21-15-1      Claim of immediate delivery permitted in action for possession of personal property--Time of claim.
21-15-2      Contents of plaintiff's affidavit.
21-15-3      Order to defendant to show cause against delivery of property to plaintiff--Procedure in hearing.
21-15-4      Undertaking required of plaintiff--Contents--Waiver.
21-15-5      Cash in lieu of undertaking deposited with clerk or judge--Terms of deposit.
21-15-6      Seizure of property by sheriff--Safekeeping and delivery.
21-15-7      Seizure of property kept in building.
21-15-8      Papers served on defendant when property seized.
21-15-9      Defendant's exception to sufficiency of plaintiff's sureties--Failure to except as waiver.
21-15-10      Justification by plaintiff's sureties--Responsibility of sheriff--Exceptions waive right to retain property.
21-15-10.1      Notice of justification--Additional surety--Time and place of hearing.
21-15-10.2      Appearance and examination of sureties.
21-15-10.3      Allowance by judge--Effect.
21-15-10.4      Costs of justification.
21-15-11      Qualifications and justification of plaintiff's sureties.
21-15-11.1      Qualifications of bail.
21-15-12      Defendant's undertaking or deposit to retain possession--Terms.
21-15-13      Justification by defendant's sureties and delivery of property--Responsibility of sheriff--Delivery to plaintiff on failure to justify.
21-15-14      Delivery of property to plaintiff if return not required by defendant.
21-15-15      Notice to sheriff of third-party claim to property--Indemnity required of plaintiff.
21-15-16      Sheriff's report of proceedings--Papers attached--Contempt and amercement or civil action for failure or neglect.

21-15-1. Claim of immediate delivery permitted in action for possession of personal property--Time of claim.

The plaintiff, in an action to recover the possession of personal property may, at the time of issuing the summons or at any time before answer, claim the immediate delivery of such property as provided in this chapter.

Source: CCivP 1877, § 176; CL 1887, § 4972; RCCivP 1903, § 184; RC 1919, § 2411; SDC 1939 & Supp 1960, § 37.3801.

21-15-2. Contents of plaintiff's affidavit.

When an immediate delivery is claimed, an affidavit must be made by the plaintiff or by someone on his behalf, stating:

(1)    That the plaintiff is the owner of the property claimed, particularly describing it, or is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts in respect to which shall be set forth;

(2)    That the property is wrongfully detained by the defendant;

(3)    The alleged cause of the detention thereof, according to his best knowledge, information, and belief;

(4)    That the same has not been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or attachment against the property of the plaintiff, or, if so seized, that it is, by statute, exempt from such seizure;

(5)    The actual value of the property.

Source: CCivP 1877, § 177; CL 1887, § 4973; RCCivP 1903, § 185; RC 1919, § 2412; Supreme Court Rule 594, 1939; SDC 1939 & Supp 1960, § 37.3802.

21-15-3. Order to defendant to show cause against delivery of property to plaintiff--Procedure in hearing.

Upon filing the summons and complaint, and the affidavit pursuant to § 21-15-2, the judge of the court having jurisdiction shall by order, require cause to be shown at a specified time and place, after reasonable notice to the defendant, why the plaintiff should not have delivery of the property claimed. Except as inconsistent with the provisions of this chapter, chapter 15-6 shall apply to the conduct of the hearing.

Source: CCivP 1877, § 178; CL 1887, § 4974; RCCivP 1903, § 186; RC 1919, § 2413; Supreme Court Rule 594, 1939; SDC 1939 & Supp 1960, § 37.3802; SL 1973, ch 145, § 1.

21-15-4. Undertaking required of plaintiff--Contents--Waiver.

Before possession of any property may be taken, there must be furnished a written undertaking with one or more sufficient sureties approved by the sheriff, or a cash deposit, in double the value as stated in the affidavit, securing return of the property to the defendant if return thereof be adjudged, and the payment to the defendant of any such sum as may, for any cause, be recovered against the plaintiff. The court may waive the undertaking if the ownership of the property is not in question and the plaintiff is or has been a tenant of the defendant.

Source: SDC 1939 & Supp 1960, § 37.3803; SL 1993, ch 170.

21-15-5. Cash in lieu of undertaking deposited with clerk or judge--Terms of deposit.

If cash is deposited it shall be with the clerk or a judge of the court having jurisdiction, and his receipt taken therefor and such deposit shall thereupon remain in the custody of the court until legal order of the court disposing of it, as security for all of the obligations of the party depositing it under this chapter, the same as if a written undertaking had been furnished specifically assuming said obligations.

Source: SDC 1939 & Supp 1960, § 37.3807.

21-15-6. Seizure of property by sheriff--Safekeeping and delivery.

Upon receipt of the affidavit, endorsement, undertaking, and order authorizing delivery specified in §§ 21-15-2 to 21-15-4, inclusive, the sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall keep it in a safe place and deliver it to the party entitled thereto upon receiving his lawful fees and necessary expenses for keeping the same.

Source: CCivP 1877, § 185; CL 1887, § 4981; RCCivP 1903, § 193; RC 1919, § 2420; SDC 1939 & Supp 1960, § 37.3804; SL 1973, ch 145, § 2.

21-15-7. Seizure of property kept in building.

If the property, or any part thereof, be concealed in a building or enclosure, the sheriff shall publicly demand its delivery. If it be not forthwith delivered, he shall cause the building or enclosure to be broken open, and take the property into his possession and if necessary he may call to his aid the power of his county.

Source: CCivP 1877, § 184; CL 1887, § 4980; RCCivP 1903, § 192; RC 1919, § 2419; SDC 1939 & Supp 1960, § 37.3804.

21-15-8. Papers served on defendant when property seized.

The sheriff shall at the time of taking any property serve on the defendant a copy of the affidavit, endorsement, and undertaking or receipt for cash bond, and notice of levy showing the property taken by delivering the same to the defendant personally, if he can be conveniently found, or to his agent from whose possession the property is taken or if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion.

Source: CCivP 1877, § 179; CL 1887, § 4975; RCCivP 1903, § 187; RC 1919, § 2414; SDC 1939 & Supp 1960, § 37.3804.

21-15-9. Defendant's exception to sufficiency of plaintiff's sureties--Failure to except as waiver.

The defendant may, within three days after the service of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he shall be deemed to have waived all objection to them.

Source: CCivP 1877, § 180; CL 1887, § 4976; RCCivP 1903, § 188; RC 1919, § 2415; SDC 1939 & Supp 1960, § 37.3807.

21-15-10. Justification by plaintiff's sureties--Responsibility of sheriff--Exceptions waive right to retain property.

When the defendant excepts, the sureties shall justify on notice as set out in §§ 21-15-10.1 to 21-15-10.4, inclusive. The sheriff shall be responsible for the sufficiency of the sureties, until the objection to them is either waived as above provided, or until they shall justify, or new sureties shall be substituted and justify. If the defendant except to the sureties, he cannot retain the property, as provided in § 21-15-12.

Source: CCivP 1877, § 180; CL 1887, § 4976; RCCivP 1903, § 188; RC 1919, § 2415; SDC 1939 & Supp 1960, § 37.3807; SL 1984, ch 159, § 1.

21-15-10.1. Notice of justification--Additional surety--Time and place of hearing.

On receipt of notice the sheriff or defendant shall, within ten days thereafter, give to the plaintiff by whom the surety is subscribed, or to plaintiff's attorney, notice of the justification of surety. In case additional surety is given there shall be a new undertaking in the form prescribed. The notice shall specify a time not less than five nor more than ten days after service thereof and a place within the county where the action is pending, where hearing on the justification will be held, and that it will be held before the judge of the court, naming him, within such county.

Source: SL 1984, ch 159, § 2.

21-15-10.2. Appearance and examination of sureties.

For the purpose of justification, each of the sureties shall appear before the judge at the time and place mentioned in the notice, and may be examined on oath on the part of the defendant or the sheriff, or both, touching his sufficiency, in such manner as the judge, in his discretion, may think proper.

Source: SL 1984, ch 159, § 3.

21-15-10.3. Allowance by judge--Effect.

If the judge finds the surety sufficient, he shall endorse his allowance thereon, and cause it to be filed with the clerk; and the sheriff thereupon shall be exonerated from liability.

Source: SL 1984, ch 159, § 4.

21-15-10.4. Costs of justification.

The costs of the justification shall be paid by the plaintiff if the same is found not sufficient, but if sufficient, then the defendant shall pay the costs of the justification. The costs of such justification shall be taxed by the court as other costs are taxed.

Source: SL 1984, ch 159, § 5.

21-15-11. Qualifications and justification of plaintiff's sureties.

The qualifications of sureties and their justification shall be as prescribed in § 21-15-11.1, except that one personal surety, or a surety company authorized to do business in this state, or a cash deposit, shall be sufficient.

Source: CCivP 1877, § 183; CL 1887, § 4979; RCCivP 1903, § 191; RC 1919, § 2418; SDC 1939 & Supp 1960, § 37.3807; SL 1984, ch 159, § 6.

21-15-11.1. Qualifications of bail.

The qualifications of bail are as follows:

(1)    Each of them shall be a resident and freeholder within the State of South Dakota;

(2)    They shall each be worth double the amount of the undertaking, exclusive of property exempt from execution; but the court may allow more than one surety to justify severally in amounts less than that of the undertaking, if the whole justification is equivalent to that of two sufficient sureties.

Source: SL 1984, ch 159, § 7.

21-15-12. Defendant's undertaking or deposit to retain possession--Terms.

At any time before delivery of the property to the plaintiff, the defendant may, if he does not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, or receipt for cash deposit, as in this chapter provided, in amount and sufficiency as required on the undertaking of the plaintiff for the immediate delivery, and securing the plaintiff for delivery of the property if such delivery be adjudged and for the payment to the plaintiff of such sum as may for any cause be recovered against the defendant.

Source: CCivP 1877, § 181; CL 1887, § 4977; RCCivP 1903, § 189; RC 1919, § 2416; SDC 1939 & Supp 1960, § 37.3806.

21-15-13. Justification by defendant's sureties and delivery of property--Responsibility of sheriff--Delivery to plaintiff on failure to justify.

The defendant's sureties, upon a notice to the plaintiff of not less than two nor more than six days, shall justify in the same manner as upon bail on arrest; upon such justification the sheriff shall deliver the property to the defendant. The sheriff shall be responsible for the sufficiency of the defendant's sureties until they justify, or until justification is completed or expressly waived, and may retain the property until that time; but if they, or others in their place, fail to justify at the time and place appointed, he shall deliver the property to the plaintiff.

Source: CCivP 1877, § 182; CL 1887, § 4978; RCCivP 1903, § 190; RC 1919, § 2417; SDC 1939 & Supp 1960, § 37.3807.

21-15-14. Delivery of property to plaintiff if return not required by defendant.

If a return of the property be not required pursuant to § 21-15-12 within three days after the taking and service of papers on defendant, it shall be delivered to the plaintiff unless claimed in the meantime by a third person in the manner provided by this chapter.

Source: CCivP 1877, § 181; CL 1887, § 4977; RCCivP 1903, § 189; RC 1919, § 2416; SDC 1939 & Supp 1960, § 37.3806.

21-15-15. Notice to sheriff of third-party claim to property--Indemnity required of plaintiff.

If the property taken be claimed by any other person than the defendant or his agent, and such person shall make affidavit of his title thereto and right to the possession thereof, stating the grounds of such right and title, and serve the same upon the sheriff, the sheriff shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, shall indemnify the sheriff against such claim by an undertaking or deposit, in amount and sufficiency as required in the original affidavit for the delivery. No claim to such property by any other person than the defendant or his agent shall be valid against the sheriff, unless made as aforesaid; and notwithstanding such claim, when so made, he may retain the property a reasonable time to demand such indemnity.

Source: CCivP 1877, § 186; CL 1887, § 4982; RCCivP 1903, § 194; RC 1919, § 2421; SDC 1939 & Supp 1960, § 37.3805.

21-15-16. Sheriff's report of proceedings--Papers attached--Contempt and amercement or civil action for failure or neglect.

Within twenty days after taking the property, the sheriff shall make a verified report of his proceedings in taking and disposing of it, and file the same together with the original affidavit, order authorizing delivery, undertaking, or receipt, and a copy of his notice of levy, with the clerk of the court in which the action is pending.

The failure or neglect of the sheriff to make such verified report of his proceedings and file the same in the office of the clerk with the other documents above specified in the manner and within the time above required shall not however void his proceedings under the affidavit and endorsement but shall render him liable to punishment by the court as for contempt and liable by amercement or civil action to any person thereby injured in like manner as is provided with reference to writs, warrants and executions by § 15-18-44.

Source: CCivP 1877, § 187; CL 1887, § 4983; RCCivP 1903, § 195; RC 1919, § 2422; Supreme Court Rule 595, 1939; SDC 1939, § 37.3808; SL 1951, ch 196; SL 1973, ch 145, § 3.