5-22-1      Mechanics' and materialmen's lien on amounts due under contract.
5-22-2      Filing with public officer of account of claim--Effect of late filing--Agreed statement as equivalent of account.
5-22-3      Endorsement and report of accounts filed with public officer--Time of attachment of lien--Receipt or certified copy given.
5-22-4      Actions to enforce or determine lien--Parties to action--Assertion of lien by answer.
5-22-5      Judicial determination of validity of liens and order of payment.
5-22-6      Pro rata distribution if contract proceeds insufficient--Deficiency judgment against contractor--Restriction on public liability.
5-22-7      Limitation of actions to enforce lien.
5-22-8      Discharge of lien.
5-22-9      Notice by public contractor to file claims against subcontractors--Contents of notice.
5-22-10      Filing and publication of notice to file claims against subcontractors.
5-22-11      Claims and liens against contractor and public body barred by failure to file--Rights against subcontractor preserved.
5-22-12      Right of action not lost by loss of lien.

5-22-1. Mechanics' and materialmen's lien on amounts due under contract.

Any person who shall furnish skill, labor, materials, machinery, or supplies, services, or equipment, in connection with the carrying on of any work of construction, alteration, or repair of any public improvement work of the State of South Dakota, or any of its political subdivisions including counties, townships, municipalities, school districts, drainage districts, and any departments, bureaus, agencies, or commissions thereof to any person who shall have made any contract or subcontract therefor, shall have a lien for the same upon all moneys in the control of such public body due or to become due under such contract.

Source: SL 1895, ch 133, §§ 1, 9; RCCivP 1903, §§ 713, 721; RC 1919, §§ 1660, 1668; SL 1925, ch 221; SL 1929, ch 213; SDC 1939, § 39.0901.

5-22-2. Filing with public officer of account of claim--Effect of late filing--Agreed statement as equivalent of account.

Every person wishing to avail himself of the provisions of the statutes providing liens on proceeds of public improvement contracts shall, within twenty days after any item claimed by him shall have been furnished or any work done by him shall have been performed, file with the officer of such public body who is by law made the custodian of its official records, a just and true account of the demand due or to become due him after allowing all credits and verified by his affidavit. A failure to file the same within the time aforesaid shall not defeat the lien upon the amount remaining due to the contractor at the time of filing. If any person who shall have performed labor or furnished materials as provided in this chapter shall procure from the contractor a settlement and statement of his account, signed by the contractor and verified by his own affidavit, the same may be filed and shall have the same force and effect as the account heretofore mentioned.

Source: SL 1895, ch 133, § 2; RCCivP 1903, § 714; RC 1919, § 1661; SDC 1939, § 39.0902.

5-22-3. Endorsement and report of accounts filed with public officer--Time of attachment of lien--Receipt or certified copy given.

The officer of the public body with whom the account is filed shall endorse upon every account so filed, the date of the filing and report the same to the next meeting of the governing board of such public body. All liens so claimed shall attach from the time of such filing. The officer shall, if demanded, give the person filing, a receipt showing such date of filing or a certified copy of the account or substantial abstract thereof and filing thereon.

Source: SL 1895, ch 133, § 3; RCCivP 1903, § 715; RC 1919, § 1662; SDC 1939, § 39.0903.

5-22-4. Actions to enforce or determine lien--Parties to action--Assertion of lien by answer.

Any person having such lien may bring an action to enforce the same in the circuit court for the county where the work or improvement or any part thereof shall be situated. Actions may likewise be commenced to determine such lien by the public body or the contractor. The plaintiff in any such action must make all persons who shall have filed liens, the contractor, and the public body parties thereto.

Any person claiming a lien, if he be a defendant, may set forth such lien by answer.

Source: SL 1895, ch 133, § 4; RCCivP 1903, § 716; RC 1919, § 1663; SDC 1939, § 39.0904.

5-22-5. Judicial determination of validity of liens and order of payment.

The court shall determine the validity of all liens filed, the amount due upon each, the amount due to the contractor, and if the amount due to the contractor be sufficient, shall order the public body to pay the amounts of all liens adjudged valid to the persons entitled to the same and the costs of the action and the residue, if any, to the contractor.

Source: SL 1895, ch 133, § 4; RCCivP 1903, § 716; RC 1919, § 1663; SDC 1939, § 39.0904.

5-22-6. Pro rata distribution if contract proceeds insufficient--Deficiency judgment against contractor--Restriction on public liability.

If the amount due the contractor shall not be sufficient to pay all liens in full, the court shall order and direct the payment of the same, after deducting the costs of the action, to the persons whose liens are adjudged valid, ratably in proportion to the amounts of their several claims; and may render proper judgment against the contractor for any deficiencies.

The public body shall not be liable in any event for more than the amount due to the contractor under provisions of these statutes for any costs of the action.

Source: SL 1895, ch 133, § 4; RCCivP 1903, § 716; RC 1919, § 1663; SDC 1939, § 39.0904.

5-22-7. Limitation of actions to enforce lien.

All claims to liens under this chapter relating to public improvement contracts shall cease to have any validity or to be binding upon the public body or the contractor under the provisions of this chapter unless an action to enforce the same as hereinbefore provided shall be commenced within thirty days from the acceptance of the work for which the same shall be claimed or unless asserted under the provisions of §§ 5-22-9 to 5-22-11, inclusive.

Source: SL 1895, ch 133, § 5; RCCivP 1903, § 717; RC 1919, § 1664; SDC 1939, § 39.0905.

5-22-8. Discharge of lien.

Any such lien may be discharged:

(1)    By filing with the officer with whom the liens shall be filed a certificate of satisfaction of the claimant or his successor in interest duly acknowledged;

(2)    By lapse of the time within which an action to enforce the same may be commenced without such action having been commenced;

(3)    By satisfaction of any judgment that may be rendered in any action to foreclose such lien.

Source: SL 1895, ch 133, § 6; RCCivP 1903, § 718; RC 1919, § 1665; SDC 1939, § 39.0908.

5-22-9. Notice by public contractor to file claims against subcontractors--Contents of notice.

At any time after the completion of any work or improvement for any public body the contractor may issue notice as hereinafter provided, specifically stating that the improvement has been completed and requiring that all subcontractors or persons who furnished any items of labor, service, skill, material, equipment, or supplies for any subcontractor, naming them, must file their claims with the contractor within one hundred twenty days after the first publication of said notice.

The notice shall specify the name and address of the public body, department, bureau, commission, or agency thereof which caused the improvement to be made and the name and address of the contractor, and that claims shall be filed at both addresses so specified. If the contractor be a nonresident of the State of South Dakota, he shall specify a place and address within the state where claims may be filed.

Source: SL 1929, ch 213; SDC 1939, § 39.0906.

5-22-10. Filing and publication of notice to file claims against subcontractors.

The contractor shall file such notice with the governing board of the public body in charge of the improvement, and such board shall thereupon by resolution designate a newspaper or newspapers in the vicinity of the work or improvement in which publication of said notice shall be made. The notice shall be published in such newspaper or newspapers once each week for at least two successive weeks and proof of such publication filed with the clerk, secretary, or similar officer of the public body making the improvement.

Source: SL 1929, ch 213; SDC 1939, § 39.0906; SL 1972, ch 33, § 2.

5-22-11. Claims and liens against contractor and public body barred by failure to file--Rights against subcontractor preserved.

All claims for any items under the provisions of this chapter furnished by any subcontractor or by any person to any subcontractor for making said improvement which are not filed in accordance with the provisions of said notice within one hundred twenty days from the first publication thereof shall be barred as a lien or claim against the public body and contractor, and no action on any claim so barred shall be maintained nor any right of setoff or counterclaim thereon enforced in any court in this state against the public body or the contractor nor against the surety or bonding company for either, but nothing in this statute shall in any manner bar the right of any person who has furnished any lienable items to any subcontractor to collect for the same from the said subcontractor.

Source: SL 1929, ch 213; SDC 1939, § 39.0906.

5-22-12. Right of action not lost by loss of lien.

Nothing in the statutes relating to such liens on public funds unless limited as hereinbefore provided shall impair or affect the right of any person to whom any sum may be due for work, skill, services, materials, power, machinery, or supplies furnished to any contractor for any of the work hereinbefore mentioned, to maintain an action against the person liable therefor.

Source: SL 1895, ch 133, § 7; RCCivP 1903, § 719; RC 1919, § 1666; SDC 1939, § 39.0907.