). Officer to take responses and prepare record.

A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by §§ 15-6-30(c), 15-6-30(e), and 15-6-30(f), to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by the officer.

Source: SD RCP, Rule 31 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 5; SL 2006, ch 301 (Supreme Court Rule 06-27), eff. July 1, 2006.

15-6-31(c). Notice of filing.

When the deposition is filed, the party filing it shall promptly give notice thereof to all other parties.

Source: SL 2006, ch 302 (Supreme Court Rule 06-28), eff. July 1, 2006.

15-6-31(D)

15-6-31(d). Superseded

15-6-32

15-6-32. Effect of errors and irregularities in depositions

15-6-32(a). Use of depositions.

At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any one of the following provisions:

(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness, or for any other purpose permitted by the South Dakota Rules of Evidence.

(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under subdivision 15-6-30(b)(6) or § 15-6-31(a) to testify on behalf of a public or private corporation, limited liability company, partnership, association or governmental agency which is a party may be used by an adverse party for any purpose.

(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:

(A) That the witness is dead; or

(B) That the witness is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or

(C) That the witness is unable to attend or testify because of age, illness, infirmity, imprisonment, or occupational commitments; if the deposition was taken for purposes of use at the trial in the place of the witness' personal attendance because of such commitments; or

(D) That the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or

(E) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

(4) If only part of a deposition is offered in evidence by a party, an adverse party may require the offeror to introduce any other part which ought in fairness to be considered with the part introduced, and any party may introduce any other parts.

Substitution of parties does not affect the right to use depositions previously taken; and, when an action in any court of the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.

Source: SDC 1939 & Supp 1960, § 36.0506; SD RCP, Rule 26(d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(d); Supreme Court Rule 76-3, § 6; Supreme Court Rules 86-6, 86-7; SL 1994, ch 351, § 34; SL 2006, ch 303 (Supreme Court Rule 06-29), eff. July 1, 2006.

15-6-32(b). Objections to admissibility.

Subject to the provisions of § 15-6-28(b) and subdivision 15-6-32(d)(3), objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.

Source: SDC 1939 & Supp 1960, § 36.0508; SD RCP, Rule 26 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(e); Supreme Court Rule 76-3, § 6.

15-6-32(c). Effect of taking or using deposition.

A party does not make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof for any purpose other than that of contradicting or impeaching the deponent makes the deponent the witness of the party introducing the deposition, but this shall not apply to the use by an adverse party of a deposition under subdivision 15-6-32(a)(2). At the trial or hearing any party may rebut any relevant evidence contained in a deposition whether introduced by him or by any other party.

Source: SDC 1939 & Supp 1960, § 36.0509; SD RCP, Rule 26 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-26(f); Supreme Court Rule 76-3, § 6.

15-6-32(d). Effect of errors and irregularities in depositions.

(1) As to notice. All errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice.

(2) As to disqualification of officer. Objection to taking a deposition because of disqualification of the officer before whom it is to be taken is waived unless made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

(3) As to taking of deposition.

(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.

(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition.

(C) Objections to the form of written questions submitted under § 15-6-31 are waived unless served in writing upon the party propounding them within the time allowed for serving the succeeding cross or other questions and within five days after service of the last questions authorized.

(4) As to completion and return of deposition. Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, endorsed, transmitted, filed, or otherwise dealt with by the officer under §§ 15-6-30 and 15-6-31 are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after such defect is, or with due diligence might have been, ascertained.

Source: SDC 1939 & Supp 1960, §§ 36.0507, 36.0508; SD RCP, Rules 32 (a) to 32 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, §§ 15-6-32(a) to 15-6-32(c); Supreme Court Rule 76-3, § 6.

15-6-33

15-6-33. Interrogatories to parties

15-6-33(a). Availability--Procedures for use.

Any party may serve upon any other party written interrogatories to be answered by the party served or, if the party served is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for the objection and shall answer to the extent the interrogatory is not objectionable. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections, if any, within thirty days after the service of the interrogatories, except that a defendant may serve answers or objections within forty-five days after service of the summons and complaint upon that defendant. A shorter or longer time may be directed by the court or, in the absence of such order, agreed to in writing by the parties. All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party's failure to object is excused by the court for good cause shown. The party submitting the interrogatories may move for an order under § 15-6-37(a) with respect to any objection to or other failure to answer an interrogatory. A party answering interrogatories must set out the interrogatory immediately preceding the answer thereto.

Source: SDC 1939 & Supp 1960, § 36.0531; SD RCP, Rule 33, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-33; Supreme Court Rule 76-3, § 7; SL 2006, ch 304 (Supreme Court Rule 06-30), eff. July 1, 2006.

15-6-33(b). Scope--Use at trial.

Interrogatories may relate to any matters which can be inquired into under § 15-6-26(b), and the answers may be used to the extent permitted by the rules of evidence.

An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the court may order that such interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.

Source: SDC 1939 & Supp 1960, § 36.0531; SD RCP, Rule 33, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-33; Supreme Court Rule 76-3, § 7.

15-6-33(c). Option to produce business records.

Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of such business records, including a compilation, abstract, or summary thereof, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, or summaries. A specification shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party served, the records from which the answer may be ascertained.

Source: SDCL, § 15-6-33 as added by Supreme Court Rule 76-3, § 7; Supreme Court Rule 86-8.

15-6-34

15-6-34. Discovery and production of documents and things for inspection, copying, or photographing

15-6-34(a). Scope.

Any party may serve on any other party a request:

(1) To produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of § 15-6-26(b) and which are in the possession, custody, or control of the party upon whom the request is served; or

(2) To permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of § 15-6-26(b).

Source: SDC 1939 & Supp 1960, § 36.0601; SD RCP, Rule 34, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-34; Supreme Court Rule 76-3, § 8.

15-6-34(b). Procedure.

The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.

The party upon whom the request is served shall serve a written response within thirty days after the service of the request, except that a defendant may serve a response within forty-five days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under § 15-6-37(a) with respect to any objection to or other failure to respond to the request or of any part thereof, or any failure to permit inspection as requested.

A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request.

Source: SDC 1939 & Supp 1960, § 36.0601; SD RCP, Rule 34, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-34; Supreme Court Rule 76-3, § 8; Supreme Court Rule 86-9.

15-6-34(c). Persons not parties.

This rule does not preclude an independent action against a person not a party for production of documents and things and permission to enter upon land.

Source: SDCL, § 15-6-34 as added by Supreme Court Rule 76-3, § 8.

15-6-35

15-6-35. Physical and mental examinations and blood tests of persons

15-6-35(a). Order for examination.

In an action in which the mental or physical condition of a party or the consanguinity of a party with another person or party is in controversy, the court in which the action is pending may order such person or party to submit to a physical or mental examination or blood test by a physician. The order may be made only on motion for good cause shown and upon notice to the person or party to be examined and to all other persons or parties involved and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.

Source: SDC 1939 & Supp 1960, § 36.0602; SD RCP, Rule 35 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-35(b). Report of examining physician.

(1) If requested by the party against whom an order is made under § 15-6-35(a) or the person examined, the party causing the examination to be made shall deliver to him a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses and conclusions, together with like reports of all earlier examinations of the same condition. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that he is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician fails or refuses to make a report the court may exclude his testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.

(3) This subdivision applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subdivision does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule.

Source: SDC 1939 & Supp 1960, §§ 36.0603, 36.0604; SD RCP, Rule 35 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 9.

15-6-36

15-6-36. Admission of facts and of genuineness of documents

15-6-36(a). Request for admission.

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of subdivision 15-6-26(b)(1) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow or as the parties may agree to in writing, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the summons and complaint upon him. If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny. A party who considers that a matter of which an admission has been requested presents a genuine issue for trial may not, on that ground alone, object to the request; the party may, subject to provisions of § 15-6-37(c), deny the matter or set forth reasons why the party cannot admit or deny it.

The party who has requested the admissions may move to determine the sufficiency of the answers or objections. Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this rule, it may order either that the matter is admitted or that an amended answer be served. The court may, in lieu of these orders, determine that final disposition of the request be made at a pretrial conference or at a designated time prior to trial. The provisions of subdivision 15-6-37(a)(4) apply to the award of expenses incurred in relation to the motion.

Source: SDC 1939 & Supp 1960, § 36.0605; SD RCP, Rule 36 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 10; SL 2006, ch 305 (Supreme Court Rule 06-31), eff. July 1, 2006.

15-6-36(b). Effect of admission.

Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission. Subject to the provisions of § 15-6-16 governing amendment of a pretrial order, the court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining his action or defense on the merits. Any admission made by a party under this rule is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.

Source: SDC 1939 & Supp 1960, § 36.0605; SD RCP, Rule 36 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 10; SL 2006, ch 306 (Supreme Court Rule 06-32), eff. July 1, 2006.

15-6-37

15-6-37. Refusal to make discovery--consequences

15-6-37(a). Motion for order compelling disclosure or discovery.

A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

(1) Appropriate court. An application for an order to a party may be made to the court in which the action is pending. An application for an order to a person who is not a party shall be made to the court in the circuit where the discovery is being, or is to be, taken.

(2) Motion. If a deponent fails to answer a question propounded or submitted under § 15-6-30 or 15-6-31, or a corporation or other entity fails to make a designation under subdivision 15-6-30(b)(6) or § 15-6-31(a), or, a party fails to answer an interrogatory submitted under § 15-6-33, or if a party in response to a request for inspection submitted under § 15-6-34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make the discovery in an effort to secure the information or material without court action. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order.

(3) Evasive or incomplete disclosure, answer, or response. For purposes of this subdivision an evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond.

(4) Expenses and sanctions.

(A) If the motion is granted or if the requested discovery is provided after the motion was filed, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorneys' fees, unless the court finds that the motion was filed without the movant's first making a good faith effort to obtain the disclosure or discovery without court action, or that the opposing party's nondisclosure, response or objection was substantially justified or that other circumstances make an award of expenses unjust.

(B) If the motion is denied, the court may enter any protective order authorized under § 15-6-26(c) and shall, after affording an opportunity to be heard, require the moving party or the attorney filing the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorneys' fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.

(C) If the motion is granted in part and denied in part, the court may enter any protective order authorized under § 15-6-26(c) and may, after affording an opportunity to be heard, apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

Source: SDC 1939 & Supp 1960, § 36.0607; SD RCP, Rule 37 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 11; SL 2006, ch 307 (Supreme Court Rule 06-33), eff. July 1, 2006.

15-6-37(b). Failure to comply with order.

(1) Sanctions by court in circuit where deposition is taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the circuit in which the deposition is being taken, the failure may be considered a contempt of that court.

(2) Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under subdivision 15-6-30(b)(6) or § 15-6-31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under § 15-6-37(a) or 15-6-35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence;

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;

(E) Where a party has failed to comply with an order under § 15-6-35(a) requiring that party to produce another for examination, such orders as are listed in paragraphs (A), (B), and (C) of this subdivision, unless the party failing to comply shows that that party is unable to produce such person for examination.

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

Source: SDC 1939 & Supp 1960, § 36.0607; SD RCP, Rule 37 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 11; SL 2006, ch 308 (Supreme Court Rule 06-34), eff. July 1, 2006.

15-6-37(c). Failure to disclose--False or misleading disclosure--Refusal to admit.

(1) A party that without substantial justification fails to disclose information required by subdivision 15-6-26(e)(1), or to amend a prior response to discovery as required by subdivision 15-6-26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court, on motion and after affording an opportunity to be heard, may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses, including attorneys' fees, caused by the failure, these sanctions may include any of the actions authorized under subdivisions 15-6-37(b)(2)(A), (2)(B), and (2)(C) and may include informing the jury of the failure to make the disclosure.

(2) If a party fails to admit the genuineness of any document or the truth of any matter as requested under § 15-6-36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, the requesting party may apply to the court for an order requiring the other party to pay the reasonable expenses incurred in making that proof, including reasonable attorneys' fees. The court shall make the order unless it finds that:

(A) The request was held objectionable pursuant to § 15-6-36(a); or

(B) The admission sought was of no substantial importance; or

(D) There was other good reason for the failure to admit.

Source: SDC 1939 & Supp 1960, § 36.0606; SD RCP, Rule 37 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 11; SL 2006, ch 309 (Supreme Court Rule 06-35), eff. July 1, 2006.

15-6-37(d). Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection.

If a party or an officer, director, or managing agent of a party or a person designated under subdivision 15-6-30(b)(6) or § 15-6-31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take the deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under § 15-6-33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under § 15-6-34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subdivisions 15-6-37(b)(2)(A), (2)(B), and (2)(C). In lieu of any order or in addition thereto, the court shall require the party failing to act or the attorney advising him or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

The failure to act described in this subdivision may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by § 15-6-26(c).

Source: SD RCP, Rule 37 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 11; SL 2006, ch 310 (Supreme Court Rule 06-36), eff. July 1, 2006.

15-6-38

15-6-38. Jury trial of right

15-6-38(a). Right to jury trial preserved.

The right of trial by jury as declared by S.D. Const., Art. VI, § 6 or as given by a statute of South Dakota shall be preserved to the parties inviolate.

Source: SD RCP, Rule 38 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-38(b). Demand for jury trial.

Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than ten days after the service of the last pleading directed to such issue. Such demand may be endorsed upon a pleading of the party.

Source: SD RCP, Rule 38 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-38(c). Specification of issues in demand for jury trial.

In the demand for jury trial a party may specify the issues which the party wishes so tried; otherwise the party shall be deemed to have demanded trial by jury for all the issues so triable. If the party has demanded trial by jury for only some of the issues, any other party within ten days after service of the demand or such lesser time as the court may order, may serve a demand for trial by jury of any other or all of the issues of fact in the action.

Source: SD RCP, Rule 38 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 311 (Supreme Court Rule 06-37), eff. July 1, 2006.

15-6-38(d). Waiver of jury trial.

The failure of a party to serve a demand as required by § 15-6-38 constitutes a waiver by the party of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties.

Source: SD RCP, Rule 38 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 312 (Supreme Court Rule 06-38), eff. July 1, 2006.

15-6-39

15-6-39. Trial by jury or by the court

15-6-39(a). Trial by jury.

When trial by jury has been demanded as provided in § 15-6-38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless:

(1) The parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury, or a party waives the same by failing to appear at the trial or by proceeding to trial by the court without objecting thereto; or

(2) The court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of this state.

Source: SDC 1939 & Supp 1960, §§ 33.1304, 33.1402; SD RCP, Rule 39 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-39(b). Trial by the court.

Issues not demanded for trial by jury as provided in § 15-6-38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.

Source: SD RCP, Rule 39 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-39(c). Advisory jury and trial by consent.

In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury, or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.

Source: SDC 1939 & Supp 1960, § 33.1302; SD RCP, Rule 39 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-40

15-6-40. Assignment of cases for trial

15-6-40(a). Issues--When, where, and how tried.

The judges of the court shall provide by order or by rule for the placing of actions upon the trial calendar in such manner as the court deems expedient. Precedence shall be given to actions entitled thereto.

Source: SDC 1939 & Supp 1960, § 33.1111; SD RCP, Rule 40 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-40(B)

15-6-40(b). Repealed by SL 1993, ch 386

15-6-40(c). Proceeding in absence of party.

Either party from the time when a case is reached upon the calendar, and in the absence of the adverse party, unless the court for good cause shall otherwise direct, may proceed with the party's case and take a dismissal of the complaint, or a verdict, or judgment, as the case may require.

Source: SDC 1939 & Supp 1960, § 33.1305; SD RCP, Rule 40 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 313 (Supreme Court Rule 06-39), eff. July 1, 2006.

15-6-41

15-6-41. Dismissal of actions

15-6-41(a). Voluntary dismissal--Effect thereof.

(1) By Plaintiff; by Stipulation. Subject to the provisions of § 15-6-23(e), of § 15-6-66, and of any statute of this state, an action may be dismissed by the plaintiff without order of court

(A) By filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or

(B) By filing a stipulation of dismissal signed by all parties who have appeared in the action.

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state action based on or including the same claim.

(2) By Order of the Court. Except as provided in subdivision (1) of this section, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

Source: SD RCP, Rule 41 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule No. 4, 1972, effective January 1, 1973; SL 2006, ch 314 (Supreme Court Rule 06-40), eff. July 1, 2006.

15-6-41(b). Involuntary dismissal--Effect thereof.

For failure of the plaintiff to prosecute or to comply with this chapter or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff's evidence, the defendant, without waiving the defendant's right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in § 15-6-52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section and any dismissal not provided for in § 15-6-41, other than a dismissal for lack of jurisdiction, or for failure to join a party under § 15-6-19, operates as an adjudication upon the merits.

Source: SDC 1939 & Supp 1960, § 33.1704 (4); SD RCP, Rule 41 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 2006, ch 315 (Supreme Court Rule 06-41), eff. July 1, 2006.

15-6-41(c). Dismissal of counterclaim, cross-claim, or third-party claim.

The provisions of § 15-6-41 apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of § 15-6-41(a) shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing.

Source: SD RCP, Rule 41 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-41(d). Costs of previously dismissed action.

If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

Source: SD RCP, Rule 41 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-42

15-6-42. Consolidation--separate trials

15-6-42(a). Consolidation of actions.

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Source: SDC 1939 & Supp 1960, § 33.0917; SD RCP, Rule 42 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-42(b). Separate trials.

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the state or federal Constitution or as given by a statute.

Source: SDC 1939 & Supp 1960, § 33.0917; SD RCP, Rule 42 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-43

15-6-43. Evidence

15-6-43(a). Form and admissibility of evidence.

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by this chapter or by the South Dakota Rules of Evidence.

Source: SD RCP, Rule 43 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 84-8.

15-6-43(B)

15-6-43(b). Superseded

15-6-43(C)

15-6-43(c). Superseded

15-6-43(d). Oath or affirmation.

Whenever under this chapter an oath or affirmation is required, it may be in the form prescribed by §§ 19-19-603.1 and 19-19-603.2.

Source: SD RCP, Rule 43 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1979, ch 154, § 28.

15-6-43(e). Evidence on motions.

When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

Upon motion of any party for a hearing pursuant to § 21-1-4.1, the court shall consider and decide the matter prior to trial.

Source: SD RCP, Rule 43 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1993, ch 387 (Supreme Court Rule 93-4).

15-6-43(f). Interpreters.

The procedure for appointing interpreters shall be as provided in § 19-3-7, and their compensation fixed, paid, and collected as provided in § 19-3-7.

Source: SD RCP, Rule 43 (f), as adopted by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 1979, ch 154, § 29.

15-6-44

15-6-44. Proof of official record

15-6-44(a). Authentication of official records.

(1) Domestic. An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a certified copy prepared by the officer having the legal custody of the record, or by that officer's deputy.

(2) Foreign. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without final certification or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.

Source: SDC 1939 & Supp 1960, § 36.0901; SD RCP, Rule 44 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 1996, ch 313.

15-6-44(b). Proof of lack of official record.

A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision 15-6-44(a)(1) in the case of a domestic record, or complying with the requirements of subdivision 15-6-44(a)(2) for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry.

Source: SDC 1939 & Supp 1960, § 36.1103; SD RCP, Rule 44 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-44(c). Other proof of official record.

Section 15-6-44 does not prevent the proof of official records or of entry or lack of entry therein by any other method authorized by law.

Source: SD RCP, Rule 44 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-44.1. Determination of foreign law.

A party who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under § 15-6-43. The court's determination shall be treated as a ruling on a question of law.

Source: SD RCP, Rule 44.1, as adopted by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-45(a). Subpoena for attendance of witnesses and for production of documentary evidence--Form--Issuance.

Clerks of courts, judges, magistrates, notaries public, referees, and any other public officer or agency so empowered by § 1-26-19.1 or otherwise authorized by law in any matter pending before them, upon application of any person having a cause or any matter pending in court or before such agency, officer or tribunal, may issue a subpoena for a witness or witnesses, or for the production of books, papers, documents or tangible things designated therein pursuant to the provisions of § 15-6-45(b).

Any attorney of record who has been duly admitted to practice in this state and is in good standing upon the active list of attorneys of the State Bar of South Dakota may issue a subpoena for a witness or witnesses, and for production, inspection and copying of records and exhibits, in any action or proceeding, or collateral hearing, civil or criminal, in which the attorney is the attorney of record for any party. When an attorney issues a subpoena, the attorney must contemporaneously transmit a copy thereof to the clerk of the court, or to the secretary or other filing officer of the board or tribunal in which the matter is pending, for filing. Such officer shall file such copy as one of the public records of the action or proceeding.

A subpoena shall state the name of the court, or tribunal, the title of the action or proceeding, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. It shall state the name of the person or party for whom the testimony of the witness is required. The seal of the court or officer, or tribunal, shall be affixed to the original and all copies, if issued by a court or officer having a seal. If the subpoena is issued by an attorney, it shall be issued in the name of the presiding officer of the court, or tribunal in which the matter is pending and shall be attested and signed by the attorney, designating the party for whom the attorney is attorney of record. A subpoena shall also include the following text in bold, capitalized type immediately above the signature of the individual signing the subpoena:

YOU SHOULD TREAT THIS DOCUMENT AS YOU WOULD A COURT ORDER. IF YOU FAIL TO COMPLY WITH THE COMMAND(S) IN THIS DOCUMENT WITHOUT ADEQUATE EXCUSE, THE COURT MAY FIND YOU IN CONTEMPT AND ASSESS MONETARY OR OTHER SANCTIONS AGAINST YOU.

YOU HAVE CERTAIN OBLIGATIONS AND RIGHTS AS IT CONCERNS THIS DOCUMENT, INCLUDING THOSE SET FORTH IN SDCL § 15-6-45(b)–(g).

YOU SHOULD CONSIDER CONTACTING AN ATTORNEY REGARDING YOUR OBLIGATIONS AND RIGHTS.

Source: SDC 1939 & Supp 1960, §§ 36.0301, 36.0302; SD RCP, Rule 45 (a), as adopted by Sup. Ct. Order March 29, 1966, eff. July 1, 1966; Supreme Court Rule 76-3, § 12; SL 2021, ch 255 (Supreme Court Rule 21-03), eff. Feb. 23, 2021; SL 2023, ch 214 (Supreme Court Rule 22-13), eff. Jan. 1, 2023.

15-6-45

15-6-45. Subpoena

15-6-45(b).Subpoena for production of documentary evidence.

A subpoena may command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein, regardless of whether the attorney also notices the person's deposition or commands the presence of the person to which it is directed to give testimony at a hearing or trial. Before a subpoena commanding the production of documentary evidence is served on the person to whom it is directed, a notice and copy of the subpoena must be served on each party to the matter pending. The court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may:

(1) Quash or modify the subpoena if it is unreasonable and oppressive; or

(2) Condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

Source: SDC 1939 & Supp 1960, § 36.0302; SD RCP, Rule 45 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2020, ch 246 (Supreme Court Rule 19-16), eff. Sept. 6, 2019.

15-6-45(c). Service of subpoena.

The subpoena may be served by any officer or person qualified to make service of a summons. The subpoena shall be served in the same manner as a summons is served, excepting that no service by publication is authorized. The subpoena must be served sufficiently in advance of the date upon which the appearance of the witness is required to enable such witness to reach such place by any ordinary or usual method of transportation which he may elect.

At the time of service of a subpoena, there shall be tendered to or on behalf of the person therein named the fees for one day's attendance and the mileage allowed by law. The fact of such payment, or the signed waiver thereof by the person named in the subpoena, shall be stated in the return. If such fees and mileage be not paid or waived, the witness shall not be obliged to obey the subpoena.

At the commencement of each day after the first day, a witness under subpoena may demand his fees for that day's attendance, and if the same is not paid, he shall not be required to remain.

When the subpoena is issued on behalf of the State of South Dakota or its political subdivisions or an officer or agency thereof, fees and mileage need not be tendered.

Source: SDC 1939, §§ 36.0301, 36.0401; SL 1955, ch 134; SD RCP, Rule 45 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 13.

15-6-45(d). Subpoena for taking depositions--Place of examination.

(1) Proof of service of a notice to take a deposition as provided in §§ 15-6-30(b) and 15-6-31(a) constitutes a sufficient authorization for the issuance by any person specified in § 15-6-45(a) or by the clerk of courts of the county in which the deposition is to be taken of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by § 15-6-26(b), but in that event the subpoena will be subject to the provisions of §§ 15-6-26(c) and 15-6-45(b).

The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than ten days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.

(2) A resident of this state may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the court. A nonresident of this state may be required to attend only in the county wherein he is served the subpoena, or at such other convenient place as is fixed by an order of the court.

Source: SDC 1939 & Supp 1960, §§ 36.0303, 36.0402; SD RCP, Rule 45 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 14.

15-6-45(E)

15-6-45(e). Superseded

15-6-45(f). Failure to obey subpoena as contempt.

Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court wherein the action is pending or of a court from which the subpoena may have been issued.

Source: SD RCP, Rule 45 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-45(g). Nonresident of state served with subpoena in state.

A nonresident of this state who is served with subpoena in this state shall be required to obey the same; provided, that the mileage required to be paid such witness as provided in § 15-6-45(c) shall be computed from the place of service of the subpoena to the place of attendance.

Source: SDC 1939 & Supp 1960, § 36.0403; SD RCP, Rule 45 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 15.

15-6-46. Exceptions unnecessary.

Formal exceptions to rulings or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.

Source: SDC 1939 & Supp 1960, § 33.1601; SD RCP, Rule 46, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1978, ch 178, § 565.

15-6-47

15-6-47. Jurors

15-6-47(a). Examination of jurors.

The court shall permit the parties or their attorneys to conduct the examination of prospective jurors.

Source: SD RCP, Rule 47 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-47(b). Alternate jurors.

The court may direct that not more than six jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impaneled, two peremptory challenges if three or four alternate jurors are to be impaneled, and three peremptory challenges if five or six alternate jurors are to be impaneled. The additional peremptory challenges may be used against an alternate juror only and the other peremptory challenges allowed by law shall not be used against an alternate juror. The court may for good cause excuse a juror from service during trial or deliberation.

Source: SDC 1939 & Supp 1960, § 33.1327; SD RCP, Rule 47 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 2006, ch 316 (Supreme Court Rule 06-42), eff. July 1, 2006.

15-6-48. Juries of less than twelve--Majority verdict.

The parties may stipulate that the jury shall consist of any number less than twelve or that a verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.

Source: SD RCP, Rule 48, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-49

15-6-49. Special verdicts and interrogatories

15-6-49(a). Special verdicts.

The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.

Source: SD RCP, Rule 49 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 317 (Supreme Court Rule 06-43), eff. July 1, 2006.

15-6-49(b). General verdict accompanied by answer to interrogatories.

The court may submit to the jury, together with appropriate forms for a general verdict, written interrogatories upon one or more issues of fact the decision of which is necessary to a verdict. The court shall give such explanation or instruction as may be necessary to enable the jury both to make answers to the interrogatories and to render a general verdict, and the court shall direct the jury both to make written answers and to render a general verdict. When the general verdict and the answers are harmonious, the appropriate judgment upon the verdict and answers shall be entered pursuant to § 15-6-58. When the answers are consistent with each other but one or more is inconsistent with the general verdict, judgment may be entered pursuant to § 15-6-58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.

Source: SD RCP, Rule 49 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-50. Motion for a directed verdict and for judgment notwithstanding the verdict.

15-6-50(a). Judgment as a matter of law.

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment.

Source: SDC 1939 & Supp 1960, §§ 33.1314 to 33.1316; SD RCP, Rule 50 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 318 (Supreme Court Rule 06-44), eff. July 1, 2006.

15-6-50(b). Renewing motion for judgment after trial--Alternative motion for new trial.

If, for any reason, the court does not grant a motion for judgment as a matter of law made at the close of all the evidence, the court is considered to have submitted the action to the jury subject to the court's later deciding the legal questions raised by the motion. The movant may renew its request for judgment as a matter of law by filing a motion no later than ten days after notice of entry of judgment--and may alternatively request a new trial or join a motion for a new trial under § 15-6-59. In ruling on a renewed motion, the court may:

(1) If a verdict was returned:

(A) Allow the judgment to stand;

(B) Order a new trial; or

(2) If no verdict was returned:

(A) Order a new trial; or

(B) Direct entry of judgment as a matter of law.

Source: SDC 1939, § 33.1705; Supreme Court Order No. 3, 1952; SDC Supp 1960, § 33.1328; SD RCP, Rule 50 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 79-4; Supreme Court Rule 82-30; SL 2006, ch 319 (Supreme Court Rule 06-45), eff. July 1, 2006; SL 2008, ch 287 (Supreme Court Rule 08-01), eff. July 1, 2008.

15-6-50(c). Granting renewed motion for judgment as a matter law--Conditional rulings--New trial motion.

(1) If the renewed motion for judgment as a matter of law, provided for in § 15-6-50(b), is granted, the court shall also rule on the motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the Supreme Court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the respondent on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the Supreme Court.

(2) Any motion for a new trial under § 15-6-59 by a party against whom judgment as a matter of law is rendered shall be filed no later than 10 days after entry of the judgment.

Source: SD RCP, Rule 50 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 320 (Supreme Court Rule 06-46), eff. July 1, 2006.

15-6-50(d). Denial of motion for judgment as a matter of law.

If the motion for judgment as a matter of law is denied, the party who prevailed on that motion may, as respondent, assert grounds entitling the party to a new trial in the event the Supreme Court concludes that the trial court erred in denying the motion for judgment. If the Supreme Court reverses the judgment, nothing in § 15-6-50 precludes it from determining that the respondent is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.

Source: SD RCP, Rule 50 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 321 (Supreme Court Rule 06-47), eff. July 1, 2006.

15-6-51

15-6-51. Instructions to jury--objection

15-6-51(a). Instructions to jury--Requests.

(1) A party may, at the close of the evidence or at an earlier reasonable time that the court directs, file and furnish to every other party written requests that the court instruct the jury on the law as set forth in the requests.

(2) After the close of the evidence, a party may:

(A) File requests for instructions on issues that could not reasonably have been anticipated at an earlier time for requests set under subdivision 15-6-51(a)(1); and

(B) With the court's permission file untimely requests for instructions on any issue.

Source: SDC 1939 & Supp 1960, §§ 33.1317, 33.1325; SD RCP, Rule 51 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1993, ch 388 ( Supreme Court Rule 93-5); SL 1999, ch 268; SL 2006, ch 322 (Supreme Court Rule 06-48), eff. July 1, 2006.

15-6-51(b). Instructions.

The court:

(1) Must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments;

(2) Must give the parties an opportunity to object on the record and out of the jury's hearing to the proposed instructions and actions on requests before the instructions and arguments are delivered; and

(3) May instruct the jury at any time after trial begins and before the jury is discharged.

Source: SDC 1939 & Supp 1960, § 33.1318; SD RCP, Rule 51 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1978, ch 178, § 566; Supreme Court Rule 98-27; SL 2006, ch 323 (Supreme Court Rule 06-49), eff. July 1, 2006.

15-6-51(c). Objections.

(1) A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds of the objection.

(2) An objection is timely if:

(A) A party that has been informed of an instruction or action on a request before the jury is instructed and before final jury arguments, as provided by subdivision 15-6-51(b)(1), objects at the opportunity for objection required by subdivision 15-6-51(b)(2); or

(B) A party that has not been informed of an instruction or action on a request before the time for objection provided under subdivision 15-6-51(b)(2) objects promptly after learning that the instruction or request will be, or has been, given or refused.

Source: SDC 1939 & Supp 1960, § 33.1319; SD RCP, Rule 51 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1978, ch 178, § 567; Supreme Court Rule 98-28; SL 2006, ch 324 (Supreme Court Rule 06-50), eff. July 1, 2006.

15-6-51(d). Assigning error--Plain error.

(1) A party may assign as error:

(A) An error in an instruction actually given if that party made a proper objection under § 15-6-51(c); or

(B) A failure to give an instruction if that party made a proper request under § 15-6-51(a), and--unless the court made a definitive ruling on the record rejecting the request--also made a proper objection under § 15-6-51(c).

(2) A court may consider a plain error in the instructions affecting substantial rights that has not been preserved as required by subdivision 15-6-51(d)(1)(A) or (1)(B).

Source: SL 2006, ch 325 (Supreme Court Rule 06-51), eff. July 1, 2006.

15-6-52

15-6-52. Findings by the court

15-6-52(a). Effect of findings by the court--Proposals--When unnecessary.

In all actions tried upon the facts without a jury or with an advisory jury, the court shall, unless waived as provided in § 15-6-52(b), find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to § 15-6-58. In granting or refusing temporary restraining orders or preliminary injunctions, the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action. Findings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a referee, to the extent that the court adopts them, shall be considered as the findings of the court. Findings of fact and conclusions of law need not be made if a temporary restraining order or preliminary injunction is entered in an action arising under chapters 25-3 and 25-4.

It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence, or appear in an opinion or memorandum of decision filed by the court. Alternatively, the court may direct counsel for the prevailing party to prepare findings; and counsel shall, within ten days after announcement of the decision, unless otherwise ordered, prepare, serve, and submit to the court with copies to opposing counsel, or to the parties of record to the action if not represented by counsel, proposed written findings of fact and conclusions of law together with the proposed judgment or decree.

The court may not sign any findings therein prior to the expiration of five days after service of the proposed findings during which time the parties may in writing submit to the court and serve on their adversaries their objections or additional proposals. Thereafter the court shall make or enter such findings and conclusions as may be proper.

Any action or decision of the court in making or modifying findings of fact or conclusions of law shall be deemed excepted to, but the failure of the court to make a finding or conclusion on a material issue is not to be deemed excepted to unless such finding or conclusion has been proposed to or requested from the court.

If an opinion or memorandum of decision is filed, the facts and legal conclusions stated therein need not be restated but may be included in the findings of fact and conclusions of law by reference.

Findings of fact and conclusions of law are unnecessary on decisions of motions under § 15-6-12 or 15-6-56 or any other motion except as provided in § 15-6-41(b).

Source: SDC 1939 & Supp 1960, §§ 33.1403, 33.1405; SD RCP, Rule 52 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1978, ch 155, § 2; SL 1980, ch 161; Supreme Court Rule 81-3; Supreme Court Rule 82-31; SL 2000, ch 91, § 1; SL 2006, ch 326 (Supreme Court Rule 06-52), eff. July 1, 2006.

15-6-52(b). Waiver of findings and conclusions of law.

Findings of fact and conclusions of law are waived by failing to appear at the trial, by consent in writing filed with the clerk, by oral consent in open court, or by entering into a stipulation of facts for consideration by the court.

Source: SDC 1939 & Supp 1960, §§ 33.1304, 33.1404; SD RCP, Rule 52 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-53

15-6-53. Referees

15-6-53(a). Appointment and compensation of referees.

A court in which any action is pending may appoint a referee therein. A referee must not have a relationship to the parties, counsel, action, or court that would require disqualification of a judge under the Code of Judicial Conduct, unless the parties consent with the court's approval to appointment of a particular person after disclosure of any potential grounds for disqualification. When a reference is made as provided by statute the fees and necessary expenses shall be ordered paid from such source as is designated therein, otherwise the compensation to be allowed to a referee shall be fixed by the court, and shall be charged upon such of the parties or paid out of any fund or subject matter of the action, which is in the custody and control of the court as the court may direct. The referee shall not retain his report as security for his compensation; but when the party ordered to pay the compensation allowed by the court does not pay it after notice and within the time prescribed by the court, the referee is entitled to a writ of execution against the delinquent party.

In cases involving an order for support as defined in subdivision 25-7A-1(12), any referee appointed to hear the case may recommend the imposition of attorney's fees and costs on one or both of the parties. The referee in any hearing held pursuant to chapter 25-7A and the provisions of §§ 25-7A-6 and 25-7A-22, shall be compensated by the court.

Source: SD RCP, Rule 53 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1989, ch 175, § 1; SL 2006, ch 327 (Supreme Court Rule 06-53), eff. July 1, 2006.

15-6-53(b). Reference.

Except as provided in chapter 25-7A, a reference to a referee shall be the exception and not the rule. In actions to be tried by a jury, a reference shall be made only when the issues are complicated; in actions to be tried without a jury, save in matters of account and difficult computation of damages, a reference shall be made only upon a showing that some exceptional condition requires it.

Source: SD RCP, Rule 53 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 1989, ch 175, § 2.

15-6-53(c). Powers of referee.

The order of reference to the referee may specify or limit his powers and may direct him to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the referee's report. Subject to the specifications and limitations stated in the order, the referee has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters embraced in the reference, including the production of all books, papers, vouchers, documents, and writings applicable thereto. He may rule upon the admissibility of evidence unless otherwise directed by the order of reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath. When a party so requests the referee shall make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided in § 15-6-43(c) for a court sitting without a jury.

Source: SD RCP, Rule 53 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-53(d). Proceedings before referee.

(1) Meetings. When a reference is made, the clerk shall forthwith furnish the referee with a copy of the order of reference. Upon receipt thereof unless the order of reference otherwise provides, the referee shall forthwith set a time and place for the first meeting of the parties or their attorneys to be held within twenty days after the date of the order of reference and shall notify the parties or their attorneys. It is the duty of the referee to proceed with all reasonable diligence. Either party, on notice to the parties and referee, may apply to the court for an order requiring the referee to speed the proceedings and to make his report. If a party fails to appear at the time and place appointed, the referee may proceed ex parte or, in his discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment.

(2) Witnesses. The parties may procure the attendance of witnesses before the referee by the issuance and service of subpoenas as provided in § 15-6-45. If without adequate excuse a witness fails to appear or give evidence, he may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in §§ 15-6-37 and 15-6-45.

(3) Statement of Accounts. When matters of accounting are in issue before the referee, he may prescribe the form in which the accounts shall be submitted and in any proper case may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the referee may require a different form of statement to be furnished, or the accounts or specific items thereof to be proved by oral examination of the accounting parties or upon written interrogatories or in such other manner as he directs.

Source: SD RCP, Rule 53 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-53(e). Report of referee.

(1) Contents and Filing. The referee shall prepare a report upon the matters submitted to him by the order of reference and, if required to make findings of fact and conclusions of law, he shall set them forth in the report. He shall file the report with the clerk of the court and in an action to be tried without a jury, unless otherwise directed by the order of reference, shall file with it a transcript of the proceedings and of the evidence and the original exhibits. The clerk shall forthwith mail to all parties notice of the filing.

(2) In Nonjury Actions. In an action to be tried without a jury the court shall accept the referee's findings of fact unless clearly erroneous. Within ten days after being served with notice of the filing of the report any party may serve written objections thereto upon the other parties. Application to the court for action upon the report and upon objections thereto shall be by motion and upon notice as prescribed in § 15-6-6(d). The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.

(3) In Jury Actions. In an action to be tried by a jury the referee shall not be directed to report the evidence. His findings upon the issues submitted to him are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report.

(4) Stipulation as to Findings. The effect of a referee's report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a referee's findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.

(5) Draft Report. Before filing his report a referee may submit a draft thereof to counsel for all parties for the purpose of receiving their suggestions.

Source: SD RCP, Rule 53 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-54

15-6-54. Judgments--costs

15-6-54(a). Definition--Form of judgment.

"Judgment" as used in this chapter includes a decree and means the final determination of the rights of the parties in an action or proceeding. A judgment shall not contain a recital of pleadings, the report of a referee, or the record of prior proceedings. Every direction of a court or judge, made or entered in writing and not included in a judgment, is denominated an order.

Source: SDC 1939 & Supp 1960, §§ 33.1404, 33.1701; SD RCP, Rule 54 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-54(b). Judgment upon multiple claims or involving multiple parties.

When multiple claims for relief or multiple parties are involved in an action, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Source: SDC 1939 & Supp 1960, § 33.1704; SD RCP, Rule 54 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-54(c). Demand for judgment.

A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.

Source: SDC 1939 & Supp 1960, § 33.1703; SD RCP, Rule 54 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-54(d). Judgment for costs--Attorneys' fees.

(1) Costs and disbursements other than attorneys' fees. Except as otherwise provided by statute, costs and disbursements, other than attorneys' fees, shall be allowed as of course to the prevailing party unless the court otherwise directs. If a party wishes to have disbursements and costs of the action assessed, that party must file an application for taxation of costs, and a certificate of service, with the clerk of court. The application shall include a statement in detail of the costs and disbursements claimed and shall be verified by affidavit. The party preparing the application shall forthwith serve a true copy of the application and the certificate of service upon all other parties. A motion for default judgment may include the application for taxation of costs of the action and be filed, with a certificate of service, with the clerk of court and be served upon all other parties.

A party who objects to any part of the application shall serve and file his objections with the clerk of court in writing within ten days of the service of the application on him or he will be deemed to have agreed to the taxation of the costs and disbursements proposed. The written objections must be accompanied by a notice of hearing thereon and shall set forth in concise language the reasons why the costs should not be allowed. Upon receipt of such written objections and the notice of hearing, the clerk shall file the same and forward copies thereof, together with a copy of the application, to the court. Where the application is included in a motion for default judgment, the ten days to object to the application for costs is waived.

The decision rendered at the hearing shall be filed as a written order with the clerk, directing that the approved amount of costs and disbursements be inserted in the judgment and docketed.

If no written objection to the taxation of costs is filed within ten days of service, the clerk shall tax the costs and disbursements as set forth on the application, insert the amount in the judgment, and docket it.

Costs and disbursements under this section shall be waived if proper application is not made within thirty days of the entry of the judgment. For good cause shown, the court may extend the time.

(2) Attorneys' fees.

(A) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.

(B) Unless otherwise provided by statute or order of the court, the motion must be filed no later than fourteen days after entry of judgment; must specify the judgment and the statute, rule, or other grounds entitling the moving party to the award; and must state the amount or provide a fair estimate of the amount sought. If directed by the court, the motion shall also disclose the terms of any agreement with respect to fees to be paid for the services for which claim is made.

(C) On request of a party or class member, the court shall afford an opportunity for adversary submissions with respect to the motion. The court may determine issues of liability for fees before receiving submissions bearing on issues of evaluation of services for which liability is imposed by the court. The court shall find the facts and state its conclusions of law as provided in § 15-6-52(a).

(D) The provisions of subparagraphs (A) through (C) do not apply to claims for fees and expenses as sanctions for violations of these rules.

Source: SDC 1939 & Supp 1960, §§ 33.1816, 33.1818; SD RCP, Rule 54 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1987, ch 397 (Supreme Court Rule 86-23); SL 1991, ch 427 (Supreme Court Rule 90-04); SL 2004, ch 330 (Supreme Court Rule 04-03), effective July 1, 2004; SL 2006, ch 328 (Supreme Court Rule 06-54), eff. July 1, 2006.

15-6-55

15-6-55. Default

15-6-55(a). Entry of default.

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by this chapter that fact shall be made to appear by affidavit.

Source: SD RCP, Rule 55 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-55(b). Default judgment.

Judgment by default may be entered as follows:

(1) By the Court. In all cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against a minor or incompetent person unless represented in the action by a guardian, conservator or guardian ad litem who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of this state.

(2) Filing. No default judgment shall be rendered against a defendant until a complaint has been on file at least twenty days unless the complaint has been served with a summons.

(3) Service by Publication. In actions where the service of the summons was by publication before rendering judgment the court may in its discretion require the plaintiff to cause to be filed satisfactory security to abide the order of the court touching the restitution of any estate or effects which may be directed by such judgment to be transferred or delivered or the restitution of any money that may be collected under or by virtue of such judgment in case the defendant or his representative shall apply and be admitted to defend the action and shall succeed in such defense.

Source: SDC 1939 & Supp 1960, § 33.1707; SD RCP, Rule 55 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1993, ch 213, § 91.

15-6-55(c). Setting aside default.

For good cause shown the court may set aside a judgment by default in accordance with § 15-6-60(b).

Source: SD RCP, Rule 55 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 84-6.

15-6-55(d). Plaintiffs, counterclaimants and cross-claimants entitled to default.

The provisions of § 15-6-55 apply whether the party entitled to the judgment by default is a plaintiff, a third-party plaintiff, or a party who has pleaded a cross-claim or counterclaim. In all cases a judgment by default is subject to the limitations of § 15-6-54(c).

Source: SD RCP, Rule 55 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-56

15-6-56. Summary judgment

15-6-56(a). Summary judgment for claimant.

A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of thirty days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

Source: SD RCP, Rule 56 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-56(b). Summary judgment for defending party.

A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

Source: SD RCP, Rule 56 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-56(c). Motion for summary judgment and proceedings thereon.

Unless different periods are fixed or permitted by order of the court, the motion and supporting brief, statement of undisputed material facts, and any affidavits shall be served not later than twenty-eight calendar days before the time specified for the hearing; any response or reply thereto, including any response to the movant’s statement of undisputed material facts, shall be served not later than fourteen calendar days before the hearing; and a reply brief or affidavit may be served by the movant not later than seven calendar days before the hearing. The time computation rules of SDCL 15-6-6(a) requiring the exclusion of intermediate Saturdays, Sundays, and legal holidays shall not apply to the seven-calendar-day reply period.

(1) A party moving for summary judgment shall attach to the motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Each material fact in this required statement must be presented in a separate numbered statement and with appropriate citation to the record in the case.

(2) A party opposing a motion for summary judgment shall include a separate, short, and concise statement of the material facts as to which the opposing party contends a genuine issue exists to be tried. The opposing party must respond to each numbered paragraph in the moving party's statement with a separately numbered response and appropriate citations to the record.

(3) All material facts set forth in the statement that the moving party is required to serve shall be admitted unless controverted by the statement required to be served by the opposing party.

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

Source: SD RCP, Rule 56 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 329 (Supreme Court Rule 06-55), eff. July 1, 2006; SL 2007, ch 302 (Supreme Court Rule 06-70), eff. Jan. 1, 2007; SL 2008, ch 281 (Supreme Court Rule 07-02), eff. Jan. 1, 2008; SL 2021, ch 256 (Supreme Court Rule 21-04), eff. Jul. 1, 2021.

15-6-56(d). Case not fully adjudicated on motion for summary judgment.

If on motion under § 15-6-56 judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

Source: SD RCP, Rule 56 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-56(e). Form of affidavits for summary judgment--Further testimony--Defense required.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in § 15-6-56, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in § 15-6-56, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Source: SD RCP, Rule 56 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-56(f). Opposing summary judgment when affidavits are unavailable.

Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

Source: SD RCP, Rule 56 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-56(g). Summary judgment affidavits made in bad faith.

Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to § 15-6-56 are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

Source: SD RCP, Rule 56 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-57. Declaratory judgments.

The procedure for obtaining a declaratory judgment pursuant to chapter 21-24, shall be in accordance with this chapter, and the right to trial by jury may be demanded under the circumstances and in the manner provided in §§ 15-6-38 and 15-6-39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.

Source: SD RCP, Rule 57, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

Effective April 1, 2025

15-6-58(a). Prompt entry--Form--Effective date--Filing.

Subject to the provisions of § 15-6-54(b), judgment upon the jury verdict or upon the decision of the court, shall be promptly rendered. Every judgment shall be set forth on a separate document. A judgment or an order becomes complete and effective when reduced to writing, signed by the court or judge, attested by the clerk and filed in the clerk's office. The clerk, immediately after the filing of any judgment, shall docket the same as provided by law. Judgments of divorce pursuant to chapter 25-4 and judgments of foreclosure pursuant to chapter 21-47 or chapter 21-48 shall be docketed by the notation "see file." Entry of the judgment shall not be delayed for the taxing of costs.

Source: SDC 1939 & Supp 1960, § 33.1702; SD RCP, Rule 58, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1990, ch 149, § 6; SL 2006, ch 330 (Supreme Court Rule 06-56), eff. July 1, 2006; SDCL § 15-6-58; Supreme Court Rule 25-07, eff. Apr. 1, 2025.

Effective April 1, 2025

15-6-58(b). Proposed order or judgment--Time to confer--Notation--Objection procedure--Waiver--Modification.

A party directed by the court to prepare an order or judgment without findings of fact and conclusions of law shall prepare a proposed order or judgment and provide it to all parties within five days of being directed.

Thereafter, the parties shall have five days in which to confer in an effort to agree upon the form of the proposed order or judgment. If all parties agree as to the form of the proposed order or judgment, or if no objection to the form of the order or judgment is timely received from any opposing party, then the party preparing the proposed order or judgment shall insert “NO OBJECTION AS TO FORM BY COUNSEL” in the lower left-hand corner of the final page of the proposed order or judgment. If any party timely objects to the form of the order or judgment and the parties are unable to reach an agreement as to form during such five-day period, then each party shall submit a proposed order or judgment to the court within two days after the expiration of the five-day confer period.

Any objections as to form are waived by a party’s failure to timely submit a proposed order or judgment to the court as provided in this rule, unless the party’s failure is excused by the court for good cause shown.

This procedure may be modified by the court.

Source: Supreme Court Rule 25-07, eff. Apr. 1, 2025.

15-6-58. Entry of judgment and orders--Effective date.

Effective April 1, 2025

15-6-58. Entry of judgment and orders.

Source: Supreme Court Rule 25-07, eff. Apr. 1, 2025.

Commission Note: The prior § 15-6-58 was transferred to § 15-6-58(a) upon the effective date of Supreme Court Rule 25-07.

15-6-59

15-6-59. New trials--Amendment of judgments

15-6-59(a). Grounds for new trial.

A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes:

(1) Irregularity in the proceedings of the court, jury, or adverse party or any order of the court or abuse of discretion by which either party was prevented from having a fair trial;

(2) Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors;

(3) Accident or surprise which ordinary prudence could not have guarded against;

(4) Newly discovered evidence, material to the party making the application, which he could not with reasonable diligence have discovered and produced at the trial;

(5) Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice;

(6) Insufficiency of the evidence to justify the verdict or other decision or that it is against law;

(7) Error of law occurring at the trial; provided, that in the case of claim of error, admission, rejection of evidence, or instructions to the jury or failure of the court to make a finding or conclusion upon a material issue which had not been proposed or requested, it must be based upon an objection, offer of proof or a motion to strike.

On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

When the motion be made for a cause mentioned in subparagraphs (1), (2), (3), or (4), it must be made upon affidavits attached to and made a part of the motion, unless as to a cause mentioned in subparagraph (1), the irregularity or abuse of discretion is sufficiently disclosed by the record to support such motion. When the motion is made under subparagraph (6) it shall state the particulars wherein the evidence is claimed to be insufficient.

Source: SDC 1939 & Supp 1960, §§ 33.1605, 33.1606; SD RCP, Rule 59 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1978, ch 178, § 568.

15-6-59(b). Time for motion for new trial--Rulings thereon--Extension of time.

The motion for a new trial stating the grounds thereof shall be served and filed not later than ten days after the notice of entry of the judgment.

The court shall make and file the order granting or denying such new trial within twenty days after the service and filing of such motion, unless for good cause shown, the court files an order within said twenty days extending the time for entering such order. If a motion for new trial has not been determined by the court and no order has been entered by the court extending the time for such ruling within twenty days from the date of service and filing of such motion, it shall be deemed denied.

Source: SDC 1939 & Supp 1960, §§ 33.1606, 33.1608, 33.1610; SD RCP, Rule 59 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 16; Supreme Court Rule 82-32.

15-6-59(c). Hearing and answering affidavits on motion for new trial.

Upon the presentation of such motion the court shall by order fix the time and place for hearing thereof, and in such order shall fix the time for service thereof, and for answering said motion and for service of answering affidavits, if any.

Source: SDC 1939 & Supp 1960, § 33.1606; SD RCP, Rule 59 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-59(d). New trial on initiative of court.

Not later than ten days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.

Source: SDC 1939 & Supp 1960, § 33.1609; SD RCP, Rule 59 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969.

15-6-59(e). Procedure upon hearing of motion for new trial.

On the hearing reference may be had in all cases to the pleadings, orders, rulings and files of the court, and to depositions, documentary evidence, shorthand report, and transcript, if one has been made, and the court may take the testimony of witnesses as to causes enumerated in subdivisions 15-6-59(a)(1), (2), (3), and (4), which testimony may be reduced to writing and transcribed on the request of either party and filed in the office of the clerk as part of the record.

Source: SDC 1939 & Supp 1960, § 33.1606; SD RCP, Rule 59 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-59(f). Motion for new trial not required as foundation for appeal in certain cases.

A motion for a new trial shall not be necessary as a prerequisite to obtain appellate review as to matters specified in subdivisions 15-6-59(a)(6) and (7), and all of such matters may be reviewed on an appeal from the judgment, regardless of whether a motion for a new trial has been made, provided such matter has been submitted to the trial court as prescribed in § 15-26A-8.

Source: SDC 1939 & Supp 1960, § 33.1607; SD RCP, Rule 59 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-59(g). Order granting new trial must show grounds upon which based.

The trial court when granting a motion for new trial shall in its order specify each and every ground upon which it bases such order; all grounds urged upon such motion and not specified in the order shall be deemed to have been overruled by the trial court.

Source: SDC 1939 & Supp 1960, § 33.1611; SD RCP, Rule 59 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-60

15-6-60. Relief from judgment or order

15-6-60(a). Relief from clerical mistakes.

Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the settled record is transmitted to the clerk of the Supreme Court and thereafter while the appeal is pending may be so corrected with leave of the Supreme Court.

Source: SDC 1939 & Supp 1960, § 33.0108; SD RCP, Rule 60 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-60(b). Relief on ground of mistake--Inadvertence--Excusable neglect--Newly discovered evidence--Fraud.

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect;

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under § 15-6-59(b);

(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;

(4) The judgment is void;

(5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) Any other reason justifying relief from the operation of the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. Section 15-6-60 does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided by statute or to set aside a judgment for fraud upon the court.

Source: SDC 1939 & Supp 1960, § 33.0108; SD RCP, Rule 60 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-61. Harmless Error.

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

Source: SD RCP, Rule 61, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-62

15-6-62. Stay of proceedings to enforce a judgment

15-6-62(a). Automatic stay of execution--Exceptions--Injunctions and receiverships.

Except as stated herein or as otherwise ordered by the court for good cause shown, or upon default judgment, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of thirty days after its entry. Unless otherwise ordered by the court, temporary or permanent judgment in an action for an injunction or in a receivership action shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of § 15-6-62(c) govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.

Source: SD RCP, Rule 62 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule No. 4, 1972, effective January 1, 1973; SL1978, ch 155, § 3.

15-6-62(b). Stay of execution on motion for new trial or for judgment.

In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial made pursuant to § 15-6-59, or of a motion for relief from a judgment or order made pursuant to § 15-6-60, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to § 15-6-50.

Source: SD RCP, Rule 62 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-62(c). Injunction pending appeal.

Injunction pending appeal shall be as provided in chapter 15-26A.

Source: SD RCP, Rule 62 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-62(d). Stay upon appeal.

Stay upon appeal shall be as provided in chapter 15-26A.

Source: SD RCP, Rule 62 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-62(e). Stay in favor of the state or agency thereof.

Any stay in favor of the state or agency thereof shall be as provided in chapter 15-26A.

Source: SD RCP, Rule 62 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-62(f). Power of Supreme Court not limited.

The provisions in § 15-6-62 do not limit any power of the Supreme Court to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.

Source: SD RCP, Rule 62 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-62(g). Stay of judgment as to multiple claims or multiple parties.

When a court has ordered a final judgment under the conditions stated in § 15-6-54(b), the court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.

Source: SD RCP, Rule 62 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-63. Disability of a judge.

If by reason of death, sickness, or other disability or separation from office, a judge before whom an action has been tried is unable to perform the duties to be by him performed after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may, in his discretion, grant a new trial.

Source: SD RCP, Rule 63, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-64. Seizure of person or property.

At the commencement of and during the course of an action, all remedies providing for seizure of person or property for the purpose of securing satisfaction of the judgment ultimately to be entered in the action are available under the circumstances and in the manner provided by the law of the state.

Source: SD RCP, Rule 64, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-65

15-6-65. Injunctions and restraining orders

15-6-65(a). Preliminary injunction.

No preliminary injunction shall be issued without notice to the adverse party.

Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Even when this consolidation is not ordered, any evidence received on an application for a preliminary injunction which would be admissible on the trial on the merits, becomes part of the record on the trial and need not be repeated at the trial. This paragraph shall be construed and applied to save to the parties any rights they may have to trial by a jury.

Source: SL 1978, ch 155, § 4.

15-6-65(b). Temporary restraining order without notice.

Where no provision is made by statute, a temporary restraining order may be granted without written or oral notice to the adverse party or his attorney only if:

(1) It clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or his attorney can be heard in opposition; and

(2) The applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice or the reasons supporting his claim that notice should not be required.

Every temporary restraining order granted without notice shall be indorsed with the date and hour of issuance; shall be filed forthwith in the clerk's office and entered of record; shall define the injury and state why it is irreparable and why the order was granted without notice; and, except in actions arising under chapters 25-3 and 25-4, shall expire by its terms within such time after entry, not to exceed ten days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time and takes precedence over all matters except older matters of the same character. When the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the court shall dissolve the temporary restraining order. On two days' notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the court may prescribe, the adverse party may appear and move its dissolution or modification and in that event the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require. Temporary restraining orders by their very nature may not be appealed.

Source: SD RCP, Rule 65, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SDCL, § 15-6-65; SL 1978, ch 155, § 4.

15-6-65(c). Undertaking required on preliminary injunction or temporary restraining order--Ascertainment of damages.

Where no provision is made by statute for security on a preliminary injunction or temporary restraining order, the court shall require a written undertaking on the part of the applicant with or without sureties in such sum as the court deems proper, to the effect that the applicant will pay to the party enjoined such costs and damages not exceeding the amount to be specified, as he may sustain by reason of the preliminary injunction or temporary restraining order, if the court finally decides that the applicant was not entitled thereto. The damages may be ascertained by reference or otherwise as the court shall direct. No such security shall be required of the State of South Dakota or of an officer or agency thereof.

Source: SDC 1939 & Supp 1960, § 37.4306; SDCL, § 21-8-10; SL 1978, ch 155, § 4.

15-6-65(d). Contents of order--Parties bound.

Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. In addition, and pursuant to § 15-6-52(a), the court for preliminary injunctions shall set forth the findings of fact and conclusions of law which constitute the grounds of its action.

Source: SL 1978, ch 155, § 4.

15-6-66. Receivers.

An action wherein a receiver has been appointed shall not be dismissed except by order of the court. The practice in the administration of estates by receivers or by other similar officers appointed by the court shall be in accordance with statute and the practice heretofore followed in courts of this state. In all other respects the action in which the appointment of a receiver is sought or which is brought by or against a receiver is governed by this chapter.

Source: SD RCP, Rule 66, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-67

15-6-67. Deposit in court

15-6-67(a). Deposit in an action.

In an action in which any part of the relief sought is a judgment for a sum of money or the disposition of a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing. Money paid into court under § 15-6-67 shall be deposited and withdrawn as ordered by the court.

Source: SD RCP, Rule 67 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-67(b). Deposit in court by substitution.

A defendant against whom an action is pending upon a contract or for specific real or personal property may at any time before answer upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place and discharge him from liability to either party on his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct; and the court may in its discretion make the order.

Source: SDC 1939 & Supp 1960, § 33.0415; SD RCP, Rule 67 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-67(c). Deposit in court when no action is brought.

Whenever any person has in his possession or control as bailee or otherwise, any personal property to which two or more persons make adverse claims, or he has notice of such claims and is unable to determine or is in doubt as to the rightful owner or who is rightfully entitled to the possession thereof, he may apply to the circuit judge of the circuit wherein such property is situated, upon an affidavit describing the property, stating its value and the nature of the controversy concerning the same, for an order designating a depository, and such judge shall thereupon designate some suitable depository to receive and care for such property, subject to the orders of the circuit court within the county wherein the property is situated; and the person having any such property in his possession or control having deposited the same with such depository, shall forthwith notify personally or by registered or certified mail, all persons of whom he has knowledge or notice who have or claim to have any interest in or lien upon such property or any part thereof, of such deposit; and upon giving such notice such person shall be released and discharged from further liability to any person on account of such property; provided that he may be required, upon the application of any person interested therein, to appear and make disclosures before the court in which any action affecting such property may be pending, or the judge who designates such depository, concerning said property. If the address of any person having or making any claim cannot be ascertained, an affidavit to that effect shall be filed with the depository and the giving of notice to such person shall not be required.

Source: SDC 1939 & Supp 1960, § 33.0415; SD RCP, Rule 67 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-67(d). Court may order deposit or seizure of property.

When it is admitted by the pleading or examination of a party that he has in his possession or control any money or other thing capable of delivery which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court or delivered to such other party, with or without security, subject to further direction. If such order be disobeyed, the court may punish the disobedience as a contempt, and may also require the sheriff or other proper officer to take the money or property and deposit or deliver it in accordance with the direction given.

Source: SDC 1939 & Supp 1960, §§ 37.5201, 37.5203; SD RCP, Rule 67 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-67(e). Voluntary partial payment as credit against judgment.

After entry of judgment any voluntary partial payment of a claim shall be treated as a credit against the judgment, and shall be deductible from the amount of the judgment.

Source: SL 1966, ch 141; SDCL, § 19-2-10; SL 1979, ch 154, § 4.

15-6-68. Offer of Judgment.

At any time more than ten days before the trial begins, any party may serve upon an adverse party an offer to allow judgment to be taken against the party for money or property or to the effect specified in the offer, with costs then accrued. If, within ten days after the service of the offer, the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. If the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than ten days prior to the commencement of hearings to determine the amount or extent of liability.

Source: SDC 1939 & Supp 1960, §§ 33.1809, 33.1810; SD RCP, Rule 68, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 2006, ch 273 (Supreme Court Rule 05-12), effective Nov. 2, 2005.

15-6-69. Execution.

Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with applicable statute or rule. In aid of a judgment or execution, the judgment creditor, or his successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor in the manner provided in these rules.

Source: SD RCP, Rule 69, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 17.

15-6-70. Judgment for specific acts--Vesting title.

If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party. On application of the party entitled to performance, the clerk shall issue a writ of attachment or sequestration against the property of the disobedient party to compel obedience to the judgment. The court may also in proper cases adjudge the party in contempt. If real or personal property is within the state, the court in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others and such judgment has the effect of a conveyance executed in due form of law. When any order or judgment is for the delivery of possession, the party in whose favor it is entered is entitled to a writ of execution or assistance upon application to the clerk.

Source: SDC 1939 & Supp 1960, § 33.1906; SD RCP, Rule 70, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-71. Process in behalf of and against persons not parties.

When an order is made in favor of a person who is not a party to the action, he may enforce obedience to the order by the same process as if he were a party; and, when obedience to an order may be lawfully enforced against a person who is not a party, he is liable to the same process for enforcing obedience to the order as if he were a party.

Source: SD RCP, Rule 71, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-72. Expedited civil actions--General provisions.

(1) Eligible actions. This article IX governs "expedited civil actions" in which the sole relief sought is a money judgment and in which all claims (other than compulsory counterclaims) for all damages by or against any one party total $75,000 or less, including damages of any kind, penalties, and attorneys' fees, but excluding prejudgment interest accrued prior to entry of judgment, post-judgment interest, and costs.

(2) Excluded actions. This article IX does not apply to small claims or domestic relations cases.

(3) Electing expedited procedures. An eligible plaintiff may elect to proceed by filing an expedited civil action and by certifying that the sole relief sought is a money judgment and that all claims (other than compulsory counterclaims) for all damages by or against any one party total $75,000 or less, including damages of any kind, penalties, and attorneys' fees, but excluding prejudgment interest accrued prior to entry of judgment, post-judgment interest, and costs. The certification must be on a form approved by the Supreme Court and signed by all plaintiffs and their attorneys if represented. (See Form 27). The certification is not admissible to prove a plaintiff's damages in the expedited civil action or in any other proceeding.

(4) South Dakota Rules of Civil Procedure otherwise apply. Except as otherwise specifically provided by this rule, the South Dakota Rules of Civil Procedure are applicable to expedited civil actions.

(5) Limitation on damages. Except as provided in subdivision (6), a party proceeding under this article IX may not recover a judgment in excess of $75,000, nor may a judgment be entered against a party in excess of $75,000, excluding prejudgment interest that accrues prior to entry of judgment, post-judgment interest, and costs. The jury, if any, must not be informed of the $75,000 limitation. If the jury returns a verdict for damages in excess of $75,000 for or against a party, the court may not enter judgment on that verdict in excess of $75,000, exclusive of prejudgment interest that accrues prior to entry of judgment, post-judgment interest, and costs.

(6) Stipulated expedited civil action. In a civil action not eligible under subdivision (1) and not excluded by subdivision (2), the parties may request to proceed as an expedited civil action upon the parties' filing of a Joint Motion to Proceed as an Expedited Civil Action. (See Form 28). If the court grants the parties' motion, and unless the parties have otherwise agreed, the parties will not be bound by the $75,000 limitation on judgments in subdivision (5). The parties may enter into additional stipulations regarding damages and attorneys' fees. Unless otherwise ordered, the joint motion and any stipulations must not be disclosed to the jury.

(7) Termination of expedited civil action. Upon timely application of any party, the court may terminate application of this rule and enter such orders as are appropriate under the circumstances if:

(A) The moving party makes a specific showing of substantially changed circumstances or other good cause sufficient to render the application of this rule unfair; or

(B) A party has in good faith filed a compulsory counterclaim that seeks relief other than that allowed under subdivision (1).

(8) Permissive counterclaims. Permissive counterclaims are subject to the $75,000 limitation on damages under subdivision (5), unless the court severs the permissive counterclaim.

(9) Side. As used throughout this article IX, the term "side" refers to all the litigants with generally common interests in the litigation.

Source: SL 2016, ch 238 (Supreme Court Rule 15-16), eff. Jan. 1, 2016.

15-6-72.1. Local intergovernmental actions--Expedited action--Alternative dispute resolution.

In order to facilitate the quick and efficient resolution of disputes, whenever two or more local governmental bodies are engaged in a legal dispute, on motion of any party or on its own, the court may order the parties to proceed:

(1) Under the expedited civil action process set out in §§ 15-6-73 to 15-6-76.1, inclusive, regardless of any amount in controversy; or

(2) To alternative dispute resolution, other than binding arbitration, on such terms as the court may order.

Source: SL 2021, ch 85, § 1.

15-6-72.2. Definition--Local government body.

For the purposes of § 15-6-72.1, the term, local government body, shall mean:

(1) Any county, municipality, township, or unincorporated territory;

(2) Any school district;

(3) Any organization that offers a public service, organized or authorized by a county, municipality, or township, including law enforcement, fire protection services, or emergency medical services; and

(4) Any special district including ambulance districts under chapter 34-11A, conservation districts under chapter 38-8, consumer power districts under chapters 49-35 through 49-40, drainage basis utility districts under chapter 46A-10B, improvement districts under chapter 7-25A, irrigation districts under chapters 46A-4 through 46A-7, predator control districts under chapter 40-37, public hospital districts under chapter 34-10, regional railroad authorities under chapter 49-17A, regional recycling and waste management districts under chapter 34A-16, road districts under chapter 31-12A, rural fire protection districts under chapter 34-31A, sanitary districts under chapter 34A-5, water development districts under chapters 46A-3A through 46A-3E, water project districts under chapter 46A-18, water user districts under chapter 46A-9, or watershed districts under chapter 46A-14.

Source: SL 2021, ch 85, § 2.

15-6-73. Discovery in expedited civil actions.

(1) Discovery period. Except upon agreement of the parties or leave of court granted upon a showing of good cause, all discovery must be completed no later than 60 days before trial.

(2) Limited and simplified discovery procedures. Except upon agreement of the parties or leave of court granted upon a showing of good cause, discovery in expedited civil actions is subject to the following additional limitations:

(A) Interrogatories to parties. Each side may serve no more than 10 interrogatories, including all discrete subparts, on any other side under § 15-6-33.

(B) Production of documents. Each side may serve no more than 10 requests for production, including all discrete subparts, on any other side under § 15-6-34.

(C) Requests for admission. Each side may serve no more than 10 requests for admission, including all discrete subparts, on any other side under § 15-6-36. This limit does not apply to requests for admission of the genuineness of documents that the party intends to offer into evidence at trial.

(D) Depositions upon oral examination.

(i) Parties. One deposition of each party may be taken. With regard to corporations, partnerships, voluntary associations, or any other groups or entities named as a party, one representative deponent may be deposed.

(ii) Other deponents. Each side may take the deposition of up to two nonparties.

(3) Number of expert witnesses. Each side is entitled to one retained expert, except upon agreement of the parties or leave of court granted upon a showing of good cause.

(4) Motion for leave of court. A motion for leave of court to modify the limitations provided in this section must be in writing and must set forth the proposed additional discovery and the reasons establishing good cause for its use.

Source: SL 2016, ch 238 (Supreme Court Rule 15-16), eff. Jan. 1, 2016.

15-6-74. Motions.

(1) Motions to dismiss. Any party may file any motion permitted by § 15-6-12(b). Unless the court orders a stay, the filing of a motion to dismiss will not eliminate or postpone otherwise applicable pleading or disclosure requirements.

(2) Motions for summary judgment.

(A) Any party may file any motion permitted by § 15-6-56.

(B) Limited number. Each party may file no more than one motion for summary judgment under § 15-6-56. The motion may include more than one ground.

Source: SL 2016, ch 238 (Supreme Court Rule 15-16), eff. Jan. 1, 2016.

15-6-75. Procedure for expedited trials.

(1) Demand for jury trial. Any party who desires a jury trial of any issue triable of right by a jury must file and serve upon the other parties a demand for jury trial pursuant to § 15-6-38(b). Otherwise, expedited civil actions will be tried to the court.

(2) Trial setting. The court shall set the expedited civil action for trial on a date certain, which will be a firm date except that the court may later reschedule the trial at the convenience of the parties. Unless the court otherwise orders for good cause shown, expedited civil actions must be tried within one year of filing.

(3) Pretrial submissions.

(A) The trial court shall provide for the timing and extent of such submissions by appropriate pre-trial order, at the court's discretion.

(B) In addition to the pretrial submissions required by the trial court, the parties must file one jointly proposed set of jury instructions and verdict forms. If a jury instruction or verdict form is controverted, each side must include its specific objections, supporting authority, and, if desired, a proposed alternative instruction or verdict form for the court's approval, denial, or modification. Both stipulated and alternative proposed jury instructions and verdict forms must be set forth in one document that is filed electronically in word processing format with the court.

(4) Expedited civil jury trial. Unless otherwise ordered, the jury in an expedited civil jury trial will consist of twelve persons selected from a panel of eighteen prospective jurors. Each side must strike three prospective jurors. The parties may stipulate to a jury of fewer than twelve upon such conditions as agreed to by the parties and the trial court.

(5) Expedited nonjury trial. The court trying an expedited civil action without a jury may, in its discretion, dispense with findings of fact and conclusions of law and instead render judgment on a general verdict, special verdicts, or answers to interrogatories that are accompanied by relevant legal instructions that would be used if the action were being tried to a jury. When the court follows this procedure, parties must make their record with respect to objections to or requests for instructions, special verdicts, and answers to interrogatories as in a jury trial. Post-trial motions will be permitted as in a jury trial except that the court may, in lieu of ordering a new trial, enter new verdicts or answers to interrogatories on the existing trial record.

(6) Time limit for trial. Expedited civil actions should ordinarily be submitted to the jury within two business days from the commencement of trial. Unless the court allows additional time for good cause shown, each side is allowed no more than six hours to complete jury selection, opening statements, presentation of evidence, examination and cross-examination of witnesses, and closing arguments. Time spent on objections, bench conferences, and challenges for cause to a juror is not included in the time limit.

(7) Evidence.

(A) Stipulations. Parties should stipulate to factual and evidentiary matters to the greatest extent possible.

(B) Documentary evidence admissible without custodian certification or testimony. The court may overrule objections based on authenticity and hearsay to the admission of a document, notwithstanding the absence of testimony or certification from a custodian or other qualified witness, if:

(i) The party offering the document gives notice to all other parties of the party's intention to offer the document into evidence at least 90 days in advance of trial. The notice must be given to all parties together with a copy of any document intended to be offered.

(ii) The document on its face appears to be what the proponent claims it is.

(iii) The document on its face appears not to be hearsay or appears to fall within a hearsay exception set forth in South Dakota Rule of Evidence subdivision 19-19-803 (3), (4), (6), (7), (8), (9), (10), (11), (12), (13), or (18).

(iv) The objecting party has not raised a substantial question as to the authenticity or trustworthiness of the document.

(v) Nothing in subdivision (7) (B) affects the operation of other South Dakota Rules of Evidence such as §§ 19-19-402 to 19-19-404, inclusive.

(vi) Nothing in this section authorizes admission of a document that contains hearsay within hearsay, unless the court determines from the face of the document that each part of the combined statements conforms with an exception to the hearsay rule set forth above.

(vii) Any authenticity or hearsay objections to a document as to which notice has been provided under subdivision (7) (B) (i) must be made within 30 days after receipt of the notice.

(C) Health care provider statement in lieu of testimony. A statement of a health care provider in lieu of testimony shall be permitted in an expedited civil action and shall be governed by the requirements of § 19-19-803.2.

Source: SL 2016, ch 238 (Supreme Court Rule 15-16), eff. Jan. 1, 2016.

15-6-76. Settlement conference--Alternative dispute resolution.

Unless the parties have agreed to engage in alternative dispute resolution or are required to do so by contract or statute, the court may not, by order or local rule, require the parties to engage in a settlement conference or any other form of alternative dispute resolution.

Source: SL 2016, ch 238 (Supreme Court Rule 15-16), eff. Jan. 1, 2016.

15-6-76.1. Claim preclusion--Issue preclusion.

Judgments or orders in an expedited civil action may not be relied upon to establish claim preclusion or issue preclusion unless the party seeking to rely on a judgment or order for preclusive effect was either a party or in privity with a party in the expedited civil action.

Source: SL 2016, ch 238 (Supreme Court Rule 15-16), eff. Jan. 1, 2016.

15-6-77

15-6-77. Courts of record and clerks

15-6-77(a). Trial courts of record always open.

Trial courts of record shall be deemed always open for the purpose of filing any pleading or other proper paper, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, and rules.

Source: SD RCP, Rule 77 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-77(b). Trials and hearings--Orders in chambers.

All trials upon the merits shall be conducted in open court and so far as convenient in a regular courtroom. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the circuit; but no hearing, other than one ex parte, shall be conducted outside the circuit without the consent of all parties affected thereby.

Source: SDC 1939 & Supp 1960, § 33.1401; SD RCP, Rule 77 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-77(c). Clerk's office and orders by clerk.

All motions and applications in the clerk's office for issuing mesne process, for issuing final process to enforce and execute judgments, and for other proceedings which do not require allowance or order of the court are grantable of course by the clerk; but his action may be suspended or altered or rescinded by the court upon cause shown.

Source: SD RCP, Rule 77 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-78

15-6-78, 15-6-79. Reserved

15-6-80. Stenographic report or transcript as evidence.

Whenever the testimony of a witness at a trial or hearing which was stenographically reported is admissible in evidence at a later trial or hearing, it may be proved by the transcript thereof duly certified by the person who reported the testimony.

Source: SD RCP, Rule 80, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-81

15-6-81. Applicability

15-6-81(a). Procedure preserved.

This chapter does not govern pleadings, practice, and procedure in the statutory and other proceedings included in but not limited to those listed in Appendix A to this chapter insofar as they are inconsistent or in conflict with this chapter.

Source: SD RCP, Rule 81 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-81(B)

15-6-81(b). Omitted

15-6-81(c). Appeals to circuit courts.

This chapter does not supersede the provisions of statutes relating to appeals to the circuit courts.

Source: SD RCP, Rule 81 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-81(d). Chapter incorporated into statutes.

Where any statute heretofore or hereafter enacted, whether or not listed in Appendix A to this chapter, provides that any act in a civil proceeding shall be done in the manner provided by law, such act shall be done in accordance with this chapter.

Source: SD RCP, Rule 81 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-82. Jurisdiction and venue.

This chapter shall not be construed to extend or limit the jurisdiction of the circuit courts of South Dakota or the venue of actions therein.

Source: SD RCP, Rule 82, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-83. Rules by courts of record.

A majority of the judges in each circuit court may make and amend rules governing practice not inconsistent with the rules contained in this chapter. Notice of the intent to adopt, amend, or repeal any rule shall be given by filing a copy of the proposed rule, amendment, or repeal in the office of the clerk of courts in each county within the circuit to be affected and by giving notice indicating the purpose of the proposed rule, amendment, or repeal in general terms and fixing a time and place, not sooner than thirty days following the date of notice, at which any person may appear and be heard regarding the proposed adoption, amendment, or repeal. Notice of the proposed adoption, amendment, or repeal of several rules may be given at one time and in one notice. The notice required by this rule may be given by posting notice at the Unified Judicial System's website at http://www.ujs.sd.gov/ or the State Bar of South Dakota's website at http://www.sdbar.org/. Electronic mail notification shall also be provided to members of the State Bar of South Dakota.

Any rule, or amendment or repeal thereof, adopted pursuant to this section shall become effective upon being filed with and approved by the Supreme Court. Upon being approved, all such rules, amendments or repeals thereof shall be filed by the Supreme Court with the code counsel, who shall publish them as an appendix to Title 15 of the code. Any rules heretofore adopted pursuant to this section are hereby nullified.

Source: SD RCP, Rule 83, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 85-9; SL 2018, ch 286 (Supreme Court Rule 17-07), eff. Sept. 1, 2017.

15-6-84. Forms.

The forms contained in the Appendix of Forms are sufficient under this chapter and are intended to indicate the simplicity and brevity of statement which this chapter contemplates.

Source: SD RCP, Rule 84, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-85. Title.

This chapter shall be known as Rules of Civil Procedure and cited as RCP.

Source: SD RCP, Rule 85, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-86. Effective date.

This chapter governs all proceedings and actions brought after July 1, 1966, and also all further proceedings in actions then pending, except to the extent that in the opinion of the court its application in a particular action pending when the rules take effect would not be feasible, or would work injustice, in which event the procedure existing at the time the action was brought applies.

Source: SD RCP, Rule 86, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

15-6-A

APPENDIX A. SPECIAL PROCEEDINGS (See § 15-6-81(a))

Following is a list of statutes and special proceedings which will be excepted from these rules insofar as they are inconsistent or in conflict with the procedure and practice provided by these rules:

SDCL
3-5 Approval of bond of public officer.
3-17 Actions for removal of local officers.
7-32 Proceedings for abandonment and sale of county property.
9-6 Dissolution of municipalities.
11-3 Proceeding to alter or vacate plats.
12-21 Recount of ballots and certiorari to review.
12-22 General election contest.
12-22 Primary election contest.
13-17 Compromise of judgments against school districts.
15-8 Supplementary judgment against joint debtors.
15-15 Proceedings relating to unorganized counties.
21-4 Insofar as it provides for action by parent, brother, sister
or person in loco parentis.
21-14, 21-41 Actions to determine adverse claims to real estate.
21-16 Forcible entry and detainer.
21-22 Administration of trusts.
21-23 Property sales in trusts, etc.
21-25 Stipulated cases.
21-26 Confession of judgment.
21-27 Habeas corpus.
21-29 Writ of mandamus.
21-30 Writ of prohibition.
21-31 Writ of certiorari.
21-34 Contempt proceedings.
21-35 Eminent domain.
21-36 Escheats.
21-37 Changing name of persons and places.
21-38 Restoration of public records.
21-44 Termination of life estates.
21-45 Partition of real estate.
21-47 Foreclosure of real estate mortgages by action.
21-51 Discharge of expired contracts, mortgages and other liens.
23-19 Adjudication of obscenity.
25-4 Divorce.
25-5 Habeas corpus to determine custody of minor.
25-7 Proceedings in transfer of property when spouse abandoned,
imprisoned or committed for mental illness.
25-8 Illegitimacy.
25-9 Reciprocal enforcement of support.
31-19 Condemnation proceedings for state highways.
31-19 Eminent domain.
34A-2 Enforcement of water pollution control orders.
38-8 Enforcement of land use regulations.
39-1 Proceeding for condemnation of food or drugs.
44-9 Mechanics liens.

45-4 Survey of disputed mining claim.
45-5 Acquisition of right-of-way to mines.
46A-6 Approval of bonds of irrigation districts.
46A-10 Determination of drainage matters.
46A-13 Proceeding for interstate drainage districts.
47-6, 47-7 Proceedings by dissenting shareholders, involuntary
dissolution and liquidation of business corporations.
47-18 Stockholders derivative actions, involuntary dissolution and
liquidation of cooperatives.
47-26 Involuntary dissolution and liquidation of nonprofit
corporations.
47-29 Proceedings for sale of land by cemetery corporations.
49-3 Compelling production of evidence before public utilities
commission.
49-13 Proceedings to enforce public utilities commission orders.
49-35, 49-40 Organization and dissolution of consumer power districts.
51-27 Liquidation of banks.
54-9 Administration of assignment for benefit of creditors.

Source: SD RCP, Appendix A, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.

APPENDIX B. CIRCUIT COURT RULES (See § 15-6-83)

Following are rules of practice adopted by circuit courts which have been filed with and approved by the Supreme Court.

SECOND JUDICIAL CIRCUIT CIVIL RULES

CIV ONE. Repealed by Supreme Court Order eff. Aug. 5, 2010.

CIV TWO. FILING OF PLEADINGS. Repealed

Source: SL 1994, ch 402 (Supreme Court Order), eff. Feb. 15, 1994; repealed (Supreme Court Order), eff. December 6, 2019.

CIV THREE. Repealed by SL 1999, ch 274 (Supreme Court Order), eff. Aug. 25, 1998.

CIV FOUR. LIBRARY. Repealed

Source: SL 1994, ch 402 (Supreme Court Order), eff. Feb. 15, 1994; repealed (Supreme Court Order), eff. December 6, 2019.

CIV FIVE. DRESS CODE. Repealed

Source: SL 1994, ch 402 (Supreme Court Order), eff. Feb. 15, 1994; repealed (Supreme Court Order), eff. December 6, 2019.

CIV SIX. DISPENSING POWER. Repealed

Source: SL 1994, ch 402 (Supreme Court Order), eff. Feb. 15, 1994; repealed (Supreme Court Order), eff. December 6, 2019.

CIV SEVEN. SIGNING OF SUMMONS IN JUVENILE PROCEDURES. Repealed

Source: SL 1999, ch 274 (Supreme Court Order), eff. Aug. 25, 1998; repealed (Supreme Court Order), eff. December 6, 2019.

CIV EIGHT. COURT APPOINTED ATTORNEYS. Repealed

Source: SL 1999, ch 274 (Supreme Court Order), eff. Aug. 25, 1998; Supreme Court Order eff. Aug. 5, 2010; repealed (Supreme Court Order), eff. December 6, 2019.

CIV NINE. UNCONTESTED MOTIONS. Repealed

Source: SL 1999, ch 274 (Supreme Court Order), eff. Aug. 25, 1998; repealed (Supreme Court Order), eff. December 6, 2019.

CIV TEN. BRIEF TO BE FILED WITH MOTION. Repealed

Source: SL 1999, ch 274 (Supreme Court Order), eff. Aug. 25, 1998; repealed (Supreme Court Order), eff. December 6, 2019.

CIV ELEVEN. Repealed by Supreme Court Order eff. Aug. 5, 2010.

SIXTH JUDICIAL CIRCUIT

Rule 1. Notice of hearing.

In addition to the time and date set for hearing, the notice of hearing on any motion (except any motion where less than eleven days notice is given) may state the last date upon which an objection, resistance or response (requiring a hearing) shall be filed and served on parties in interest, which date shall be at least three business days in advance of the date set for hearing. The notice of hearing shall also state that if no objection, resistance or response is timely filed and served, the movant need not appear at the hearing and the court may grant the relief requested without further hearing.

Source: Sixth Circuit Rule 95-1.

Rule 2. Length of briefs.

(a)Monospaced typeface. The Appellant's or Movant's brief shall not exceed forty pages. The Appellee's or Respondent's responsive brief shall not exceed forty pages. Any reply brief submitted in the discretion of the Appellant or Movant shall not exceed twenty pages. All briefs submitted for consideration shall comply with the formatting requirements in Supreme Court Rule 13-06. No additional briefs may be submitted without prior permission of the judge assigned to the case.

(b)Proportionally spaced typeface. The Appellant's or Movant's brief shall not exceed thirty-two pages. The Appellee's or Respondent's responsive brief shall not exceed thirty-two pages. Any reply brief submitted in the discretion of the Appellant or Movant shall not exceed sixteen pages. All briefs submitted for consideration shall comply with the formatting requirements of Supreme Court Rule 13-06. No additional briefs may be submitted without prior permission of the judge assigned to the case.

(c)Upon approval of the judge assigned to the case, 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 submission date of the brief, specifying in detail the reasons why additions are necessary and stating the number of additional pages or words requested.

Source: Approved by the Supreme Court May 14, 2013.

SEVENTH JUDICIAL CIRCUIT

PRE-TRIAL CONFERENCE CHECK LIST

A pre-trial conference check list shall be prepared by counsel for each party and furnished to the Court and opposing counsel at least two business days prior to the date set for the first pre-trial conference. Said check list shall be in substantially the following form: (Material in parentheses is merely explanatory and is not a part of the form).

STATE OF SOUTH DAKOTA ) SS IN CIRCUIT COURT

COUNTY OF _____________ ) ________ JUDICIAL CIRCUIT

(CAPTION) ) File No. ________

PRE-TRIAL CONFERENCE CHECK LIST

1. Issues remaining for trial: (Set forth the issues joined by the pleadings which have not been disposed of by pre-trial motion or agreement of the parties).

2. Fact summary: (Set forth a summary of the facts the party believes will be proven by the evidence).

3. Uncontroverted and stipulated facts: (Set forth uncontroverted and agreed upon facts, if any, and any which, although not yet agreed upon, could be).

4. Legal questions: (Set forth the legal questions raised by the issues. Either note citations here or attach a pre-trial brief with respect to these questions).

5. Witnesses--Nature of testimony and availability: (List witnesses, state nature of their testimony, whether deposition has been taken or is desired, and availability of witness--notice required, location, any problems involved, etc.)

6. Trial time: (Set forth the estimated time required for trial of the case to the 1/2 day, including impaneling of a jury, if a jury trial).

7. Date certain: (State either "Requested" or "Not Requested." If requested, set forth reason why and dates when counsel, party and witnesses will be ready and available for trial. If not requested, set forth number of days or weeks of advance notice required--if more than one week, explain).

8. Jury instructions: (In jury cases, proposed instructions shall be prepared on the issues by the party having the burden of proof on such an issue. The party bringing the action shall also prepare the general instructions, involving the burden of proof, verdict and other routine matters).

(Where applicable, South Dakota Pattern Instructions shall be used. Proposed instructions shall be prepared in accordance with the provisions of SDCL 15-6-51(a). The source of the instructions shall appear on the copies. The original and one copy shall accompany the original of the pre-trial check list furnished to the Court. Copies shall accompany copies of the check list furnished to opposing counsel).

9. Motions pending: (List motions in pleadings, etc., remaining to be disposed of).

10. Exhibits: (List all exhibits you intend to use at trial).

11. Other: (set forth other matters which you feel should be discussed at the pre-trial conference).

Dated this __________ day of ________________ , 20 ____ .

Attorney for: _________________________________________________

Address: ____________________________________________________

Phone: ______________________________________________________

Source: SL 1990, ch 444 (Supreme Court Order dated April 7, 1989).

APPENDIX C. APPENDIX OF FORMS (See § 15-6-84)

INTRODUCTORY STATEMENT

1. The following forms are intended for illustration only. They are limited in number. No attempt is made to furnish a manual of forms. Each form assumes the action to be brought in the Second Judicial Circuit Court in Minnehaha County, South Dakota.

2. Except where otherwise indicated each pleading, motion, and other paper should have a caption similar to that of the summons (Form 1), with the designation of the particular papers substituted for the word "Summons." In the caption of the summons and in the caption of the complaint all parties must be named but in other pleadings and papers, it is sufficient to state the name of the first party on either side, with an appropriate indication of other parties. See §§ 15-6-4(a), 15-6-7(b)(2), and 15-6-10(a).

3. Each pleading, motion, and other paper is to be signed in his individual name by at least one attorney of record (§ 15-6-11). The attorney's name is to be followed by his address as indicated in Form 2. In forms following Form 2 the signature and address are not indicated.

4. If a party is not represented by an attorney, the signature and address of the party are required in place of those of the attorney.

Form 1. Summons

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF MINNEHAHA SECOND JUDICIAL CIRCUIT

A.B., Plaintiff

vs. SUMMONS

C.D., Defendant

To the Above-Named Defendant:

You are hereby summoned and required to serve upon _____, plaintiff's attorney, whose address is _____, an answer to the complaint which (is herewith served upon you) 1 ((will be) 2 (was on the _____ day of _____, 20__) 3 filed in the office of the clerk of the Circuit Court of the Second Judicial Circuit at Sioux Falls in and for the County of Minnehaha, State of South Dakota,) within 30 days after service of this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint.

(This action involves, affects, or brings in question real property situated in the County of Minnehaha, State of South Dakota, described as follows: 4

The object of the above entitled action is _____ 5

(The plaintiff makes no personal claim against you in the action) 6

(This summons shall be served on (or before) the _____ day of _____, 20__) 7

__________ Attorney for Plaintiff 8

This summons, in the language of the first paragraph, with included variations, is issued pursuant to § 15-6-4. For the form of summons in actions DETERMINING ADVERSE CLAIMS TO REAL ESTATE SEE § 21-41-7. Reference should be had in all instances to statutory provisions relating to a particular remedy or proceeding.

Source: SD RCP, Form 1.

1 Use when complaint is served with summons.

2 Use where summons is not served and is to be filed.

3 Use where service by publication requires statement of date and place of filing. (§ 15-9-18)

4 Description of real estate required pursuant to § 21-45-5 where service is by publication in action for PARTITION OF REAL ESTATE. A description of the JUDGMENT is required in a summons to show cause in SUPPLEMENTARY JUDGMENT PROCEEDINGS against joint debtors. (§§ 15-8-1 to 15-8-6, inclusive.)

5 For contents of summons: CONDEMNATION § 21-35-9; ESCHEATS § 21-36-9.

6 For use when no personal claim is asked. See § 15-9-6.

7 Section 15-6-4(c) provides for endorsement fixing time for service.

8 State's attorney commencing civil action on behalf of county note requirement for the endorsement by the judge of the circuit court pursuant to § 7-19-1.

Form 2. Complaint on a promissory note

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF MINNEHAHA SECOND JUDICIAL CIRCUIT

A.B., Plaintiff

vs. COMPLAINT

C.D. AND E.F., Defendants

1. Defendant on or about June 1, 1955, executed and delivered to plaintiff a promissory note (in the following words and figures: (here set out the note verbatim)); (a copy of which is hereto annexed as Exhibit A); (whereby defendant promised to pay to plaintiff or order on June 1, 1956 the sum of _____ dollars with interest thereon at the rate of six percent per annum).

2. Defendant owes to plaintiff the amount of said note and interest.

Wherefore plaintiff demands judgment against the defendant for the sum of _____ dollars, interest and costs.

Signed: _______________________________________________________________

Attorney for Plaintiff

Address: ______________________________________________________________

Note:

The pleader may use the material in one of the three sets of brackets. His choice will depend upon whether he desires to plead the document verbatim, or by exhibit, or according to its legal effect.

Under this chapter free joinder of claims is permitted. See §§ 15-6-8(e) and 15-6-18. Consequently, the claims set forth in each and all of the following forms may be joined with the complaint or with each other. Ordinarily each claim should be stated in a separate division of the complaint, and the divisions should be designated as counts successively numbered. In particular this chapter permits alternative and inconsistent pleading. See Form 11.

Source: SD RCP, Form 2.

Form 3. Complaint on an account

1. Defendant owes plaintiff _____ dollars according to the account hereto annexed as Exhibit A.

Wherefore (etc. as in Form 2).

Source: SD RCP, Form 3.

Form 4. Complaint for goods sold and delivered

1. Defendant owes plaintiff _____ dollars for goods sold and delivered by plaintiff to defendant between June 1, 1956, and December 1, 1956.

Wherefore (etc. as in Form 2).

Note:

This form may be used where the action is for an agreed price or for the reasonable value of the goods.

Source: SD RCP, Form 4.

Form 5. Complaint for money lent

1. Defendant owes plaintiff _____ dollars for money lent by plaintiff to defendant on June 1, 1956.

Wherefore (etc. as in Form 2).

Source: SD RCP, Form 5.

Form 6. Complaint for money paid by mistake

1. Defendant owes plaintiff _____ dollars for money paid by plaintiff to defendant by mistake on June 1, 1956, under the following circumstances: (here state the circumstances with particularity--see § 15-6-9(b)).

Wherefore (etc. as in Form 2).

Source: SD RCP, Form 6.

Form 7. Complaint for money had and received

1. Defendant owes plaintiff _____ dollars for money had and received from one G.H. on June 1, 1956, to be paid by defendant to plaintiff.

Wherefore (etc. as in Form 2).

Source: SD RCP, Form 7.

Form 8. Complaint for negligence

1. On June 1, 1956, in a public highway called Phillips Avenue in Sioux Falls, South Dakota, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.

2. As a result plaintiff was thrown down and had his leg broken and was otherwise injured, was prevented from transacting his business, suffered great pain of body and mind, and incurred expenses for medical attention and hospitalization in the sum of one thousand dollars.

Wherefore plaintiff demands judgment against defendant in an amount to be determined by the trier of fact.

Note:

Since contributory negligence is an affirmative defense, the complaint need contain no allegation of due care of plaintiff.

Source: SD RCP, Form 8; SL 2023, ch 215 (Supreme Court Rule 22-14), eff. Jan. 1, 2023.

Form 9. Complaint for negligence where plaintiff is unable to determine definitely whether the person responsible is C.D. or E.F. or whether both are responsible

A.B., Plaintiff

vs. COMPLAINT

C.D. and E.F., Defendants

1. On June 1, 1956, in a public highway called Phillips Avenue in Sioux Falls, South Dakota, defendant, C.D. or defendant E.F., or both defendants, C.D. and E.F. negligently drove or caused to be driven a motor vehicle against plaintiff who was then crossing said highway.

Wherefore plaintiff demands judgment against C.D. or against E.F. or against both in the sum of _____ dollars and costs.

Source: SD RCP, Form 9; SL 2023, ch 215 (Supreme Court Rule 22-14), eff. Jan. 1, 2023.

Form 10. Complaint for conversion

1. On or about December 1, 1956, defendant converted to his own use ten bonds of the _____ company (here insert brief identification as by number and issue) of the value of _____ dollars, the property of plaintiff.

Wherefore plaintiff demands judgment against defendant in the sum of _____ dollars, interest and costs.

Source: SD RCP, Form 10.

Form 11. Complaint for specific performance of contract to convey land

1. On or about December 1, 1956, plaintiff and defendant entered into an agreement in writing a copy of which is hereto annexed as Exhibit A.

2. In accord with the provisions of said agreement plaintiff tendered to defendant the purchase price and requested a conveyance of the land, but defendant refused to accept the tender and refused to make the conveyance.

3. Plaintiff now offers to pay the purchase price.

Wherefore plaintiff demands (1) that defendant be required specifically to perform said agreement, (2) damages in the sum of one thousand dollars, and (3) that if specific performance is not granted plaintiff have judgment against defendant in the sum of _____ dollars.

Note:

Here, as in Form 2, plaintiff may set forth the contract verbatim in the complaint or plead it, as indicated, by exhibit, or plead it according to its legal effect. Plaintiff may seek legal or equitable relief or both under this chapter.

Source: SD RCP, Form 11.

Form 12. Complaint on claim for debt and to set aside fraudulent conveyance under § 15-6-18(b)

A.B., Plaintiff

vs. COMPLAINT

C.D. and E.F., Defendants

1. Defendant C.D. on or about _____ executed and delivered to plaintiff a promissory note (in the following words and figures: (here set out the note verbatim)); (a copy of which is hereto annexed as Exhibit A); (whereby defendant C.D. promised to pay to plaintiff or order on _____ the sum of five thousand dollars with interest thereon at the rate of _____ percent per annum).

2. Defendant C.D. owes to plaintiff the amount of said note and interest.

3. Defendant C.D. on or about _____ conveyed all of his property, real and personal (or specify and describe) to defendant E.F. for the purpose of defrauding plaintiff and hindering and delaying the collection of the indebtedness evidenced by the note above referred to.

Wherefore plaintiff demands:

(1) That plaintiff have judgment against defendant C.D. for _____ dollars and interest; (2) that the aforesaid conveyance to defendant E.F. be declared void and the judgment herein be declared a lien on said property; (3) that plaintiff have judgment against the defendants for costs.

Source: SD RCP, Form 12.

Form 13. Complaint for interpleader and declaratory relief

1. On or about June 1, 1956, plaintiff issued to G.H. a policy of life insurance whereby plaintiff promised to pay to K.L. as beneficiary the sum of _____ dollars upon the death of G.H. The policy required the payment by G.H. of a stipulated premium on June 1, 1956, and annually thereafter as a condition precedent to its continuance in force.

2. No part of the premium due June 1, 1956, was ever paid and the policy ceased to have any force or effect on July 1, 1956.

3. Thereafter, on September 1, 1956, G.H. and K.L. died as the result of a collision between a locomotive and the automobile in which G.H. and K.L. were riding.

4. Defendant C.D. is the duly appointed and acting personal representative of the will of G.H.; defendant E.F. is the duly appointed and acting personal representative of the will of K.L.; defendant X.Y. claims to have been duly designated as beneficiary of said policy in place of K.L.

5. Each of defendants, C.D., E.F., and X.Y. is claiming that the above-mentioned policy was in full force and effect at the time of the death of G.H.; each of them is claiming to be the only person entitled to receive payment of the amount of the policy and has made demand for payment thereof.

6. By reason of these conflicting claims of the defendants, plaintiff is in great doubt as to which defendant is entitled to be paid the amount of the policy, if it was in force at the death of G.H.

Wherefore plaintiff demands that the court adjudge:

(1) That none of the defendants is entitled to recover from plaintiff the amount of said policy or any part thereof.

(2) That each of the defendants be restrained from instituting any action against plaintiff for the recovery of the amount of said policy or any part thereof.

(3) That, if the court shall determine that said policy was in force at the death of G.H., the defendants be required to interplead and settle between themselves their rights to the money due under said policy, and that plaintiff be discharged from all liability in the premises except to the person whom the court shall adjudge entitled to the amount of said policy.

(4) That plaintiff recover its costs.

Source: SD RCP, Form 13.

Form 14. Motion to dismiss, presenting defenses of failure to state a claim, of lack of service of process, and of lack of jurisdiction under § 15-6-12(b)

The defendant moves the court as follows:

1. To dismiss the action because the complaint fails to state a claim against defendant upon which relief can be granted.

2. To dismiss the action or in lieu thereof to quash the return of service of summons on the grounds (a) that the defendant is a corporation organized under the laws of Delaware and was not and is not subject to service of process within the state of South Dakota, and (b) that the defendant has not been properly served with process in this action, all of which more clearly appears in the affidavits of M.N. and X.Y. hereto annexed as Exhibit A and Exhibit B respectively.

Signed: _______________________________________________________________

Attorney for Defendant

Address: _____________________________________________________________

Source: SD RCP, Form 14; SL 2023, ch 215 (Supreme Court Rule 22-14), eff. Jan. 1, 2023.

Form 15. Answer presenting defenses under § 15-6-12(b)

First Defense

The complaint fails to state a claim against defendant upon which relief can be granted.

Second Defense

If defendant is indebted to plaintiff for goods mentioned in the complaint, he is indebted to them jointly with G.H. G.H. is alive; is a citizen of the state of South Dakota, is subject to the jurisdiction of the court and has not been made a party.

Third Defense

Defendant admits the allegation contained in paragraphs 1 and 4 of the complaint; alleges that he is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 of the complaint; and denies each and every other allegation contained in the complaint.

Fourth Defense

The right of action set forth in the complaint did not accrue within six years next before the commencement of this action.

Counterclaim

(Here set forth any claim as a counterclaim in the manner in which a claim is pleaded in the complaint.)

Cross-Claim Against Defendant M.N.

(Here set forth the claim constituting a cross-claim against defendant M.N. in the manner in which a claim is pleaded in a complaint.)

Note:

The above form contains examples of certain defenses provided for in § 15-6-12(b). The first defense challenges the legal sufficiency of the complaint. It is a substitute for a general demurrer or a motion to dismiss.

The second defense embodies the old plea in abatement; the decision thereon, however, may well provide under §§ 15-6-19 and 15-6-21 for the citing in of the party rather than an abatement of the action.

The third defense is an answer on the merits.

The fourth defense is one of the affirmative defenses provided for in § 15-6-8(c).

The answer also includes a counterclaim and a cross-claim.

Source: SD RCP, Form 15.

Form 16. Answer to complaint set forth in Form 7, with counterclaim for interpleader

Defense

Defendant admits the allegations stated in paragraph 1 of the complaint; and denies the allegations stated in paragraph 2 to the extent set forth in the counterclaim herein.

Counterclaim for Interpleader

1. Defendant received the sum of _____ dollars as a deposit from E.F.

2. Plaintiff has demanded the payment of such deposit to him by virtue of an assignment of it which he claims to have received from E.F.

3. E.F. has notified the defendant that he claims such deposit, that the purported assignment is not valid, and that he holds the defendant responsible for the deposit.

Wherefore defendant demands:

1. That the court order E.F. to be made a party defendant to respond to the complaint and to this counterclaim.

2. That the court order the plaintiff and E.F. to interplead their respective claims.

3. That the court adjudge whether the plaintiff or E.F. is entitled to the sum of money.

4. That the court discharge defendant from all liability in the premises except to the person it shall adjudge entitled to the sum of money.

5. That the court award to the defendant its costs and attorney's fees.

Source: SD RCP, Form 16.

Form 17. Motion to bring in third-party defendant

Defendant moves for leave to make E.F. a party to this action and that there be served upon him summons and third-party complaint as set forth in Exhibit A hereto attached.

Signed: ______________________________________________________________

Attorney for Defendant C.D.

Address: ________________________________

Source: SD RCP, Form 17; SL 2023, ch 215 (Supreme Court Rule 22-14), eff. Jan. 1, 2023.

Form 18. Summons and complaint against third-party defendant

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF MINNEHAHA SECOND JUDICIAL CIRCUIT

A.B., Plaintiff

vs.

C.D., Defendant and Third-Party SUMMONS

Plaintiff

vs.

E.F., Third-Party Defendant

To the above-named Third-Party Defendant:

You are hereby summoned and required to serve upon ________, plaintiff's attorney whose address is ________, and upon ________, who is attorney for C.D., defendant and third-party plaintiff, and whose address is ________, an answer to the third-party complaint which is herewith served upon you within 30 days after the service of this summons upon you exclusive of the day of service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the third-party complaint. There is also served upon you herewith a copy of the complaint of the plaintiff which you may but are not required to answer.

____________________________

Attorney for C.D.

Third-Party Plaintiff

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF MINNEHAHA SECOND JUDICIAL CIRCUIT

A.B., Plaintiff

vs. THIRD-PARTY

C.D., Defendant and Third-Party COMPLAINT

Plaintiff

vs.

E.F., Third-Party Defendant

1. Plaintiff A.B. has filed against defendant C.D. a complaint, a copy of which is hereto attached as "Exhibit A."

2. (Here state the grounds upon which C.D. is entitled to recover from E.F., all or part of what A.B. may recover from C.D. The statement should be framed as in an original complaint.)

Wherefore C.D. demands judgment against third-party defendant E.F. for all sums that may be adjudged against defendant C.D. in favor of plaintiff A.B.

Signed: ________________________________

Attorney for C.D.

Third-Party Plaintiff

Address: ________________________________

Note:

Under § 15-6-14(a) a defendant who files a third-party complaint not later than 10 days after serving his original answer need not obtain leave of court to bring in the third-party defendant by service under § 15-6-4. Form 18 is intended for use in these cases.

Under § 15-6-5(a) requiring, with certain exceptions, that papers be served upon all the parties to the action, the third-party defendant, even if he makes no answer to the plaintiff's complaint, is obliged to serve upon the plaintiff a copy of his answer to the third-party complaint. Similarly, the defendant is obliged to serve upon the plaintiff a copy of the summons and complaint against the third-party defendant.

Source: SD RCP, Form 18.

Form 19. Notice of Hearing

To: [adverse party] and [his/her/its] attorney[s], [attorney’s[s’] address]:

PLEASE TAKE NOTICE that [moving party]’s [name of motion] will be brought on for hearing before the Honorable [name of judge], Circuit Court Judge, in the [name of County] County Courthouse, [City], South Dakota, on the _____ day of _________, ____, at ____ _.m., or as soon thereafter as counsel can be heard.

Source: SD RCP, Form 19; SL 2023, ch 215 (Supreme Court Rule 22-14), eff. Jan. 1, 2023.

Form 20. Motion to intervene as a defendant under § 15-6-24

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF MINNEHAHA SECOND JUDICIAL CIRCUIT

A.B., Plaintiff

vs. MOTION TO INTERVENE

C.D., Defendant AS A DEFENDANT

E.F., Inc., Applicant for

Intervention

E.F., Inc., moves for leave to intervene as a defendant in this action, in order to assert the defenses set forth in its proposed answer, of which a copy is hereto attached, on the ground that it is the manufacturer and vendor to the defendant of the automobile described in plaintiff's complaint, the brakes of which are alleged to have been defectively manufactured; and as such, if the allegations of plaintiff's complaint be true, would be the one ultimately liable to the plaintiff, and as such has a defense to plaintiff's claim presenting both questions of law and of fact which are common to the main action.

Signed: _______________________________________________________________

Attorney for E.F., Inc.,

Applicant for Intervention

Address: ________________________________

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF MINNEHAHA SECOND JUDICIAL CIRCUIT

A.B., Plaintiff

vs. INTERVENER'S ANSWER

C.D., Defendant

E.F., Inc., Intervener

First Defense

Intervener admits the allegations stated in paragraphs 1 and 4 of the complaint; denies the allegations in paragraph 3, and denies the allegations in paragraph 2 in so far as they assert that the brakes of the automobile described in plaintiff's complaint were defectively manufactured.

Second Defense

Plaintiff was guilty of contributory negligence which proximately caused or contributed to the accident and to the personal injuries which he sustained therein, if any, in that he drove said automobile at a high rate of speed in a negligent and careless manner after the discovery of the defective condition of the brakes which contributory negligence on the part of the plaintiff was greatly more than slight in comparison to the negligence, if any, of this intervener.

Signed: _______________________________________________________________

Attorney for E.F., Inc.,

Intervener

Address: ______________________________________________________________

Note:

Under § the motion to intervene must be served upon all parties as provided in § 15-6-5.

Source: SD RCP, Form 20.

Form 21.Motion to Compel under § 37.

[Movant], pursuant to SDCL 15-6-37(a), respectfully moves the Court for an order compelling [opposing party] to [specific relief sought]. The Court should enter the requested order because:

1. The discovery was properly served;

2. [Opposing party] has failed to respond to the discovery;

3. Counsel for [movant] certifies that he has, in good faith, conferred or attempted to confer with [opposing party] in an effort to secure the information or material without court action;

all as set forth in the accompanying Brief in Support of [movant]’s Motion to Compel Discovery.

Attach the following certification:

Certification of Good Faith Efforts to Resolve

Counsel for [movant] hereby certifies, pursuant to SDCL 15-6-37(a)(2), that counsel attempted, in good faith, to resolve this discovery dispute without involving the Court.

On [date], the undersigned communicated to [opposing party] that [opposing party’s] responses to outstanding discovery requests were inadequate because [explain what you believe you are entitled to.]

[list each successive communication, including:

a. who participated,

b. the date, and, if relevant, the time of each communication, and

c. the manner of each communication.]

Summarize the outcome of these communications, identifying the substantive dispute that has stalemated the parties’ discussions, and which the Court must resolve.

Source: SD RCP, Form 21; SL 2023, ch 215 (Supreme Court Rule 22-14), eff. Jan. 1, 2023.

Form 22. Request for admission under § 15-6-36

Plaintiff A.B. requests defendant C.D. within _____ days after service of this request to make the following admissions for the purpose of this action only and subject to all pertinent objections to admissibility which may be interposed at the trial:

1. That each of the following documents, exhibited with this request, is genuine.

(Here list the documents and describe each document.)

2. That each of the following statements is true.

(Here list the statements.)

Signed: _______________________________________________________________

Attorney for Plaintiff

Address: ______________________________________________________________

Source: SD RCP, Form 22

Form 23. Allegation of reason for omitting party

When it is necessary, under § 15-6-19(c), for the pleader to set forth in his pleading the names of persons who ought to be made parties, but who are not so made, there should be an allegation such as the one set out below:

John Doe named in this complaint is not made a party to this action (because he is not subject to the jurisdiction of the court); (or for reasons stated).

Source: SD RCP, Form 23.

Form 24. Suggestion of death upon the record under § 15-6-25(a)(1)

A.B. (describe as a party, or as personal representative, or other representative or successor of C.D., the deceased party) suggests upon the record, pursuant to § 15-6-25(a)(1), the death of C.D. (describe as party) during the pendency of this action.

Source: SD RCP, Form 24.

Form 25. Judgment on jury verdict

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF MINNEHAHA SECOND JUDICIAL CIRCUIT

A.B., Plaintiff

vs. JUDGMENT

C.D., Defendant

This action came on for trial before the Court and a jury, Honorable John Marshall, Circuit Judge, presiding, and the issues having been duly tried and the jury having duly rendered its verdict,

It is Ordered and Adjudged

(that the plaintiff A.B. recover of the defendant C.D. the sum of _____, with interest thereon at the rate of _____ percent as provided by law, and his costs of action in the sum of _____.)

(that the plaintiff take nothing, that the action be dismissed on the merits, and that the defendant C.D. recover of the plaintiff A.B. his costs of action in the sum of _____.)

Dated at Sioux Falls, South Dakota, this _____ day of _____, 20__.

BY THE COURT:

Judge

ATTEST:

______________________________

Clerk of Courts

Note:

1. This form is illustrative of the judgment to be entered upon the general verdict of a jury. It deals with the cases where there is a general jury verdict awarding the plaintiff money damages or finding for the defendant but is adaptable to other situations of jury verdicts. See § 15-6-58.

2. The Rules contemplate a simple judgment promptly entered. See § 15-6-54(a). Every judgment shall be set forth on a separate document. See § 15-6-58.

Source: SD RCP, Form 25.

Form 26. Judgment on decision by the court

STATE OF SOUTH DAKOTA IN CIRCUIT COURT

COUNTY OF MINNEHAHA SECOND JUDICIAL CIRCUIT

A.B., Plaintiff

vs. JUDGMENT

C.D., Defendant

This action came on for (trial) (hearing) before the Court, Honorable John Marshall, Circuit Judge, presiding, and the issues having been duly (tried) (heard) and a decision having been duly rendered.

It is Ordered and Adjudged

(that the plaintiff A.B. recover of the defendant C.D. the sum of _____, with interest thereon at the rate of _____ percent as provided by law, and his costs of action in the sum of _____.)

(that the plaintiff take nothing, that the action be dismissed on the merits, and that the defendant C.D. recover of the plaintiff A.B. his costs of action in the sum of _____.)

Dated at Sioux Falls, South Dakota, this _____ day of _____, 20__.

BY THE COURT:

Judge

ATTEST:

______________________________

Clerk of Courts

Note:

1. This form is illustrative of the judgment to be entered upon a decision of the court. It deals with the cases of decisions by the court awarding a party only money damages or costs, but is adaptable to other decisions by the court. See § 15-6-58.

2. See also paragraph 2 of the Note to Form 25.

Source: SD RCP, Form 26.

Form 27. Expedited civil action certification

STATE OF SOUTH DAKOTA ) IN CIRCUIT COURT

: SS

COUNTY OF __________ ) ________________ JUDICIAL CIRCUIT

__________, Civ. __________

Plaintiff,

v. EXPEDITED CIVIL ACTION CERTIFICATION

__________,

Defendant.

Plaintiff, ________________________________________, together with Plaintiff's attorney,

Name of Plaintiff

________________________________________, elect to bring this lawsuit as an Expedited

Name of attorney

Civil Action under article IX of the Rules of Civil Procedure.

Plaintiff certifies that the sole relief sought is a money judgment and that all claims (other than compulsory counterclaims) for all damages by or against any one party total $75, 000 or less, including damages of any kind, penalties, and attorneys' fees, but excluding prejudgment interest accrued prior to entry of judgment, post judgment interest, and costs.

Plaintiff certifies the following:

1. I am a plaintiff in this action.

2. If I am represented by an attorney, I have conferred with my attorney about using the Expedited Civil Action procedures available to parties in the State of South Dakota.

3. I understand that by electing to proceed under Expedited Civil Action procedures, the total amount of my recovery will not exceed $75, 000, excluding prejudgment interest accrued prior to entry of judgment, post judgment interest, and court costs. Additionally, no single defendant can be liable for more than $75,000 to all plaintiffs combined, excluding prejudgment interest accrued prior to entry of judgment, post judgment interest, and court costs.

4. I understand that if a jury were to award more than $75, 000 as damages to me, or if a jury were to award more than $75, 000 in total against a single defendant, the trial judge would reduce the amount of the judgment to $75, 000, plus any applicable interest and court costs to which I may be entitled.

With this knowledge, I agree to proceed under the Expedited Civil Action procedures.

Dated this __________ day of __________, 20 __________.

__________

Plaintiff

Oath and Signatures

I, ______________________________, certify under penalty of perjury and pursuant to the

Print Plaintiff's Name

laws of the State of South Dakota that the preceding is true and correct.

______________ ______, 20__________,

Month Day Year

_____________________________ ____________________________________________

Handwritten signature of Plaintiff Full name of Plaintiff; first, middle, last

____________________________________________

Plaintiff's attorney's name, if applicable

____________________________________________

Signature of attorney, if applicable

____________________________________________

Law firm, if applicable

____________________________________________

Mailing address of attorney (or Plaintiff if unrepresented)

______________________________________________

Telephone number of attorney (or Plaintiff if unrepresented)

_____________________________________________

Email address of attorney (or Plaintiff if unrepresented)

_____________________________________________

Additional email address, if available

Source: SL 2016, ch 238 (Supreme Court Rule 15-16), eff. Jan. 1, 2016.

Form 28. Joint motion to proceed as expedited civil action

STATE OF SOUTH DAKOTA ) IN CIRCUIT COURT

: SS

COUNTY OF __________ ) ________________ JUDICIAL CIRCUIT

__________, Civ. __________

Plaintiff,

v. JOINT MOTION TO PROCEED AS EXPEDITED CIVIL ACTION

__________,

Defendant.

1. Pursuant to Supreme Court Rule 15-16 (article IX of the Rules of Civil Procedure), the parties hereby move upon stipulation that this action proceed as an Expedited Civil Action.

2. All parties agree to this motion.

3. If the court grants this joint motion, the parties acknowledge and agree that this case will be subject to the Expedited Civil Action rule, except for the limitations on damages as provided in 6-72(6).

Status of Trial Scheduling Order and Discovery Plan: Check one

G The parties have already filed a Trial Scheduling and Discovery Plan. This case has a current trial date of __________. The parties wish to retain that trial date.

G The parties will be filing a Trial Scheduling and Discovery Plan in an Expedited Civil Action case.

I certify that all parties and attorneys to this action have agreed to this Joint Motion and have been served with a copy.

__________ __________, 20 __________,

Month Day Year

_________________________________________

Party's or attorney's signature

_________________________________________

Plaintiff's attorney's name, if applicable

_________________________________________

Signature of attorney, if applicable

_________________________________________

Law firm, if applicable

__________________________________________

Mailing address of attorney (or Plaintiff if unrepresented)

____________________________________________

Telephone number of attorney (or Plaintiff if unrepresented)

____________________________________________

Email address of attorney (or Plaintiff if unrepresented)

_____________________________________________

Additional email address, if available

Source: SL 2016, ch 238 (Supreme Court Rule 15-16), eff. Jan. 1, 2016.