21-18-23. Partial release of garnished funds on application by defendant.

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

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

21-18-24. Subsequent proceedings against additional or discharged garnishees--Summons and trial in other counties.

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

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

21-18-25. Actions by principal defendant against garnishee prohibited during garnishment--Stay of pending proceedings.

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

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

21-18-26. Garnishee's affidavit denying liability--Form.

Within thirty days from the service of such garnishee summons the garnishee may, if the truth warrants, file with the clerk of the court in which the action is pending, and serve a copy thereof upon the plaintiff, his affidavit in substantially the following form:

State of South Dakota,

County of __________ ss.    ________ Court

A. B., Plaintiff,    vs.

C. D., Defendant,

E. F., Garnishee.

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

    ___________________________

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

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

21-18-27. Garnishee's garnishment disclosure liability--Time of filing--Contents.

Unless the garnishee makes the affidavit provided for in § 21-18-26, he shall within thirty days from the service of the garnishee summons file and serve in like manner a garnishment disclosure in which he shall state:

(1)    Whether he was at the time of service of the garnishee summons indebted or under any liability to the defendant named in the garnishee summons, in any manner, upon any account, specifying, if indebted or liable, the amount, the interest thereon, the manner in which evidenced, when payable, whether an absolute or contingent liability, and all the facts and circumstances necessary to a complete understanding of such indebtedness or liability. If the garnishee is in doubt respecting any such liability or indebtedness, he may set forth all the facts and circumstances concerning the liability or indebtedness and submit the question to the court;

(2)    Whether he held at the time aforesaid the title or possession of any real estate, or any interest in land of any description, or of any personal property, effects, or credits, or any instruments or papers relating to such, belonging to the defendant or in which he was in any way interested. If he admits any such or is in any doubt respecting the same, he shall set forth the description of such property and all the facts and circumstances concerning the same, and the title, interest, or claim of the defendant in or to the same.

If the garnishee claims any setoff or defense to any indebtedness or liability or any lien on or claim to the property, he shall set forth the facts and circumstances thereof fully.

The garnishee may state any claim of exemption from execution on the part of the defendant, or other objection known to him against the right of plaintiff to apply upon his demands the indebtedness or property disclosed.

If the garnishee discloses any indebtedness, or the possession of any property to which the defendant, and any other person as well, has a claim, he shall provide the names and residences of such claimants and so far as known the nature of their claims.

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

21-18-27.1. Service of garnishment disclosure form on garnishee--Contents of form.

A garnishment disclosure form shall be served upon the garnishee. The disclosure shall be substantially in the following form:

State of South Dakota    )             In _______________ Court

)    ss.        

County of __________    )            __________

__________        

Plaintiff                

vs.                

__________        

Defendant                

and            Garnishment Disclosure    

__________        

Garnishee                

I am the ______________ of the garnishee and duly authorized to disclose for the garnishee.

On the ______ day of ______________, 20____, the time of service of garnishee summons on the garnishee, there was due and owing the defendant from the garnishee the following:

1.    Earnings. For the purposes of garnishment, "earnings" means compensation payable for personal service whether called wages, salary, commission, bonus or otherwise, and includes periodic payments. "Earnings" does not include social security benefits or veterans' disability pension benefits, except when the benefits are subject to garnishment to enforce any order for the support of a dependent child. "Earnings" includes military retirement pay. "Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of amounts required by law to be withheld (such as FICA, Medicare, and income tax withholding). If the garnishee summons was served upon you at a time when earnings from a prior completed pay period were owing but not paid, complete the following disclosure for earnings from both the past pay period and the current pay period.

a.    Enter on the line below the amount of disposable earnings earned or to be earned by the defendant within the defendant's pay periods which may be subject to garnishment.

___________________________________________________

b.    Enter on the line below forty times the hourly federal minimum wage (or state minimum wage, if greater) times the number of workweeks within the defendant's pay periods which may be subject to garnishment plus twenty-five dollars per week for each dependent family member residing with the garnishment debtor other than the garnishment debtor himself or herself. When pay periods consist of other than a whole number of workweeks, each day of a pay period in excess of the number of completed workweeks shall be counted as a fraction of a workweek equal to the number of workdays divided by the number of workdays in the normal workweek.

___________________________________________________

c.    Enter on the line below the difference obtained (never less than zero) when line b is subtracted from line a.

___________________________________________________

d.    Enter on the line below twenty percent (1/5) of line a.

___________________________________________________

e.    Enter on the line below the lesser of line c and line d.

___________________________________________________

2.    Money. Enter on the line below any amounts due and owing defendant, except earnings, from the garnishee.

___________________________________________________

3.    Property. Describe on the line below any personal property, instruments or papers belonging to the defendant and in the possession of the garnishee.

___________________________________________________

4.    Setoff. Enter on the line below the amount of any setoff, defense, lien or claim which the garnishee claims against the amount set forth on lines 1(e), 2 and 3. Allege the facts by which the setoff, defense, lien or claim is claimed. (Any indebtedness to a garnishee-employer incurred by the judgment debtor within ten days prior to the receipt of the first garnishment on a debt is void and should be disregarded.)

___________________________________________________

5.    Adverse Interest. Enter on the line below any amounts claimed by other persons by reason of ownership or interest in the defendant's property (such as child support, federal wage garnishments, and other creditor garnishments). State the names and addresses of the persons and the nature of their claim, if known. (Any assignment of wages made by the defendant within ten days prior to the receipt of the first garnishment on a debt is void and should be disregarded.)

___________________________________________________

6.    Enter on the line below the total of lines 4 and 5.

___________________________________________________

7.    Enter on the line below the difference obtained (never less than zero) when line 6 is subtracted from the sum of line 1(e), 2 and 3.

___________________________________________________

8.    Enter on the line below one hundred five percent of the amount set forth in the Affidavit of Garnishment.

___________________________________________________

9.    Enter on the line below the lesser of line 7 and line 8. As garnishee, you are hereby instructed to retain this amount only if it is $25.00 or more. The balance shall be remitted to the debtor in a timely manner.

__________________________________

Signature ______________________________________________________

Authorized Representative of Garnishee

______________________________________________________

Title

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

________________________

Notary Public

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

21-18-28. Disclosure of liability when state is garnishee.

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

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

21-18-29. Disclosure by garnishee not made on information and belief--State excepted.

No answer or disclosure in garnishment except by the State of South Dakota shall be made upon information and belief. The answer or disclosure of the garnishee may be made by an agent or attorney having knowledge of the facts.

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

21-18-30. Garnishee's answer conclusive unless issue taken--Trial of issues.

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

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

21-18-31. Motion for order on answer of garnishee and defendant--Affidavit.

The plaintiff may in all cases move the court upon the answer of the garnishee and of the defendant, if the defendant shall also answer, for such order as the plaintiff is entitled to thereon. Such order is not a bar beyond the facts stated in such answers. The plaintiff shall attach an affidavit to the motion setting forth:

(1)    Amount that is owed on judgment and accrued interest;

(2)    Additional costs claimed;

(3)    Credit for any payments made;

(4)    Net balance due;

(5)    Specific request for payment of the garnished amount sufficient to satisfy judgment; and

(6)    Any surplus shall be returned to defendant.

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

21-18-32. Payment to officer or clerk by garnishee--Discharge.

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

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

21-18-33. Retention of property disclosed by garnishee until expiration of garnishment, levy, release, or court order--Return of property to defendant.

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

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

21-18-34. Payment to clerk by state as garnishee--Exoneration of state.

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

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

21-18-35. Order to interplead adverse claimant disclosed by garnishee--Payment by garnishee and discharge--Service of notice on claimant.

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

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

21-18-36. Answer or defense by adverse claimant--Judgment on default.

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

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

21-18-37. Answer by other parties to affirmative claim set up by adverse claimant.

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

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

21-18-38. Default judgment for adverse claimant--Trial of issues on adverse claim.

If no answer is made pursuant to § 21-18-37, the claimant shall be entitled to default judgment as in ordinary cases of failure to answer.

If issue be raised upon such claim, the court shall determine the order of trial and procedure at the commencement of the trial or upon motion of any party prior thereto.

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

21-18-39. Judgment against garnishee on failure to answer.

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

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

21-18-40. Judgment not entered against state as garnishee--Summons of state operating as assignment.

No judgment shall be entered against the State of South Dakota, nor shall any actual liability be incurred by the state in any garnishment proceeding. Any judgment entered against the principal defendant when the state is garnishee shall be paid only out of moneys due such principal defendant at the time of the service of the summons in garnishment and service of such summons on the state shall be of the same force and effect only as an assignment of the sum claimed or as much thereof as may be due the defendant from the state.

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

21-18-41. Order for payment by state as garnishee after judgment against principal defendant--Service and payment by state auditor.

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

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

21-18-42. Defense of garnishment proceedings by principal defendant--Grounds.

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

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

21-18-43. Defense of action by garnishee.

The garnishee may defend the defendant if the latter does not, but is under no obligation so to do.

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

21-18-44. Garnishment proceedings deemed civil action--Procedural rules applicable.

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

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