TITLE 15
CIVIL PROCEDURE
Chapter
01 Definitions And General Provisions
02 Limitation Of Actions Generally
02A Limitation Of Actions For Construction Deficiencies
03 Adverse Possession And Limitation Of Actions To Recover Real Estate
04 Abatement And Survival Of Actions
05 Venue Of Actions
05A Interactive Audiovisual Device Use In Court Proceedings
06 Rules Of Procedure In Circuit Courts
07 Jurisdiction Of Persons
08 Remedies On Joint Liability
09 Commencement Of Actions And Service Of Process
10 Lis Pendens Notice
11 Circuit Court Calendar And Continuances
12 Change Of Circuit Judge Or Magistrate
13 Reference Of Cases
14 Conduct Of Jury Trials
15 Record And Exhibits
15A Unified Judicial System Court Records Rule
16 Judgments
16A Enforcement Of Foreign Judgments
17 Recovery Of Disbursements
18 Execution Of Judgments
19 Execution Sales
20 Proceedings Supplementary To Execution
21 Amercement Of Officers
22 Arrest And Bail In Civil Cases Repealed
23 Discharge From Imprisonment On Civil Process Repealed
24 Supreme Court Procedure In General
24A Certification Of Questions Of Law To Supreme Court
25 Original Proceedings In Supreme Court
26 Procedure For Taking Appeal To Supreme Court Repealed And Div Transferred
26A Rules Of Civil Appellate Procedure
26B Appellate Settlement Conferences Repealed
26C Supreme Court Electronic Filing Rules
27 Stay Of Execution On Appeal To Supreme Court Repealed
28 Undertakings And Deposits On Appeal To Supreme Court Repealed
29 Record And Briefs On Appeal To Supreme Court Repealed And Div Transferred
30 Disposition Of Appeals To Supreme Court
31 County Court Procedure Repealed
32 Municipal Court Procedure Repealed
33 General Powers And Process Of Justices Courts Repealed
34 Attachment And Garnishment In Justices Courts Repealed
35 Pleadings And Trial In Justices Courts Repealed
36 Judgments And Execution In Justices Courts Repealed
37 Records Dockets And Accounting By Justices Repealed
38 Appeals From Magistrate Court
39 Small Claims Procedure
15-1-1
Definition of terms.
15-1-2
Civil and criminal remedies not merged.
15-1-3
Time during which action is pending.
15-1-4
Procedure for acquiring signature of judge when no judge available.
15-1-1. Definition of terms.
The following words have in this title the significance attached to them in this section unless otherwise apparent from the context:
(1) An action is an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement, determination, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense. Every other remedy is a special proceeding;
(2) The word "writ" signifies an order or precept in writing, issued in the name of the state or of a court or judicial officer; and the word "process" a writ or summons issued in the course of judicial proceedings. All process in civil actions shall run in the name of the State of South Dakota;
(3) The word "state," when applied to the different parts of the United States, includes the District of Columbia and the territories; and the words "United States" may include the district and territories and other possessions of the United States.
Source: SDC 1939 & Supp 1960, § 33.0102; SL 1984, ch 12, § 33.
15-1-2. Civil and criminal remedies not merged.
Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other.
Source: SDC 1939 & Supp 1960, § 33.0103.
15-1-3. Time during which action is pending.
An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment be sooner satisfied.
Source: SDC 1939 & Supp 1960, § 33.0104.
15-1-4. Procedure for acquiring signature of judge when no judge available.
When an attorney or litigant is in immediate need of a judicial signature and no appropriate circuit judge or magistrate judge is present or available, such signature may be acquired in the following manner: (1) the attorney or litigant may telephonically contact a circuit judge or magistrate judge who has jurisdiction and relate to such judge the verbatim contents of the document requiring signature. If the judge approves the document, the judge shall telephonically contact the clerk of courts and authorize that official to sign the document on his behalf; or (2) the attorney or litigant may contact the clerk of courts who shall then attempt to contact an authorizing judge and read the proposed document verbatim to ascertain whether such judge will authorize the clerk to sign for him. The document shall clearly show the signing of the signature by the authorized official. Although a signature acquired by this procedure shall have the same force and effect as if the judge had signed personally, a copy shall be forwarded to the authorizing judge for co-signing. The co-signed document shall be filed with the clerk of courts. The authorizing judge shall also endorse on the co-signed copy the reasons for authorizing the foregoing procedure.
Source: Supreme Court Rule 90-11.
CHAPTER 15-2
LIMITATION OF ACTIONS GENERALLY
15-2-1 Commencement of civil actions limited by prescribed periods--Manner of objecting to commencement.
15-2-2 Application of limitations to actions by or for state--Exceptions.
15-2-3 Cause of action based on fraud accruing on discovery or notice.
15-2-4 Accrual of cause of action on open account.
15-2-5 Accrual of cause of action for mortgage foreclosure.
15-2-5.1 Limitation of action to challenge validity on nonjudicial foreclosure of real property mortgage.
15-2-6 Actions on state judgments and sealed instruments.
15-2-7 Actions to foreclose real estate mortgages.
15-2-8 Judgment of federal or foreign court--Mentally ill person's support--Abstracter's bond--Relief not otherwise provided for.
15-2-9 15-2-9 to 15-2-12. Repealed by SL 1985, ch 156, § 10
15-2-12.1 15-2-12.1. Repealed by SL 1985, ch 157, § 2
15-2-12.2 Product liability actions--Prospective application.
15-2-13 Contract obligation or liability--Statutory liability--Trespass--Personal property--Injury to noncontract rights--Fraud--Setting aside corporate instrument.
15-2-14 Action against sheriff, coroner, or constable--Action for statutory penalty or forfeiture--Action for personal injury.
15-2-14.1 Time for bringing medical malpractice actions--Counterclaims--Prospective application.
15-2-14.2 Time for bringing legal malpractice actions--Prospective application.
15-2-14.3 Time for bringing action against professional corporation--Corporate character and status unaffected.
15-2-14.4 Time for bringing action against licensed public accountant.
15-2-14.5 Time for bringing action against veterinarian--Counterclaims.
15-2-14.6 Time for bringing action against real estate licensees, agents, and employees--Prospective application.
15-2-14.7 Time for bringing action against firm of real estate broker, agent, or employee--Prospective application.
15-2-14.8 Time for bringing action against certain professional corporations and professional practitioners for acts or omissions occurring prior to January 1, 1980.
15-2-15 Actions for libel, slander, assault, battery, or false imprisonment--Actions for statutory forfeitures or penalties--Actions concerning wages.
15-2-15.1 15-2-15.1. Repealed by SL 1976, ch 145, § 4
15-2-15.2 Time for bringing action under federal civil rights statutes.
15-2-16 Limitation of actions for recovery of municipal funds unlawfully expended.
15-2-17 Actions for escape of prisoner arrested on civil process--Statutory forfeiture or penalty--Petty offense.
15-2-18 Actions on instruments circulated as money not limited by provisions.
15-2-19 Actions against bank directors, shareholders, agents, or employees.
15-2-20 Tolling of statute during absence of defendant from state--Real estate mortgage foreclosure actions excepted.
15-2-21 Running of statute against enemy alien during war.
15-2-22 Tolling of statute during disability--Maximum period of extension--Actions excepted.
15-2-22.1 15-2-22.1. Repealed by SL 2008, ch 103, § 1.
15-2-23 Disability to have existed when right of action accrued.
15-2-24 Coexisting disabilities.
15-2-25 Tolling of statute during injunction or statutory prohibition.
15-2-26 15-2-26, 15-2-27. Repealed by SL 1995, ch 167, §§ 93, 94
15-2-28 Mortgage presumed paid after fifteen years--Tolling provisions not applicable.
15-2-29 Writing required for acknowledgment or promise to take case out of operation of chapter.
15-2-30 Commencement of action by service of summons--Summons on codefendant.
15-2-31 Attempted commencement of action by delivery of summons to sheriff--Publication or service following attempt.
15-2-32 New action after reversal of judgment on appeal.
15-2-33 Dismissal without prejudice subject to plaintiff's right to satisfy earlier judgment involving same parties.
15-2-34 Action for recovery of damages against regional airport authority--Commencement.
15-2-35 Action against real estate appraiser or employee for malpractice, error, mistake, or omission.
15-2-36 Actions for breach of trust against qualified persons.
15-2-1. Commencement of civil actions limited by prescribed periods--Manner of objecting to commencement.
Civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued except where in special cases a different limitation is prescribed by statute. The objection that the action was not commenced within the time limited can only be taken by answer or other responsive pleading.
Source: SDC 1939 & Supp 1960, § 33.0201.
15-2-2. Application of limitations to actions by or for state--Exceptions.
The limitations prescribed in this chapter and chapter 15-3 shall apply to actions brought in the name of the state, or for its benefit, in the same manner as to actions by private parties, unless otherwise specifically prescribed by law. However, no statute of limitation or repose may apply against the state or other governmental entity seeking to recover damages from any person who has failed to warn the state or other governmental entity of known defects in any product provided by him to the state or other governmental entity or to a contractor on behalf of the state or other governmental entity.
Source: SDC 1939 & Supp 1960, § 33.0237; SL 1988, ch 174, § 1.
15-2-3. Cause of action based on fraud accruing on discovery or notice.
In an action for relief on the ground of fraud the cause of action shall not be deemed to have accrued until the aggrieved party discovers, or has actual or constructive notice of, the facts constituting the fraud.
Source: SDC 1939 & Supp 1960, § 33.0235; SL 1961, ch 178.
15-2-4. Accrual of cause of action on open account.
In an action brought to recover a balance due upon a mutual, open, and current account where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side.
Source: SDC 1939 & Supp 1960, § 33.0236.
15-2-5. Accrual of cause of action for mortgage foreclosure.
For the purposes of this chapter a cause of action for the foreclosure of a mortgage shall be deemed to have accrued at the last date of the maturity of the debt or other obligation secured thereby, as stated in, or as ascertainable from the record of such mortgage or in an extension thereof duly executed and recorded, and if no date for any maturity be stated therein or be ascertainable therefrom then after fifteen years from the date of said mortgage.
Source: SDC 1939 & Supp 1960, § 33.0233.
15-2-5.1. Limitation of action to challenge validity on nonjudicial foreclosure of real property mortgage.
An action to challenge the validity of proceedings for the nonjudicial foreclosure of a mortgage on real property, or an action to challenge the validity of a title derived from such proceedings, may be commenced only within one year from the date the sheriff's certificate of sale was recorded in the office of the register of deeds of the county or counties where the affected real property is situated.
Source: SL 1982, ch 166.
15-2-6. Actions on state judgments and sealed instruments.
Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within twenty years after the cause of action shall have accrued:
(1) An action upon a judgment or decree of any court of this state;
(2) An action upon a sealed instrument, except a real estate mortgage.
Source: SDC 1939, § 33.0232 (1); SL 1945, ch 144; SL 1949, ch 128, § 1.
15-2-7. Actions to foreclose real estate mortgages.
Except where, in special cases, a different limitation is prescribed by statute, a civil action for the foreclosure of any real estate mortgage by action or by advertisement can be commenced only within fifteen years after the cause of action shall have accrued, and said period of fifteen years shall not be extended by nonresidence, legal disability, partial payment, or any new promise; provided, however, that the term "new promise" shall not be deemed to embrace an extension of a mortgage duly executed and recorded as contemplated by § 15-2-5. This section shall apply to all real estate mortgages, both those heretofore executed and those hereafter executed.
Source: SDC 1939, § 33.0232 (2); SL 1945, ch 144; SL 1961, ch 177, §§ 1, 3; SL 1965, ch 160.
15-2-8. Judgment of federal or foreign court--Mentally ill person's support--Abstracter's bond--Relief not otherwise provided for.
Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within ten years after the cause of action shall have accrued:
(1) An action upon a judgment or decree of any court of the United States, or any state or territory other than this state within the United States;
(2) Actions by any county in this state to recover from any person legally bound for the support of a mentally ill person at the hospital for the mentally ill;
(3) An action upon an abstracter's bond given pursuant to the provisions and requirements of chapter 36-13. Cause of action on bond shall be deemed to accrue on date of certificate in which error, deficiency, or mistake occurred;
(4) An action for relief not otherwise provided for.
Source: SDC 1939, § 33.0232 (3); SL 1945, ch 144; SL 1947, ch 153, § 1.
15-2-12.2. Product liability actions--Prospective application.
An action against a manufacturer, lessor, or seller of a product, regardless of the substantive legal theory upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, inspection, preparation, assembly, testing, packaging, labeling, or sale of any product or failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product may be commenced only within three years of the date when the personal injury, death, or property damage occurred, became known or should have become known to the injured party.
This section is prospective in application.
Source: SL 1985, ch 157, § 1.
15-2-13. Contract obligation or liability--Statutory liability--Trespass--Personal property--Injury to noncontract rights--Fraud--Setting aside corporate instrument.
Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within six years after the cause of action shall have accrued:
(1) An action upon a contract, obligation, or liability, express or implied, excepting those mentioned in §§ 15-2-6 to 15-2-8, inclusive, and subdivisions 15-2-15(3) and (4);
(2) An action upon a liability created by statute other than a penalty or forfeiture; excepting those mentioned in subdivisions 15-2-15(3) and (4);
(3) An action for trespass upon real property;
(4) An action for taking, detaining, or injuring any goods or chattels, including actions for specific recovery of personal property;
(5) An action for criminal conversation or for any other injury to the rights of another not arising on contract and not otherwise specifically enumerated in §§ 15-2-6 to 15-2-17, inclusive;
(6) An action for relief on the ground of fraud, in cases which heretofore were solely cognizable by the court of chancery;
(7) An action to set aside any instrument executed in the name of a corporation on the ground that the corporate charter had expired at the time of the execution of such instrument.
Source: SDC 1939, § 33.0232 (4); SL 1941, ch 151; SL 1945, ch 144; SL 1945, ch 145, § 1; SL 1947, ch 153, § 2; SL 1953, ch 198, § 1.
15-2-14. Action against sheriff, coroner, or constable--Action for statutory penalty or forfeiture--Action for personal injury.
Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within three years after the cause of action shall have accrued:
(1) An action against a sheriff, coroner, or constable upon a liability incurred by the doing of an act in his official capacity and in virtue of his office, or by the omission of an official duty, including the nonpayment of money collected upon an execution. But this subdivision shall not apply to an action for an escape;
(2) An action upon a statute for a penalty or forfeiture where the action is given to the party aggrieved, or to such party and the state except where the statute imposing it prescribes a different limitation;
(3) An action for personal injury.
Source: SDC 1939, § 33.0232 (5); SL 1945, ch 144.
15-2-14.1. Time for bringing medical malpractice actions--Counterclaims--Prospective application.
An action against a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts for malpractice, error, mistake, or failure to cure, whether based upon contract or tort, can be commenced only within two years after the alleged malpractice, error, mistake, or failure to cure shall have occurred, provided, a counterclaim may be pleaded as a defense to any action for services brought by a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts after the limitation herein prescribed, notwithstanding it is barred by the provisions of this chapter, if it was the property of the party pleading it at the time it became barred and was not barred at the time the claim was sued or originated, but no judgment thereon except for costs can be rendered in favor of the party so pleading it.
This section shall be prospective in application only.
Source: SDC 1939, § 33.0232 (6); SL 1945, ch 144; SL 1947, ch 153, § 3; SL 1963, ch 224; SDCL, § 15-2-15 (3); SL 1976, ch 145, §§ 1, 2; SL 1977, ch 168.
15-2-14.2. Time for bringing legal malpractice actions--Prospective application.
An action against a licensed attorney, his agent or employee, for malpractice, error, mistake, or omission, whether based upon contract or tort, can be commenced only within three years after the alleged malpractice, error, mistake, or omission shall have occurred. This section shall be prospective in application.
Source: SL 1977, ch 170.
15-2-14.3. Time for bringing action against professional corporation--Corporate character and status unaffected.
Any action against any professional corporation or professional limited liability company organized under chapter 47-11, 47-11A, 47-11B, 47-11C, 47-12, 47-13, 47-13A, or 47-13B can only be brought within the time and in the manner prescribed by the statute of limitations applicable to such action if it were commenced against a stockholder of such corporation as an individual. This section does not affect the corporate character and status of any professional corporation now or hereafter organized under the chapters herein mentioned, but that, as to such professional corporations, the limitation of actions applicable to the corporation are the same as that applicable to the individual professionals who are stockholders of the corporation.
Source: SL 1979, ch 146; SL 1994, ch 351, § 31.
15-2-14.4. Time for bringing action against licensed public accountant.
Any action against a licensed public accountant or the accountant's agent or employee, for malpractice, error, mistake, or omission, whether based on contract or tort, may be commenced only within three years after the alleged malpractice, error, mistake or omission has occurred unless the Department of Revenue or Internal Revenue Service conducts an audit, or issues a notice of intent to conduct an audit, in which case the action shall be commenced within four years. This section is prospective in application.
Source: SL 1987, ch 153; SL 1996, ch 141; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
15-2-14.5. Time for bringing action against veterinarian--Counterclaims.
An action against a veterinarian or any member of a veterinarian's staff for malpractice, error, mistake, or failure to cure, whether based upon contract or tort, may be commenced only within three years after the alleged malpractice, error, mistake, or failure to cure has occurred. However, the provisions of this section do not prohibit any counterclaim for malpractice, error, mistake, or failure to cure, as a defense to any action for services brought by a veterinarian.
Source: SL 2001, ch 100, § 1.
15-2-14.6. Time for bringing action against real estate licensees, agents, and employees--Prospective application.
No action may be brought against a licensed real estate broker, broker associate, or salesperson, or any agent or employee thereof, for malpractice, error, mistake, or omission, whether based upon contract or tort, unless it is commenced within three years of the occurrence of the alleged malpractice, error, mistake, or omission. This section is prospective in application.
Source: SL 2004, ch 140, § 1.
15-2-14.7. Time for bringing action against firm of real estate broker, agent, or employee--Prospective application.
No action may be brought against a licensed partnership, association, limited liability company, or corporation of a real estate broker, or any agent or employee thereof, for malpractice, error, mistake, or omission, whether based upon contract or tort, unless it is commenced within three years of the occurrence of the alleged malpractice, error, mistake, or omission. This section is prospective in application.
Source: SL 2004, ch 140, § 2.
15-2-14.8. Time for bringing action against certain professional corporations and professional practitioners for acts or omissions occurring prior to January 1, 1980.
No action may be brought after July 1, 2006, against any professional corporation formed pursuant to chapter 47-11, 47-11A, 47-11B, 47-11C, 47-11D, 47-11E, 47-12, 47-13, 47-13A, or 47-13B, or any shareholder of such corporation, or against any person individually engaged as one of the following professionals: physicians, chiropractors, optometrists, podiatrists, physician assistants, nurses, dentists, veterinarians, lawyers, and public accountants, for any act or omission that occurred prior to January 1, 1980.
Source: SL 2005, ch 116, § 1.
15-2-15. Actions for libel, slander, assault, battery, or false imprisonment--Actions for statutory forfeitures or penalties--Actions concerning wages.
Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within two years after the cause of action shall have accrued:
(1) An action for libel, slander, assault, battery, or false imprisonment;
(2) An action upon a statute for a forfeiture or penalty to the state;
(3) An action for wages regulated by either state or federal statute or for a penalty or liquidated damages for failure to pay wages regulated by either such state or federal statute;
(4) An action for wages or for a liability or penalty for failure to pay wages in accordance with the provisions of any contract or statute.
Source: SDC 1939, § 33.0232 (6); SL 1945, ch 144; SL 1947, ch 153, § 3; SL 1963, ch 224; SL 1976, ch 145, § 4.
15-2-15.2. Time for bringing action under federal civil rights statutes.
Any action brought under the federal civil rights statutes may be commenced only within three years after the alleged constitutional deprivation has occurred. This section is prospective in application.
Source: SL 1983, ch 155, § 1; SL 1986, ch 158.
15-2-16. Limitation of actions for recovery of municipal funds unlawfully expended.
Any action to recover into the treasury of any municipality within this state funds illegally expended by any governing body or public official thereof, must, notwithstanding any other law or statute of limitation, be commenced within two years from the date of publication of the minutes recording the approval of the voucher in payment thereof or within such period of time after actual payment is made therefor, whichever of the two events occurs the later; but, this limitation for commencement of civil action shall not apply where there is fraud or deceit on the part of such governing body or official.
Source: SL 1957, ch 259; SDC Supp 1960, § 33.0238.
15-2-17. Actions for escape of prisoner arrested on civil process--Statutory forfeiture or penalty--Petty offense.
Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within one year after the cause of action shall have accrued:
(1) An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process;
(2) An action upon a statute for a penalty or a forfeiture given in whole or in part to any person who will prosecute the same; but if such action be not commenced within such year by a private person, it may be commenced within two years thereafter in behalf of the state by the state's attorney where the offense was committed;
(3) An action against a person for the violation of a statute, which violation is a petty offense.
Source: SDC 1939, § 33.0232 (7); SL 1945, ch 144; SL 1945, ch 145, § 2; SL 1947, ch 153, § 4; SL 1978, ch 165, § 1.
15-2-18. Actions on instruments circulated as money not limited by provisions.
This chapter does not affect actions to enforce the payment of bills, notes, or other evidence of debt issued by moneyed corporations, or issued or put in circulation as money.
Source: SDC 1939 & Supp 1960, § 33.0211.
15-2-19. Actions against bank directors, shareholders, agents, or employees.
No action may be brought against a director, shareholder, or an agent or employee of a bank or bank holding company, for any error, mistake, or omission, whether based on contract or tort, unless it is commenced within three years of the occurrence of the alleged error, mistake, or omission. For purposes of this section the term, bank, or, bank holding company, includes state banks as defined in Title 51A, national banks organized pursuant to 12 U.S.C. § 21 as amended as of January 1, 2008, and federal savings associations organized pursuant to 12 U. S.C. § 1464 as amended as of January 1, 2008.
Source: SDC 1939 & Supp 1960, § 33.0212; SL 2008, ch 252, § 45.
15-2-20. Tolling of statute during absence of defendant from state--Real estate mortgage foreclosure actions excepted.
If when the cause of action shall accrue against any person he shall be out of the state, such action may be commenced within the terms herein respectively limited after the return of such person into this state; and if after such cause of action shall have accrued, such person shall depart from and reside out of the state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action; provided that the provisions of this section shall not apply to an action for the foreclosure of any real estate mortgage, or to the foreclosure of any real estate mortgage by advertisement.
Source: SDC 1939, § 33.0203; SL 1949, ch 127, § 1.
15-2-21. Running of statute against enemy alien during war.
When a person shall be an alien subject, or a citizen of a country at war with the United States, the time of the continuance of the war is part of the period limited for the commencement of the action.
Source: SDC 1939 & Supp 1960, § 33.0206.
15-2-22. Tolling of statute during disability--Maximum period of extension--Actions excepted.
If a person entitled to bring an action other than for the recovery of real property, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, was at the time the cause of action accrued, either:
(1) Within the age of minority as defined in chapter 26-1; or
(2) Mentally ill;
the time of the person's disability is not a part of the time limited for the commencement of the action.
The period within which the action shall be brought cannot be extended more than five years by any disability except infancy, nor can it be extended in any case longer than one year after the disability ceases.
The provisions of this section do not apply to actions for the foreclosure of any real estate mortgage, either by action or by advertisement.
Source: SDC 1939 & Supp 1960, § 33.0204; SL 1976, ch 145, § 3; SL 1983, ch 155, § 2; SL 1988, ch 175.
15-2-23. Disability to have existed when right of action accrued.
No person can avail himself of a disability unless it existed when his right of action accrued.
Source: SDC 1939 & Supp 1960, § 33.0209.
15-2-24. Coexisting disabilities.
When two or more disabilities coexist at the time the right of action accrues, the limitation does not attach until they are all removed.
Source: SDC 1939 & Supp 1960, § 33.0210.
15-2-25. Tolling of statute during injunction or statutory prohibition.
When the commencement of an action is stayed by injunction or statutory prohibition, the time of the continuance of the injunction or prohibition is not part of the time limited for the commencement of the action.
Source: SDC 1939 & Supp 1960, § 33.0208.
15-2-28. Mortgage presumed paid after fifteen years--Tolling provisions not applicable.
At the expiration of fifteen years from the date the cause of action accrues on any mortgage as provided in § 15-2-5, such mortgage shall be conclusively presumed to have been paid and the mortgage and the record thereof shall cease to be notice of the mortgage as unpaid and the lien thereof shall then cease absolutely, and said period of fifteen years shall not be extended by nonresidence, legal disability, or partial payment.
Source: SDC 1939, § 33.0234; SL 1949, ch 129, § 1.
15-2-29. Writing required for acknowledgment or promise to take case out of operation of chapter.
No acknowledgment or promise is sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this chapter, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.
Source: SDC 1939 & Supp 1960, § 33.0213.
15-2-30. Commencement of action by service of summons--Summons on codefendant.
An action is commenced as to each defendant when the summons is served on him, or on a codefendant who is a joint contractor or otherwise united in interest with him.
Source: SDC 1939 & Supp 1960, § 33.0202.
15-2-31. Attempted commencement of action by delivery of summons to sheriff--Publication or service following attempt.
An attempt to commence an action is deemed equivalent to the commencement thereof when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county in which the defendants or one of them, usually or last resided; or if a corporation be defendant, to the sheriff or other officer of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. Such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days.
Source: SDC 1939 & Supp 1960, § 33.0202.
15-2-32. New action after reversal of judgment on appeal.
If an action be commenced within the time prescribed therefor and a judgment therein be reversed on appeal, the plaintiff or, if he die and the cause of action survive, his heirs or representatives, may commence a new action within one year after the reversal.
Source: SDC 1939 & Supp 1960, § 33.0207.
15-2-33. Dismissal without prejudice subject to plaintiff's right to satisfy earlier judgment involving same parties.
If a plaintiff in a civil action has not satisfied a judgment for expenses, attorney's fees, or both, entered in a prior civil case involving substantially the same parties brought in the circuit where the present action is pending, and the court, in support of the judgment, made a finding, pursuant to § 15-17-51, that the proceeding was frivolous or brought for a malicious purpose, the plaintiff may be dismissed from the action without prejudice, subject to the right of the plaintiff to recommence the action upon filing of a satisfaction of the judgment.
Source: SL 1995, ch 113.
15-2-34. Action for recovery of damages against regional airport authority--Commencement.
Any action to recover damages for personal injury or death caused by the negligence of a regional airport authority, created pursuant to § 50-6A-2, may only be commenced within two years of the alleged negligence.
This section is prospective in application.
Source: SL 1998, ch 277, § 1.
15-2-35. Action against real estate appraiser or employee for malpractice, error, mistake, or omission.
No action may be brought against a licensed real estate appraiser, or any agent or employee thereof, for malpractice, error, mistake, or omission, whether based upon contract or tort, unless it is commenced within three years of the occurrence of the alleged malpractice, error, mistake, or omission. The term, real estate appraiser, includes any real estate appraiser who is certified, licensed, or registered pursuant to chapter 36-21B. This section is prospective in application.
Source: SL 2007, ch 130, § 1.
15-2-36. Actions for breach of trust against qualified persons.
If § 21-22-30 or 55-3-45 do not apply, absent fraud, intentional misrepresentation, or material omission, an action to recover for breach of trust against a qualified person as defined in § 55-3-41 or an officer, director, or employee of a qualified person may be commenced only within two years of a trustee's accounting for the period of the breach pursuant to chapter 55-3. In the case of fraud, intentional misrepresentation, or material omission, the limitation period does not commence to run until discovery of the breach of trust.
Source: SL 2007, ch 247, § 5; SL 2010, ch 232, § 27.
15-2A-1
Legislative findings--Ten-year limitation--Exceptions.
15-2A-2
Legislative intent.
15-2A-3
Time for bringing action--Date of substantial completion.
15-2A-4
Persons in control of improvement may not assert limitation.
15-2A-5
Injuries occurring in tenth year.
15-2A-6
Periods otherwise prescribed not extended--Cause of action not created.
15-2A-7
Persons guilty of fraud or willful misconduct may not assert limitation.
15-2A-8
Express warranty or guaranty.
15-2A-9
Tolling provisions.
15-2A-10
Prospective application.
15-2A-1. Legislative findings--Ten-year limitation--Exceptions.
The Legislature finds that subsequent to the completion of construction, persons involved in the planning, design, and construction of improvements to real estate lack control over the determination of the need for, the undertaking of and the responsibility for maintenance, and lack control over other forces, uses and intervening causes which cause stress, strain, wear, and tear to the improvements and, in most cases, have no right or opportunity to be made aware of or to evaluate the effect of these forces on a particular improvement or to take action to overcome the effect of these forces. Therefore, it is in the public interest to set a point in time following the substantial completion of the project after which no action may be brought for errors and omissions in the planning, design, and construction of improvements to real estate, whether these errors and omissions have resulted or may result in injury or not, unless the person involved in the planning, design, and construction of the improvements was guilty of fraud, fraudulent concealment, fraudulent misrepresentation, willful or wanton misconduct, or unless the person involved in the planning, design, and construction of improvements to real estate expressly warranted or guaranteed the improvement for a longer time period. This legislation is determined to be in the public interest and in the interest of equating the rights of due process between the prospective litigants in the areas of planning, design, and construction of improvements to real property in an equitable manner, while adjusting the standard of care so that persons attempting to bring actions under a general standard of care against persons involved in the planning, design, and construction of improvements to real estate only have ten years to bring actions following substantial completion against those involved in the planning, design, and construction, and following that ten-year time period actions may be brought against such persons only if they are guilty of fraud, fraudulent concealment, fraudulent misrepresentation, breach of express warranties or guarantees, or willful or wanton misconduct in the planning, design, and construction of improvements to real estate.
Source: SL 1985, ch 156, § 1.
15-2A-2. Legislative intent.
The Legislature intends that this chapter shall bar any action for defects, unsafe conditions, errors, and omissions in the planning, designing, and construction of improvements to real estate after the times limited in this chapter, subject to the exceptions described in this chapter and that this chapter does not deprive any person of any rights or remedies such person may have, or adjust the standard of care after ten years after substantial completion, against persons other than those enumerated in this chapter for damages to property or injury to persons resulting from defective or unsafe conditions of improvement to real estate.
Source: SL 1985, ch 156, § 2.
15-2A-3. Time for bringing action--Date of substantial completion.
No action to recover damages for any injury to real or personal property, for personal injury or death arising out of any deficiency in the design, planning, supervision, inspection, and observation of construction, or construction, of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury or death, may be brought against any person performing or furnishing the design, planning, supervision, inspection, and observation of construction, or construction, of such an improvement more than ten years after substantial completion of such construction. The date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or his representative can occupy or use the improvement for the use it was intended.
Source: SL 1985, ch 156, § 3.
15-2A-4. Persons in control of improvement may not assert limitation.
The limitation in § 15-2A-3 may not be asserted by way of defense by any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.
Source: SL 1985, ch 156, § 4.
15-2A-5. Injuries occurring in tenth year.
Notwithstanding the provisions of § 15-2A-3, in the case of such an injury to property or the person or such an injury causing death, which injury occurred during the tenth year after the substantial completion of such construction, an action to recover damages for such an injury or death may be brought within one year after the date on which such injury occurred, irrespective of the date of death; but in no event may such an action be brought more than eleven years after the substantial completion of construction of such an improvement.
Source: SL 1985, ch 156, § 5.
15-2A-6. Periods otherwise prescribed not extended--Cause of action not created.
Nothing in §§ 15-2A-3 to 15-2A-5, inclusive, may be construed as extending the period prescribed by the laws of this state or any agreement of the parties, nor may anything in this chapter be construed to create any cause of action not heretofore existing or recognized.
Source: SL 1985, ch 156, § 6.
15-2A-7. Persons guilty of fraud or willful misconduct may not assert limitation.
The limitations contained in this chapter may not be asserted as a defense by any person who is guilty of fraud, fraudulent concealment, fraudulent misrepresentations, or willful or wanton misconduct, in furnishing the design, planning, supervision, inspection, and observation of construction, or construction, of improvements to real property.
Source: SL 1985, ch 156, § 7.
15-2A-8. Express warranty or guaranty.
The limitations prescribed in this chapter do not prohibit any action against a defendant who has expressly warranted or guaranteed the improvement to real property for a longer period from being brought within that period.
Source: SL 1985, ch 156, § 8.
15-2A-9. Tolling provisions.
The tolling provisions set forth in § 15-2-22 apply to this chapter.
Source: SL 1985, ch 156, § 9.
15-2A-10. Prospective application.
This chapter is prospective in application.
Source: SL 1985, ch 156, § 11.
15-3-1
Seizin or possession within twenty years required for action to recover real property
or possession.
15-3-2
Seizin or possession within twenty years required for cause of action or defense
based on title to real property.
15-3-3
Limitation of actions based on entry on real estate.
15-3-4
Limitation of actions by state based on title to real property.
15-3-5
Grantee of state limited by limitations applicable to state.
15-3-6
Limitation of actions to recover real property after invalidation of state grant.
15-3-7
Possession of real property presumed from legal title--Occupation by another
presumed subordinate to legal title.
15-3-8
Tenant's possession deemed that of landlord--Continuation after termination of
tenancy.
15-3-9
Possessory right not impaired by descent on death of person in possession.
15-3-10
Twenty years' possession under written instrument or judgment deemed adverse
possession--Tract divided into lots.
15-3-11
Acts constituting adverse possession based on written instrument or judgment.
15-3-12
Actual occupation required for adverse possession under claim other than written
instrument or judgment.
15-3-13
Acts constituting adverse possession under claim other than written instrument or
judgment.
15-3-14
Tolling of statute during disability--Time for commencement of action after removal
of disability.
15-3-15
Vesting of title by possession and payment of taxes for ten years under color of title--Continuation of possession and tax payment by successor in interest.
15-3-16
Vesting of title to unoccupied land by payment of taxes for ten years under color of
title--Continuation of tax payment by successor in interest.
15-3-17
Tax payment vesting provisions not applicable to public lands or religious or
charitable societies.
15-3-18
Tax payment vesting provisions not applicable against person under disability--Time
for commencement of action after removal of disability
.
15-3-19
Time allowed for assertion of irregularities in notice involving real property--Persons
under disability.
15-3-20
Partition fence agreement.
15-3-21
Real estate taxes following determination of adverse possession.
15-3-22
Existing utility lines not affected.
15-3-1. Seizin or possession within twenty years required for action to recover real property or possession.
No action for the recovery of real property, or for the recovery of the possession thereof, shall be maintained unless it appears that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises in question within twenty years before the commencement of such action.
Source: SDC 1939 & Supp 1960, § 33.0217.
15-3-2. Seizin or possession within twenty years required for cause of action or defense based on title to real property.
No cause of action or defense to an action founded upon the title to real property or to rents or services out of the same, shall be effectual unless it appear that the person prosecuting the action or making the defense, or under whose title the action is prosecuted or the defense is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within twenty years before the committing of the act in respect to which such action is prosecuted or defense made.
Source: SDC 1939 & Supp 1960, § 33.0218.
15-3-3. Limitation of actions based on entry on real estate.
No entry upon real estate shall be deemed sufficient or valid as a claim unless an action be commenced thereupon within one year after the making of such entry, and within twenty years from the time when the right to make such entry descended or accrued.
Source: SDC 1939 & Supp 1960, § 33.0219.
15-3-4. Limitation of actions by state based on title to real property.
This state will not sue any person for or in respect to any real property, or the issues or profits thereof, by reason of the right or title of the state to the same, unless:
(1) Such right or title shall have accrued within forty years before any action or other proceeding for the same shall be commenced; or unless
(2) The state, or those from whom it claims, shall have received the rents and profits of such real property, or of some part thereof, within the space of forty years.
Source: SDC 1939 & Supp 1960, § 33.0214.
15-3-5. Grantee of state limited by limitations applicable to state.
No action shall be brought for, or in respect to real property, by any person claiming by virtue of grants from the state unless the same might have been commenced as specified in § 15-3-4, in case such grant had not been issued or made.
Source: SDC 1939 & Supp 1960, § 33.0215.
15-3-6. Limitation of actions to recover real property after invalidation of state grant.
When grants of real property shall have been issued or made by the state and the same shall be declared void by the determination of a competent court, rendered upon an allegation of a fraudulent suggestion, or concealment, or forfeiture, or mistake, or ignorance of a material fact, or wrongful detaining, or defective title, an action for the recovery of the premises so conveyed may be brought either by the state or by any subsequent grantee of the same premises, his heirs or assigns, within twenty years after such determination was made, but not after that period.
Source: SDC 1939 & Supp 1960, § 33.0216.
15-3-7. Possession of real property presumed from legal title--Occupation by another presumed subordinate to legal title.
In every action for the recovery of real property or the possession thereof, the person establishing a legal title to the premises shall be presumed to have been possessed thereof within the time required by law; and the occupation of such premises by any other person shall be deemed to have been under and in subordination to the legal title, unless it appear that such premises have been held and possessed adversely to such legal title for twenty years before the commencement of such action.
Source: SDC 1939 & Supp 1960, § 33.0220.
15-3-8. Tenant's possession deemed that of landlord--Continuation after termination of tenancy.
Whenever the relation of landlord and tenant shall have existed between any persons the possession of the tenant shall be deemed the possession of the landlord until the expiration of twenty years from the termination of the tenancy; or, where there has been no written lease, until the expiration of twenty years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title, or may have claimed to hold adversely to his landlord. Such presumptions shall not be made after the periods herein limited.
Source: SDC 1939 & Supp 1960, § 33.0225.
15-3-9. Possessory right not impaired by descent on death of person in possession.
The right of a person to the possession of any real property shall not be impaired or affected by a descent being cast in consequence of the death of a person in possession of such property.
Source: SDC 1939 & Supp 1960, § 33.0226.
15-3-10. Twenty years' possession under written instrument or judgment deemed adverse possession--Tract divided into lots.
Whenever it shall appear that the occupant, or those under whom he claims, entered into the possession of premises under claim of title, exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree, or judgment, or of some part of such premises under such claim for twenty years, the premises so included shall be deemed to have been held adversely; except that where the premises so included consist of a tract divided into lots the possession of one lot shall not be deemed a possession of any other lot of the same tract.
Source: SDC 1939 & Supp 1960, § 33.0221.
15-3-11. Acts constituting adverse possession based on written instrument or judgment.
For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment, or a decree, land shall be deemed to have been possessed and occupied in the following cases:
(1) Where it has been usually cultivated or improved;
(2) Where it has been protected by a substantial inclosure;
(3) Where, although not inclosed, it has been used for the supply of fuel or of fencing timber for the purposes of husbandry, or the ordinary use of the occupant; or
(4) Where a known farm or a single lot has been partly improved, the portion of such farm or lot that may have been left not cleared or not inclosed according to the usual course and custom of the adjoining country shall be deemed to have been occupied for the same length of time as the part improved and cultivated.
Source: SDC 1939 & Supp 1960, § 33.0222.
15-3-12. Actual occupation required for adverse possession under claim other than written instrument or judgment.
Where it shall appear that there has been an actual continued occupation of premises under a claim of title exclusive of any other right, but not founded upon a written instrument, or a judgment, or decree, the premises so actually occupied, and no other, shall be deemed to have been held adversely.
Source: SDC 1939 & Supp 1960, § 33.0223.
15-3-13. Acts constituting adverse possession under claim other than written instrument or judgment.
For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument, or judgment, or decree, land shall be deemed to have been possessed and occupied in the following cases only:
(1) Where it has been protected by a substantial inclosure; or
(2) Where it has been usually cultivated or improved.
Source: SDC 1939 & Supp 1960, § 33.0224.
15-3-14. Tolling of statute during disability--Time for commencement of action after removal of disability.
If a person entitled to commence any action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents or service out of the same, be, at the time such title shall first descend or accrue, either:
(1) Within the age of twenty-one years;
(2) Mentally ill; or
(3) Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense for a term less than for life;
the time during which such disability shall continue shall not be deemed any portion of the time in this chapter limited for the commencement of such action, or the making of such entry or defense; but such action may be commenced, or entry or defense made after the period of twenty years, and within ten years after the disability shall cease, or after the death of the person entitled who shall die under such disability, but such action shall not be commenced, or entry, or defense made after that period.
Source: SDC 1939 & Supp 1960, § 33.0227.
15-3-15. Vesting of title by possession and payment of taxes for ten years under color of title--Continuation of possession and tax payment by successor in interest.
Every person in the actual possession of lands or tenements under claim and color of title made in good faith, and who shall have continued for ten successive years in such possession, and shall also during said time have paid all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements to the extent and according to the purport of his paper title. All persons holding under such possession by purchase, devise, or descent before said ten years shall have expired, and who shall have continued such possession and payment of taxes as aforesaid so as to complete said term of ten years of such possession and payment of taxes, shall be entitled to the benefit of this section.
Source: SDC 1939 & Supp 1960, § 33.0228.
15-3-16. Vesting of title to unoccupied land by payment of taxes for ten years under color of title--Continuation of tax payment by successor in interest.
Whenever a person having a color of title made in good faith to vacant and unoccupied land, shall have paid all taxes legally assessed thereon for ten successive years, he shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land to the extent and according to the purport of his paper title. All persons holding under such taxpayer by purchase, devise, or descent before said ten years shall have expired, and who shall have continued to pay taxes as aforesaid so as to complete the payment of taxes for said term of ten years, shall be entitled to the benefit of this section.
Source: SDC 1939 & Supp 1960, § 33.0229.
15-3-17. Tax payment vesting provisions not applicable to public lands or religious or charitable societies.
The provisions of §§ 15-3-15 and 15-3-16 shall not extend to school lands or to lands belonging to the United States or this state, or to religious or charitable societies, or to lands held for a public purpose.
Source: SDC 1939 & Supp 1960, § 33.0230.
15-3-18. Tax payment vesting provisions not applicable against person under disability--Time for commencement of action after removal of disability.
Sections 15-3-15 and 15-3-16 shall not extend to lands or tenements to which there is an adverse title, the holder of which is, at the expiration of said ten years, under the age of twenty-one years, mentally ill, or imprisoned for a criminal offense for a term less than life; provided, such person shall within three years after the removal of such disability begin an action to recover possession of such lands, or to establish his title thereto, and prosecute the same to judgment with due diligence.
Source: SDC 1939 & Supp 1960, § 33.0230.
15-3-19. Time allowed for assertion of irregularities in notice involving real property--Persons under disability.
Whenever any notice required by law to be served in any judicial or other proceeding authorized by law affecting the title to any real property in this state upon any person having or claiming to have any title to, interest in, or lien upon such real property heretofore has been or hereafter shall be personally served upon such person either within this state or elsewhere, and proof of such service made and filed, notwithstanding such notice may have been or may be defective in form, if it described or shall describe the real property intended to be affected with sufficient certainty to inform the person so served of the tract intended, and to enable a person of ordinary intelligence to understand the object and effect of the notice, no objection to the sufficiency or form of the notice, or to the form of proof of service shall be considered in any action or proceeding involving the title to the real property affected thereby unless the objection be properly made and advantage sought to be taken of it within three years from the personal service of the same. Nothing herein contained shall operate to extend the time for doing any of the acts herein mentioned where the failure to make such objection would, independently of this section, create an estoppel to such objection. Any person under disability at the time of the service of such notice may make objection to the regularity or sufficiency of the same at any time within three years from the removal of the disability.
Source: SDC 1939 & Supp 1960, § 33.0231.
15-3-20. Partition fence agreement.
Adjacent landowners in an unincorporated area of the state may agree to waive the provisions of this chapter. The agreement may, but need not, be in the following form:
This document prepared by:
Name: ________________________
Address: ______________________
______________________
Telephone: ____________________
PARTITION FENCE AGREEMENT
This Agreement is made this __________ day of _____________, 20 _____.
WHEREAS, _________________________, and _____________________________
is/are the owner(s) of certain real property described as follows:
_________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
designated hereafter as "Tract A"; and
WHEREAS, ___________________________, and ___________________________
is/are the owner(s) of real property adjoining the above-described property and described as follows: _________________________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
designated hereafter as "Tract B"; and
WHEREAS, there is a partition fence separating the property described above.
NOW, THEREFORE, it is hereby agreed as follows:
The partition fence separating Tract A and Tract B is for the mutual convenience of the owners. The partition fence does not necessarily reflect the actual or true boundary line separating Tract A and Tract B. The partition fence is placed and constructed to accommodate surface terrain rather than identify the actual legal property lines. To the extent that the partition fence deviates from the legal property line, the owners agree that neither holds the possession adversely to the other as contemplated in South Dakota Codified Laws chapter 15-3. Due to the cost of replacing and repositioning the partition fence, neither the owner of Tract A or the owner of Tract B at this time desires to do so.
Nothing in this agreement restricts the right of the owner of either tract in the future, to exercise the right to have the partition fence repaired or repositioned upon the legal property line. Ownership and right of possession of the real property and the real estate tax attendant to the real property are governed by the records in the Register of Deeds for ______________ County.
Dated this ________ day of ___________, 20 ____.
_____________________________ ________________________________
Owner, Tract A Owner, Tract A
County of _________________
State of ___________________
On this _______ day of ____________, 20 ____, before me, the undersigned officer, personally appeared __________________ and __________________, Owners of Tract A above described, known to me or satisfactorily proven to be the person(s) whose names are subscribed to the within instrument and acknowledged that they executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________________
Notary Public, South Dakota
My commission expires: _______________
Notary Printed Name: __________________
Dated this _____ day of __________, 20 _____.
________________________________ __________________________________
Owner, Tract B Owner, Tract B
County of _______________________
State of _________________________
On this ____ day of __________, 20 ____, before me, the undersigned officer, personally appeared ___________________________ and ________________________________, Owners of Tract B above described, known to me or satisfactorily proven to be the person(s) whose names are subscribed to the within instrument and acknowledged that they executed the same for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
___________________________________
Notary Public, South Dakota
My commission expires: _______________
Notary Printed Name: __________________
Source: SL 2018, ch 125, § 1.
15-3-21. Real estate taxes following determination of adverse possession.
Upon a judicial determination of adverse possession the adjacent landowner acquiring the ownership and right to possession pursuant to this chapter becomes immediately liable for all future real estate taxes on the property. The previous owner may petition a circuit court to determine the precise acreage for which responsibility for real property taxes is transferred. The circuit court may assess reasonable costs including the cost of surveying the property.
Source: SL 2018, ch 125, § 2.
15-3-22. Existing utility lines not affected.
No agreement or judicial determination of adverse possession shall affect existing utility lines.
Source: SL 2018, ch 125, § 3.
15-4-1
Causes of action surviving death of party--Brought by or against legal representative.
15-4-2
Action continues where cause of action survives.
15-4-3
Death of party after verdict or decision and before judgment--Judgment payable in course
of administration.
15-4-4
Death of nonresident appellant pending appeal--Revival and substitution of representative
required to avoid affirmance.
15-4-1. Causes of action surviving death of party--Brought by or against legal representative.
All causes of action shall survive and be brought, notwithstanding the death of the person entitled or liable to the same. Any such action may be brought by or against the personal representative or successors in interest of the deceased.
Source: SL 1951, ch 186, §§ 1, 2; SDC Supp 1960, § 33.0414-1.
15-4-2. Action continues where cause of action survives.
No action shall abate by the death or other disability of a party or by the transfer of any interest therein if the cause of action survive or continue.
Source: SDC 1939 & Supp 1960, § 33.0414.
15-4-3. Death of party after verdict or decision and before judgment--Judgment payable in course of administration.
If a party die after a verdict or decision upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon. Such judgment is not a lien on the real property of the deceased party, but is payable in the course of administration on his estate.
Source: SDC 1939 & Supp 1960, § 33.1706.
15-4-4. Death of nonresident appellant pending appeal--Revival and substitution of representative required to avoid affirmance.
When an intestate not being an inhabitant of the state shall die not leaving assets therein and there shall be pending in the Supreme Court an appeal brought by such intestate from a judgment against him, the court in which such appeal is pending may order the judgment appealed from affirmed with costs, unless the attorney for the intestate on said appeal procure such action to be revived within six months after notice to proceed with such appeal by the substitution of a representative in said action.
Source: SDC 1939 & Supp 1960, § 33.0414.
15-5-1
Venue based on location of subject matter.
15-5-2
Venue where cause of action arose.
15-5-3
Venue of actions on life, health and accident insurance policies.
15-5-4
Venue of actions on fidelity bond executed by domestic company.
15-5-5
Venue of actions on contracts and bonds other than fidelity bond issued by domestic
company.
15-5-6
Venue based on residence of defendant--Nonresident defendants--Payment of jurors'
fees and mileage--Stipulation to venue.
15-5-7
Venue of action on promissory note.
15-5-8
Venue of actions for conversion or recovery of damages.
15-5-8.1
Venue of actions arising out of real property lease agreements.
15-5-9
Dismissal of action where party added to control venue.
15-5-10
Trial of action in county where commenced unless defendant demands change of
venue.
15-5-11
Grounds for change of venue.
15-5-12
Continuation of proceedings after change of venue--Transfer of papers.
15-5-13
Terms allowed on change of venue from improper county--Payment of costs required
before continuation or commencement of new action.
15-5-14
Change of venue in postjudgment divorce, paternity, or separate maintenance actions
.
15-5-1. Venue based on location of subject matter.
Actions for the following causes must be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial in the cases provided by the statute:
(1) For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property;
(2) For the partition of real property;
(3) For the foreclosure of a mortgage of real property;
(4) For the recovery of personal property distrained for any cause;
(5) For the recovery on a policy of insurance for loss or damage to the property insured, such property, for the purposes of this subdivision being deemed the subject of the action.
Source: SDC 1939 & Supp 1960, § 33.0301.
15-5-2. Venue where cause of action arose.
Actions for the following causes, or upon the following instruments, must be tried in the county where the cause, or some part thereof, arose, or the forfeiture was declared, subject to the power of the court to change the place of trial:
(1) For the recovery of a penalty or forfeiture imposed by statute, except that when it is imposed for an offense committed on a lake or river, or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite to the place where the offense was committed;
(2) Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who, by his command or his aid, shall do anything touching the duties of such officer;
(3) Upon a forfeited recognizance, bond, or undertaking of bail.
Source: SDC 1939 & Supp 1960, § 33.0303.
15-5-3. Venue of actions on life, health and accident insurance policies.
Actions on a life, health, or accident insurance policy issued by a company organized under the laws of this state shall be tried in the county where the insured resided at the time a liability is alleged to have accrued under the policy.
Source: SDC 1939, § 33.0302; SL 1943, ch 123.
15-5-4. Venue of actions on fidelity bond executed by domestic company.
Actions on a fidelity bond executed by a surety, fidelity, or guaranty company organized under the laws of this state shall be tried in the county where the default or defalcation provided against in the bond occurred.
Source: SDC 1939, § 33.0302; SL 1943, ch 123.
15-5-5. Venue of actions on contracts and bonds other than fidelity bond issued by domestic company.
Actions on contracts, surety bonds, or bonds of indemnity or liability, other than those referred to in § 15-5-4, issued by any such company or companies shall be brought and tried in the county where the indemnified resides at the time said action is commenced; or in the county where such liability or loss indemnified by such contract or bond occurred.
Source: SDC 1939, § 33.0302; SL 1943, ch 123.
15-5-6. Venue based on residence of defendant--Nonresident defendants--Payment of jurors' fees and mileage--Stipulation to venue.
In all other cases, except as provided in § 15-5-7, 15-5-8, or 15-5-8.1, the action shall be tried in the county in which the defendant or defendants, or any of them, shall reside at the commencement of the action. However, if none of the defendants reside in the state, the action may be tried in any county which the plaintiff shall designate in his complaint, subject, however, to the power of the court to change the place of trial in the cases provided by statute. In the second event, the jurors' fees and mileage payments shall be paid by the parties in such proportions as the court may order. If the parties stipulate to a venue which is not specified in §§ 15-5-1 to 15-5-5, inclusive, the first sentence of this section, § 15-5-7, 15-5-8, or 15-5-8.1, the stipulation must be approved by a court order which also provides for the payment of jurors' fees and mileage payments by the parties.
Source: SDC 1939 & Supp 1960, § 33.0304; SL 1976, ch 146; SL 1985, ch 158; SL 2016, ch 110, § 2.
15-5-7. Venue of action on promissory note.
An action upon a promissory note against persons, any one of whom resides in the state at the commencement of the action and was a party to said note when first delivered, shall be tried in the county in which some defendant who was a party to said note when first delivered shall reside at the commencement of the action; or if none of the defendants shall reside in the state, the same may be tried in any county which the plaintiff shall designate in his complaint, subject, however, to the power of the court to change the place of trial in the cases provided by statute.
Source: SDC 1939 & Supp 1960, § 33.0304.
15-5-8. Venue of actions for conversion or recovery of damages.
Actions for conversion of personal property, or for the recovery of damages to persons or property, may at the option of the plaintiff be brought and tried in the county where the damages were inflicted or the cause of action arose.
Source: SDC 1939 & Supp 1960, § 33.0304.
15-5-8.1. Venue of actions arising out of real property lease agreements.
Any breach of contract action between a lessor and a lessee that arises out of a real property lease agreement shall be tried in the county in which any portion of the real property subject to the lease agreement is located.
Source: SL 2016, ch 110, § 1.
15-5-9. Dismissal of action where party added to control venue.
Whenever the plaintiff in any action adds to the real party defendant the name of any other party for the purpose of controlling the venue, the court shall upon motion of the proper party defendant dismiss the action.
Source: SDC 1939 & Supp 1960, § 33.0304.
15-5-10. Trial of action in county where commenced unless defendant demands change of venue.
If the county designated for that purpose in the complaint is not the proper county, the action may, notwithstanding, be tried therein unless the defendant, before the time for answering expires, demands in writing that the trial be had in the proper county, and the place of trial be thereupon changed by the consent of the parties or by order of the court, as provided in § 15-5-11.
Source: SDC 1939 & Supp 1960, § 33.0305.
15-5-11. Grounds for change of venue.
The court may change the place of trial in the following cases:
(1) When the county designated for that purpose in the complaint is not the proper county;
(2) Where there is reason to believe that an impartial trial cannot be had therein;
(3) When the convenience of witnesses, and the ends of justice would be promoted by the change.
Source: SDC 1939 & Supp 1960, § 33.0306.
15-5-12. Continuation of proceedings after change of venue--Transfer of papers.
When the place of trial is changed all other proceedings shall be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties, in writing, duly filed, or by order of the court; and the papers shall be filed or transferred accordingly.
Source: SDC 1939 & Supp 1960, § 33.0306.
15-5-13. Terms allowed on change of venue from improper county--Payment of costs required before continuation or commencement of new action.
If the county designated is not the proper county and where the court changes the place of trial on account of the action having been brought in the wrong county, the court, in its order granting the change of place of trial, may in its discretion allow to the moving party such terms as to it may seem just; and in case of a dismissal of the action or change of place of trial, the payment of the amount awarded by the court shall be made a condition precedent to the commencement of another action or the further prosecution of the action where change of place of trial has been granted.
Source: SDC 1939 & Supp 1960, § 33.0306.
15-5-14. Change of venue in postjudgment divorce, paternity, or separate maintenance actions.
The court may change the venue of trial or hearing in postjudgment divorce, paternity, or separate maintenance actions if:
(1) The parties no longer reside in the county where the action was decided; or
(2) The parties agree; or
(3) Convenience of witnesses or the ends of justice would be promoted by the change.
Source: SL 1998, ch 111, § 1.
CHAPTER 15-5A
INTERACTIVE AUDIOVISUAL DEVICE USE IN COURT PROCEEDINGS
15-5A-1 General provisions.
15-5A-2 Traffic offense proceedings.
15-5A-3 Pre-trial criminal proceedings.
15-5A-4 Misdemeanor plea or sentencing hearings.
15-5A-5 Post-conviction proceedings.
15-5A-6 Juvenile proceedings.
15-5A-7 Civil commitment hearings.
15-5A-8 Grand jury proceedings.
15-5A-9 Where not permitted.
15-5A-10 Any proceeding where the court and parties agree.
15-5A-11 Interactive audio visual equipment for noncourt proceedings--Fees.
15-5A-1. General provisions.
Whenever a proceeding in civil or criminal court is permitted under these rules to be conducted by interactive audiovisual device, the device shall enable a judge or magistrate to see and converse simultaneously with the parties, their counsel or other persons including witnesses. The interactive audiovisual signal shall be transmitted live and shall be secure from interception through lawful means by anyone other than the persons participating in the proceeding.
Parties and witnesses appearing by means of an interactive audiovisual device at proceedings authorized under this chapter to be conducted by such device are deemed to be present at the proceedings. Proceedings conducted by interactive audiovisual device under this chapter are also deemed to be conducted in open court unless otherwise closed to the public pursuant to statute.
A judge or any other person authorized by law to administer oaths may administer an oath to a witness who is not personally present but who is appearing by means of the interactive audiovisual device. The provisions of § 22-29-1 shall apply even though the person taking the oath was not personally present before the person administering the oath, and prosecution for perjury shall take place in the jurisdiction of the tribunal receiving the interactive audiovisual testimony.
If parties and their counsel are at different locations, arrangements must be made so that they can communicate privately. Facilities must be available so that any documents filed or referred to during the interactive audiovisual communication, or required to be provided to a party, his or her counsel, or a witness prior to or during the proceeding, may be transmitted electronically, including, but not limited to, facsimile, personal computers, other terminal devices, and local, state, and national data networks. Any documents furnished by means of such an electronic data transmission may be served or executed by the person to whom it is sent, and returned in the same manner, and with the same force, effect, authority, and liability as an original document. All signatures on the electronic data transmissions shall be treated as original signatures.
Nothing contained herein shall be construed as affecting a defendant's right to waive counsel.
Source: SL 2007, ch 301 (Supreme Court Rule 06-69), eff. Jan. 1, 2007; SL 2022, ch 254 (Supreme Court Rule 22-01), eff. Feb. 1, 2022.
15-5A-2. Traffic offense proceedings.
At the discretion of the court, all traffic offense proceedings may be conducted by interactive audiovisual device.
Source: SL 2007, ch 301 (Supreme Court Rule 06-69), eff. Jan. 1, 2007.
15-5A-3. Pre-trial criminal proceedings.
At the discretion of the court, whenever the law requires a defendant in a misdemeanor or felony criminal case to appear before a judge or magistrate for an initial or subsequent appearance, bail, arraignment, or other pre-trial proceeding, the proceeding may be conducted by interactive audiovisual device, in which case the defendant shall not be required to be physically brought before the judge or magistrate.
Source: SL 2007, ch 301 (Supreme Court Rule 06-69), eff. Jan. 1, 2007.
15-5A-4. Misdemeanor plea or sentencing hearings.
At the discretion of the court, misdemeanor plea hearings and misdemeanor sentence hearings may be conducted by interactive audiovisual device.
Source: SL 2007, ch 301 (Supreme Court Rule 06-69), eff. Jan. 1, 2007.
15-5A-5. Post-conviction proceedings.
At the discretion of the court, post-conviction proceedings, including habeas corpus proceedings, may be conducted by interactive audiovisual device.
Source: SL 2007, ch 301 (Supreme Court Rule 06-69), eff. Jan. 1, 2007.
15-5A-6. Juvenile proceedings.
At the discretion of the court, interactive audiovisual devices may be used to conduct detention, advisory, status, admissions, change of plea, dispositional and review hearings in juvenile court. Judges may, in their discretion, require legal counsel or, if proceeding pro se, a parent or legal guardian, to be physically present in the same location with a juvenile who is appearing by means of interactive audiovisual device.
Source: SL 2007, ch 301 (Supreme Court Rule 06-69), eff. Jan. 1, 2007.
15-5A-7. Civil commitment hearings.
At the discretion of the court, civil commitment hearings may be conducted by interactive audiovisual device.
Source: SL 2007, ch 301 (Supreme Court Rule 06-69), eff. Jan. 1, 2007.
15-5A-8. Grand jury proceedings.
At the discretion of the prosecuting attorney, grand jury proceedings, including taking testimony of witnesses, may be conducted by interactive audiovisual device.
Source: SL 2007, ch 301 (Supreme Court Rule 06-69), eff. Jan. 1, 2007.
15-5A-9. Where not permitted.
Use of interactive audiovisual device will not be permitted to conduct any felony plea hearings, any stage of trial, felony sentencing, or probation revocation hearing unless all parties to the proceeding stipulate to the use of the interactive audiovisual device for one of the aforementioned purposes. The judge presiding over the matter always retains the discretion not to allow an appearance by interactive audiovisual device if the judge believes that to do so would prejudice any party to the proceeding.
Source: SL 2007, ch 301 (Supreme Court Rule 06-69), eff. Jan. 1, 2007.
15-5A-10. Any proceeding where the court and parties agree.
Unless prohibited by any other law, all other proceedings where the court and parties agree may be conducted by interactive audiovisual device.
Source: SL 2007, ch 301 (Supreme Court Rule 06-69), eff. Jan. 1, 2007.
15-5A-11. Interactive audio visual equipment for noncourt proceedings--Fees.
The Supreme Court may establish rules pursuant to § 16-3-1 to provide for the use of interactive audio visual equipment for noncourt proceedings and to establish a fee schedule for any such use by nonstate agencies. Any fee collected pursuant to this section shall be deposited into the state court automation fund.
Source: SL 2012, ch 109, § 1.
CHAPTER 15-6
RULES OF PROCEDURE IN CIRCUIT COURTS
15-6-1 Scope of Chapter.
15-6-2 One form of action.
15-6-3 Commencement of action.
15-6-4(a) Summons--Form.
15-6-4(b) Summons served without complaint.
15-6-4(c) By whom summons served.
15-6-4(d) Personal service of summons.
15-6-4(e) Service by leaving copy with resident of defendant's dwelling.
15-6-4(f) Service upon party not a resident of or found within state.
15-6-4(g) Proof of service.
15-6-4(h) Amendment of process.
15-6-4(i) Service by mail--Admission of service--Costs.
15-6-4(j) Form of notice and admission of service by mail.
15-6-5(a) Service--When required.
15-6-5(b) Service--How made--Proof.
15-6-5(c) Service on numerous defendants.
15-6-5(d) Filing of papers--Originals--Copies.
15-6-5(e) Definition--Filing with the court.
15-6-5(f) Repealed.
15-6-5(g) Documents not to be filed--Depositions.
15-6-5(h) Civil Case Filing Statements.
15-6-5(i) Service of discovery requests by electronic mail or portable storage media device--Costs.
15-6-5(j) Repealed.
15-6-6(a) Computation of time.
15-6-6(b) Enlargement of time.
15-6-6(c) 15-6-6(c). Superseded
15-6-6(d) Time for motion--Affidavits--Briefs.
15-6-6(e) Additional time after service by mail--Facsimile and electronic mail transmission service exempt.
15-6-7 15-6-7. Pleadings allowed--form of motions
15-6-7(a) Pleadings.
15-6-7(b) Motions and other papers.
15-6-7(c) Demurrers, pleas, and exceptions abolished.
15-6-8 15-6-8. General rules of pleading
15-6-8(a) Claims for relief.
15-6-8(b) Defenses--Form of denials.
15-6-8(c) Defenses--Form of denials.
15-6-8(d) Effect of failure to deny.
15-6-8(e) Pleading to be concise and direct--Consistency.
15-6-8(f) Construction of pleadings.
15-6-9 15-6-9. Pleading special matters
15-6-9(a) Pleading capacity.
15-6-9(b) Pleading fraud, mistake, condition of the mind.
15-6-9(c) Pleading conditions precedent.
15-6-9(d) Pleading official document or act.
15-6-9(e) Pleading judgment.
15-6-9(f) Pleading time and place.
15-6-9(g) Pleading special damage.
15-6-9(h) Unknown party--How designated in pleadings and process.
15-6-9(i) Complaint in action for libel or slander.
15-6-10 15-6-10. Form of pleadings
15-6-10(a) Caption--Names of parties.
15-6-10(b) Paragraphs--Separate statements.
15-6-10(c) Adoption by reference--Exhibits.
15-6-10(d) Roman numerals--Use--Restrictions.
15-6-10(e) Formatting of pleadings.
15-6-11 15-6-11. Signing of Pleadings
15-6-11(a) Signature.
15-6-11(b) Representations to court.
15-6-11(c) Sanctions.
15-6-11(d) Inapplicability to discovery.
15-6-11(e) Appeal to Supreme Court--Award of attorneys' fees and costs on appeal.
15-6-12 15-6-12. Defenses and objections
15-6-12(a) Time for presenting defenses and objections.
15-6-12(b) Manner of presenting defenses and objections.
15-6-12(c) Motion for judgment on the pleadings.
15-6-12(d) Preliminary hearings.
15-6-12(e) Motion for more definite statement.
15-6-12(f) Motion to strike.
15-6-12(g) Consolidation of defenses in motion.
15-6-12(h) Waiver or preservation of certain defenses.
15-6-13 15-6-13. Counterclaim and cross-claim
15-6-13(a) Compulsory counterclaims.
15-6-13(b) Permissive counterclaims.
15-6-13(c) Counterclaim exceeding opposing claim.
15-6-13(d) Counterclaim against the State of South Dakota.
15-6-13(e) Counterclaim maturing or acquired after pleading.
15-6-13(f) Omitted counterclaim.
15-6-13(g) Cross-claim against co-party.
15-6-13(h) Joinder of additional parties.
15-6-13(i) Separate trials--Separate judgments.
15-6-14 15-6-14. Third-party practice
15-6-14(a) When defendant may bring in third party.
15-6-14(b) When plaintiff may bring in third party.
15-6-15 15-6-15. Amended and supplemental pleadings
15-6-15(a) Amendments to pleadings.
15-6-15(b) Amendments to conform to the evidence.
15-6-15(c) Relation back of amendments to pleadings.
15-6-15(d) Supplemental pleadings.
15-6-16 Pretrial procedure--Formulating issues.
15-6-17 15-6-17. Parties plaintiff and defendant--capacity
15-6-17(a) Real party in interest.
15-6-17(b) Capacity to sue or be sued.
15-6-17(c) Representation of minors or incompetent persons.
15-6-18 15-6-18. Joinder of claims and remedies
15-6-18(a) Joinder of claims.
15-6-18(b) Joinder of remedies--Fraudulent conveyances.
15-6-19 15-6-19. Joinder of persons needed for just adjudication
15-6-19(a) Persons to be joined if feasible.
15-6-19(b) Determination by court whenever joinder not feasible.
15-6-19(c) Pleading reasons for nonjoinder.
15-6-19(d) Exception of class actions.
15-6-20 15-6-20. Permissive joinder of parties
15-6-20(a) Permissive joinder.
15-6-20(b) Separate trials.
15-6-21 Misjoinder and nonjoinder of parties.
15-6-22 Interpleader.
15-6-23 15-6-23. Class actions
15-6-23.1 Derivative actions by unincorporated associations.
15-6-23.2 Actions relating to unincorporated associations.
15-6-23(a) Prerequisites to a class action.
15-6-23(b) Class actions maintainable.
15-6-23(c) Determination by order whether class action to be maintained--Notice--Judgment--Actions conducted partially as class actions.
15-6-23(d) Orders in conduct of actions.
15-6-23(e) Dismissal or compromise of class actions.
15-6-24(a) Intervention of right.
15-6-24(b) Permissive intervention.
15-6-24(c) Procedure for intervention.
15-6-25 15-6-25. Substitution of parties
15-6-25.1 Dismissal of parties--Subsequent pleadings.
15-6-25(a) Death of party.
15-6-25(b) Incompetency of party.
15-6-25(c) Transfer of party's interest.
15-6-25(d) Officer as party--Death or separation from office.
15-6-25(e) Judgment for possession of real property--Successor in interest--Revival.
15-6-26 15-6-26. --Discovery pending action
15-6-26(a) Discovery methods.
15-6-26(b) Scope of discovery.
15-6-26(c) Protective orders.
15-6-26(d) Sequence and timing of discovery.
15-6-26(e) Supplementation of responses.
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.
15-6-27(b) Depositions pending appeal.
15-6-27(c) Perpetuation of testimony by action.
15-6-28 15-6-28. Persons before whom depositions may be taken
15-6-28.1 Interstate depositions and discovery.
15-6-28.2 Definitions.
15-6-28.3 Issuance of subpoena for interstate depositions and discovery.
15-6-28.4 Service of subpoena for interstate depositions and discovery.
15-6-28.5 Deposition, production, inspection, witness fees, expenses, place of examination, attendance where required.
15-6-28.6 Application to court.
15-6-28(a) Taking depositions within the United States.
15-6-28(b) Taking depositions in foreign countries.
15-6-28(c) Disqualification to take deposition for interest.
15-6-29 Stipulations regarding the taking of depositions.
15-6-30 15-6-30. Depositions upon oral examinations
15-6-30(a) When depositions may be taken.
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(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(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(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(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(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.
15-6-58(a) Prompt entry--Form--Effective date--Filing.
15-6-58(b) Proposed order or judgment--Time to confer--Notation--Objection procedure--Waiver--Modification.
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-B CIRCUIT COURT RULES (See § 15-6-83)
15-6-C APPENDIX OF FORMS (See § 15-6-84)
15-6-A SPECIAL PROCEEDINGS (See § 15-6-81(a))
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.
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 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.
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(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(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(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(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(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(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(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(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(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(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(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(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(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(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(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(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;
(C) The desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(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(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(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.
15-6-27(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(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
(c) Permit inspection of premises under the control of the person.
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.
(C) A subpoena under subsection (B) must:
(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(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(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.
15-6-32(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(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(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(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(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(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
(C) The party failing to admit had reasonable ground to believe that the party might prevail on the matter; 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(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(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(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(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(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(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(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(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(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(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(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(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(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
(C) Direct entry of judgment as a matter of law; 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(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(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(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(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(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(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.
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.
15-6-58(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.
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.
15-6-59(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(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(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(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(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.
(C) Deadline. Motions for summary judgment under § 15-6-56 must be filed no later than 90 days before trial.
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(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.
15-6-80. 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(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(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.
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.
Source: SD RCP, Appendix A, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.
15-7-1
Persons, organizations, and entities subject to general jurisdiction provisions.
15-7-2
Acts within the state subjecting persons to jurisdiction of the courts.
15-7-3
Service of process outside the state.
15-7-4
Retroactive application of general jurisdiction provisions.
15-7-5
Severability of general jurisdiction provisions.
15-7-6
Motor vehicle operation deemed appointment of secretary of state as agent to receive
process--Binding on personal representative--Agreement as to legal force of process
served.
15-7-7
Service on secretary of state for nonresident motorist--Fee--Notice mailed to
defendant--Record of process served.
15-7-8
Continuance of action to permit defense by motorist served through secretary of state.
15-7-9
Aircraft operation in state as appointment of agent to receive process--Agreement as
to force of process served on agent.
15-7-10
Service on secretary of transportation for nonresident or absent aircraft operator--Fee--Forwarding to defendant--Service without the state--Time for appearance by
defendant--Record of process served.
15-7-11
Proof of service on nonresident or absent aircraft operator.
15-7-12
Continuance of action to permit defense by nonresident or absent aircraft operator.
15-7-13
Hunting in state by nonresident as appointment of agent to receive process--Agreement as to force of process served.
15-7-14
Service of process on secretary of state for nonresident hunter--Fee--Mailing to
defendant--Personal service outside state--Time for appearance by defendant--Record
of process served.
15-7-15
Proof of service on nonresident hunter.
15-7-16
Continuance of action to permit defense by nonresident hunter.
15-7-17
Consent to jurisdiction by persons selling property or services to residents--Service.
15-7-1. Persons, organizations, and entities subject to general jurisdiction provisions.
As used in §§ 15-7-1 to 15-7-5, inclusive, the term, person, whether or not a citizen or resident of this state, and whether or not organized under the laws of this state, includes an individual whether operating in his own name or under his trade name; an individual's agent or personal representative; a corporation; a limited liability company; a business trust; an estate; a trust; a partnership; an unincorporated association; and any two or more persons having a joint or common interest or any other legal or commercial entity.
Source: SL 1965, ch 163, § 1; SL 1994, ch 351, § 35.
15-7-2. Acts within the state subjecting persons to jurisdiction of the courts.
Any person is subject to the jurisdiction of the courts of this state as to any cause of action arising from the doing personally, through any employee, through an agent or through a subsidiary, of any of the following acts:
(1) The transaction of any business within the state;
(2) The commission of any act which results in accrual within this state of a tort action;
(3) The ownership, use, or possession of any property, or of any interest therein, situated within this state;
(4) Contracting to insure any person, property, or risk located within this state at the time of contracting;
(5) Entering into a contract for services to be rendered or for materials to be furnished in this state by such person;
(6) Acting as director, manager, trustee, or other officer of any corporation organized under the laws of, or having its principal place of business within this state, or as personal representative of any estate within this state;
(7) Failure to support a minor child residing in South Dakota;
(8) Having sexual intercourse in this state, which act creates a cause of action for the determination of paternity of a child who may have been conceived by that act of intercourse;
(9) With respect to any action for divorce, separate maintenance, or spousal support the maintenance in this state of a matrimonial domicile at the time the claim arose or the commission in this state of an act giving rise to the claim, subject to the provisions of § 25-4-30;
(10) Entering into negotiations with any person within the state with the apparent objective of contracting for services to be rendered or materials to be furnished in this state;
(11) Commencing or participating in negotiations, mediation, arbitration, or litigation involving subject matter located in whole or in part within the state;
(12) Doing any act for the purpose of influencing legislation, administrative rule-making or judicial or administrative decision-making by any local, state, or federal official whose official function is being performed within the state, providing that an appearance to contest personal jurisdiction shall not be within this subsection;
(13) The commission of any act which results in the accrual of an action in this state for a violation of the antitrust laws of the United States or chapter 37-1;
(14) The commission of any act, the basis of which is not inconsistent with the Constitution of this state or with the Constitution of the United States.
Source: SL 1965, ch 163, § 2; SL 1978, ch 146, §§ 1, 2; SL 1983, ch 156, § 1; SL 1984, ch 190, § 48; SL 1986, ch 162.
15-7-3. Service of process outside the state.
Service of process upon the persons subject to § 15-7-2 may be made by service outside this state in the same manner provided for service within this state with the same force and effect as though service had been made within this state.
Source: SL 1965, ch 163, § 3.
15-7-4. Retroactive application of general jurisdiction provisions.
The provisions of §§ 15-7-1 to 15-7-3, inclusive, shall apply to causes of action arising before enactment hereof.
Source: SL 1965, ch 163, § 4.
15-7-5. Severability of general jurisdiction provisions.
If any provisions of §§ 15-7-1 to 15-7-4, inclusive, or the application thereof to any person or circumstances are held invalid, such invalidity shall not affect other provisions or applications of said sections which can be given effect without the invalid provision or application, and to this end, the provisions of said sections are declared to be severable.
Source: SL 1965, ch 163, § 5.
15-7-6. Motor vehicle operation deemed appointment of secretary of state as agent to receive process--Binding on personal representative--Agreement as to legal force of process served.
The use and operation by a resident of this state or the resident's agent, or by a nonresident or the nonresident's agent of a motor vehicle within the State of South Dakota, shall be deemed an irrevocable appointment by the resident or the resident's agent when the resident has been absent from this state continuously for ninety days or more following a motor vehicle accident, or by the nonresident or the nonresident's agent at any time, of the secretary of State of South Dakota to be his or her true and lawful attorney upon whom may be served all legal process in any action or proceeding against the resident or nonresident or his or her personal representative growing out of such use and operation of a motor vehicle within this state, resulting in damages or loss to person or property, whether the damage or loss occurs on a highway or on abutting public or private property. The appointment is binding upon the nonresident's personal representative. The use or operation of a motor vehicle by the resident or nonresident is a signification of the resident's or nonresident's agreement that any such process in any action against the resident or nonresident or his or her personal representative which is so served, shall be of the same legal force and validity as if served upon the resident or nonresident personally or on the resident's or nonresident's personal representative.
Source: SDC 1939, § 33.0809; SL 1957, ch 178; SL 1963, ch 226; SL 1969, ch 153; SL 2006, ch 110, § 1.
15-7-7. Service on secretary of state for nonresident motorist--Fee--Notice mailed to defendant--Record of process served.
Service of process as authorized by § 15-7-6 shall be made by serving a copy thereof upon the secretary of state, or by filing the copy in the office of the secretary of state, together with payment of a fee of fifteen dollars. The service shall be sufficient service upon the absent resident or the nonresident or the resident's or nonresident's personal representative if the notice of the service and a copy of the process are within ten days thereafter sent by mail by the plaintiff to the defendant at the defendant's last-known address and that the plaintiff's affidavit of compliance with the provisions of this section is attached to the summons. The secretary of state shall keep a record of any process so served. The record shall show the day and hour of the service. The fee of fifteen dollars paid by the plaintiff to the secretary of state at the time of service of the process shall be recovered as taxable costs if the plaintiff prevails in the suit.
Source: SDC 1939, § 33.0809; SL 1957, ch 178; SL 1963, ch 226; SL 2003, ch 8, § 4; SL 2009, ch 4, § 5.
15-7-8. Continuance of action to permit defense by motorist served through secretary of state.
When process is served pursuant to § 15-7-7, the court in which the action is pending may order such continuance as may be necessary to afford the defendant or his personal representative reasonable opportunity to defend any such action not exceeding ninety days from the date of filing of the action in such court.
Source: SDC 1939, § 33.0809; SL 1957, ch 178; SL 1963, ch 226.
15-7-9. Aircraft operation in state as appointment of agent to receive process--Agreement as to force of process served on agent.
The use and operation of an aircraft in the State of South Dakota by a nonresident or his agent or by a resident owner or his agent who has remained without the state continuously for thirty days prior to the commencement of an action against him, shall be deemed an appointment by such nonresident of the secretary of transportation to be his true and lawful attorney upon whom may be served all legal process in any action or proceeding against him growing out of such use or operation of an aircraft in the State of South Dakota resulting in damages or loss to person or property, and said use or operation shall be signification of his agreement that any such process in any action against him which is so served shall be of the same legal force and validity as if served upon him personally.
Source: SDC 1939, § 2.9905 as enacted by SL 1949, ch 8, § 3; SDC Supp 1960, § 2.0116.
15-7-10. Service on secretary of transportation for nonresident or absent aircraft operator--Fee--Forwarding to defendant--Service without the state--Time for appearance by defendant--Record of process served.
Service of process as authorized by § 15-7-9 shall be made by serving a copy thereof upon the secretary of transportation or by filing a copy in his office, together with the payment of a fee of two dollars and shall be completed by the plaintiff, his agent, or attorney within ten days after such filing, forwarding to the defendant by registered or certified mail at the defendant's last known post office address, notice of such service and a copy of the process. In lieu of such mailing, such process may be served upon the defendant personally without the state at any time within thirty days after such filing of such process. The time within which the defendant may appear shall not commence to run until such mailing or such personal service without the state. The secretary of transportation shall keep a record of all such process so served, such record to show the day and hour of such service. The fee of two dollars paid by the plaintiff to such director shall be taxed in his costs if he prevails.
Source: SDC 1939, § 2.9905 as enacted by SL 1949, ch 8, § 3; SDC Supp 1960, § 2.0116.
15-7-11. Proof of service on nonresident or absent aircraft operator.
Proof of the service as provided by § 15-7-10 must be attached to the original process. If the service is completed by mailing, such proof must include showing by affidavit that the address to which the copies were mailed was in fact the last known post office address of the defendant which the plaintiff could, with reasonable diligence, ascertain and must include also the registry or certified receipt issued by the postal authorities.
Source: SDC 1939, § 2.9905 as enacted by SL 1949, ch 8, § 3; SDC Supp 1960, § 2.0116.
15-7-12. Continuance of action to permit defense by nonresident or absent aircraft operator.
When process is served pursuant to § 15-7-10, the court in which the action is pending may order such continuances as may be necessary to afford the defendant reasonable opportunity to defend any such action, not exceeding ninety days from the date of the filing of such action in such court.
Source: SDC 1939, § 2.9905 as enacted by SL 1949, ch 8, § 3; SDC Supp 1960, § 2.0116.
15-7-13. Hunting in state by nonresident as appointment of agent to receive process--Agreement as to force of process served.
The hunting of game birds or animals in this state by a nonresident shall be deemed an appointment by such nonresident of the secretary of state of South Dakota to be his true and lawful attorney upon whom may be served legal process in any action or proceeding against such nonresident or his personal representative growing out of such hunting which results in damages or loss to person or property, and said hunting shall be a signification of such nonresident's agreement that any such process in any action against him or his personal representative which is so served shall be of the same legal force and validity as if served upon him, or his personal representative, personally.
Source: SL 1961, ch 125.
15-7-14. Service of process on secretary of state for nonresident hunter--Fee--Mailing to defendant--Personal service outside state--Time for appearance by defendant--Record of process served.
The service of process as authorized by § 15-7-13 shall be made by filing in the Office of the Secretary of State a copy of the process and payment to the secretary of state a fee of ten dollars and shall be completed by the plaintiff, or the plaintiff's agent or attorney within ten days after the filing, forwarding to the defendant, or the defendant's personal representative, by registered or certified mail at the defendant's last known post office address, or the last known post office address of defendant's personal representative, notice of such service and a copy of the process. In lieu of such mailing the process may be served upon the defendant or the defendant's personal representative personally without the state at any time within thirty days after the filing of the process. The time within which the defendant or the defendant's personal representative may appear does not commence to run until the mailing or the personal service without the state. The secretary of state shall keep a record of any process so served, the record to show the day and hour of the service. The fee of ten dollars paid by the plaintiff to the secretary of state shall be recovered as taxable costs if the plaintiff prevails.
Source: SL 1961, ch 125; SL 2003, ch 8, § 5.
15-7-15. Proof of service on nonresident hunter.
Proof of the service as provided by § 15-7-14 must be attached to the original process. If the service is completed by mailing, such proof must include a showing by affidavit that the address to which the copies were mailed was in fact the last known post office address of the defendant, or his personal representative, which the plaintiff could, with reasonable diligence, ascertain and must also include the receipt issued by the postal authorities.
Source: SL 1961, ch 125.
15-7-16. Continuance of action to permit defense by nonresident hunter.
When process is served pursuant to § 15-7-14, the court in which the action is pending may order such continuances as may be necessary to afford the defendant or his personal representative reasonable opportunity to defend any such action, not exceeding ninety days from the date of the filing of such action in such court.
Source: SL 1961, ch 125.
15-7-17. Consent to jurisdiction by persons selling property or services to residents--Service.
Any person selling property or services to residents of this state, where the property is delivered to this state or the beneficial use of the service occurs in this state, is considered to have consented to the jurisdiction of the courts of this state for the exclusive purpose of enforcing § 10-46-18.3. Service of process upon persons subject to this section may be made by service outside this state in the same manner provided for service within this state with the same force and effect as though service had been made within this state.
Source: SL 1987, ch 109, § 2.
15-8-1
Remedies available where some but not all defendants served.
15-8-2
Proceeding against defendant served in action on joint contract debt--Judgment entered
against all defendants--Enforcement of judgment.
15-8-3
Enforcement of unsatisfied judgment against partner not named in original action--Restriction to one satisfaction.
15-8-4
Summons to enforce judgment against joint contract debtors not summoned in original
action.
15-8-5
Contents and service of summons to enforce judgment against joint contract debtor.
15-8-6
New complaint not required to enforce judgment against joint contract debtor--Affidavit
of nonsatisfaction.
15-8-7
Defenses available to joint contract debtor summoned for enforcement of judgment.
15-8-8
Reply and trial of issues on summons to enforce judgment against joint contract debtor.
15-8-9
Rules applicable to pleadings in summons to enforce judgment against joint contract
debtor.
15-8-10
Supplementary judgment on summons of joint contract debtor--Enforcement of judgment.
15-8-11
Joint tort-feasors--Definition of term.
15-8-12
Right of contribution among joint tort-feasors.
15-8-13
Discharge of liability or payment of excess required for judgment for contribution to joint
tort-feasor.
15-8-14
Joint tort-feasor not entitled to contribution to settlement unless liability extinguished.
15-8-15
Degrees of fault of joint tort-feasors considered in determining liability.
15-8-15.1
Liability of party allocated less than fifty percent of total fault.
15-8-15.2
Determination of percentages of fault by trier of fact--Treatment of several persons as
single party.
15-8-16
Joint tort-feasor not discharged by judgment against another.
15-8-17
Joint tort-feasor not discharged by release of another--Claim reduced by amount stated
in release.
15-8-18
Restrictions on discharge from contribution obligation by release given by injured party.
15-8-19
Indemnity rights not impaired by joint tort-feasor provisions.
15-8-20
Severability of joint tort-feasor provisions.
15-8-21
Repealed.
15-8-22
Citation of uniform tort-feasor provisions.
15-8-1. Remedies available where some but not all defendants served.
Where an action is against two or more defendants, and the summons is served on one or more but not on all of them, the plaintiff may proceed as provided by §§ 15-8-2 and 15-8-3.
Source: SDC 1939 & Supp 1960, § 33.0818.
15-8-2. Proceeding against defendant served in action on joint contract debt--Judgment entered against all defendants--Enforcement of judgment.
If an action be against defendants jointly indebted upon contract, the plaintiff may proceed against the defendant served unless the court otherwise direct; and if he recover judgment, it may be entered against all the defendants thus jointly indebted so far only as that it may be enforced against the joint property of all, and the separate property of the defendants served and if they are subject to arrest, against the persons of the defendants served.
Source: SDC 1939 & Supp 1960, § 33.0818 (1).
15-8-3. Enforcement of unsatisfied judgment against partner not named in original action--Restriction to one satisfaction.
If the name of one or more partners shall, for any cause, have been omitted in any action in which judgment shall have been taken against the defendants named in the summons and such omission shall not have been pleaded in such action, the plaintiff, in case the judgment therein shall remain unsatisfied, may by action recover of such partner separately upon proving his joint liability, notwithstanding he may not have been named in the original action; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action.
Source: SDC 1939 & Supp 1960, § 33.0818 (4).
15-8-4. Summons to enforce judgment against joint contract debtors not summoned in original action.
When a judgment shall be recovered against one or more of several persons jointly indebted upon a contract, by proceeding as provided in §§ 15-8-1 to 15-8-3, inclusive, those who were not originally summoned to answer the complaint, and did not appear in the action, may be summoned to show cause why they should not be bound by the judgment, in the same manner as if they had been originally summoned.
Source: SDC 1939 & Supp 1960, § 33.2301.
15-8-5. Contents and service of summons to enforce judgment against joint contract debtor.
The summons provided in § 15-8-4 must be subscribed by the judgment creditor or his attorney; must describe the judgment and require the person summoned to show cause within thirty days after the service of the summons; and must be served in like manner as the original summons.
Source: SDC 1939 & Supp 1960, § 33.2302.
15-8-6. New complaint not required to enforce judgment against joint contract debtor--Affidavit of nonsatisfaction.
It is not necessary to file a new complaint in a proceeding authorized by § 15-8-4, but the summons must be accompanied by an affidavit of the person subscribing it that the judgment has not been satisfied, to his knowledge or information and belief, and must specify the amount due thereon.
Source: SDC 1939 & Supp 1960, § 33.2302.
15-8-7. Defenses available to joint contract debtor summoned for enforcement of judgment.
The party summoned pursuant to § 15-8-4 may answer within the time specified in § 15-8-5, denying the judgment or setting up any defense which may have arisen subsequently; and he may make the same defense which he might have originally made to the action, except the statute of limitations.
Source: SDC 1939 & Supp 1960, § 33.2303.
15-8-8. Reply and trial of issues on summons to enforce judgment against joint contract debtor.
The party issuing summons pursuant to § 15-8-4 may reply to the answer, and the issues may be tried and judgment may be given in the same manner as in an action.
Source: SDC 1939 & Supp 1960, § 33.2304.
15-8-9. Rules applicable to pleadings in summons to enforce judgment against joint contract debtor.
The answer and the reply described by §§ 15-8-7 and 15-8-8 must be verified in like cases and manner, and be subject to the same rules as the answer and reply in an action.
Source: SDC 1939 & Supp 1960, § 33.2304.
15-8-10. Supplementary judgment on summons of joint contract debtor--Enforcement of judgment.
A supplementary judgment rendered under the provisions of §§ 15-8-4 to 15-8-9, inclusive, may be docketed and transcribed the same as any other judgment and may be enforced by execution or the application of the property which may be subjected to payment of the judgment and may be compelled by attachment, if necessary.
Source: SDC 1939 & Supp 1960, § 33.2305.
15-8-11. Joint tort-feasors--Definition of term.
For the purposes of §§ 15-8-12 to 15-8-22, inclusive, the term "joint tort-feasors" means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.
Source: SL 1945, ch 167, § 1; SDC Supp 1960, § 33.04A02.
15-8-12. Right of contribution among joint tort-feasors.
The right of contribution exists among joint tort-feasors.
Source: SL 1945, ch 167, § 2; SDC Supp 1960, § 33.04A03 (1).
15-8-13. Discharge of liability or payment of excess required for judgment for contribution to joint tort-feasor.
A joint tort-feasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.
Source: SL 1945, ch 167, § 2; SDC Supp 1960, § 33.04A03 (2).
15-8-14. Joint tort-feasor not entitled to contribution to settlement unless liability extinguished.
A joint tort-feasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tort-feasor whose liability to the injured person is not extinguished by the settlement.
Source: SL 1945, ch 167, § 2; SDC Supp 1960, § 33.04A03 (3).
15-8-15. Degrees of fault of joint tort-feasors considered in determining liability.
When there is such a disproportion of fault among joint tort-feasors as to render inequitable an equal distribution among them of the common liability by contribution, the relative degrees of fault of the joint tort-feasors shall be considered in determining their pro rata shares.
Source: SL 1945, ch 167, § 2; SDC Supp 1960, § 33.04A03 (4).
15-8-15.1. Liability of party allocated less than fifty percent of total fault.
If the court enters judgment against any party liable on the basis of joint and several liability, any party who is allocated less than fifty percent of the total fault allocated to all the parties may not be jointly liable for more than twice the percentage of fault allocated to that party.
Source: SL 1987, ch 154, § 1.
15-8-15.2. Determination of percentages of fault by trier of fact--Treatment of several persons as single party.
In determining the percentages of fault, the trier of fact shall consider both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claimed. The trier of fact may determine that two or more persons are to be treated as a single party if their conduct was a proximate cause of the damages claimed and if the acts or omissions of such persons are so interrelated that it would be inequitable to distinguish between them.
Source: SL 1987, ch 154, § 2.
15-8-16. Joint tort-feasor not discharged by judgment against another.
The recovery of a judgment by the injured person against one joint tort-feasor does not discharge the other joint tort-feasors.
Source: SL 1945, ch 167, § 3; SDC Supp 1960, § 33.04A04.
15-8-17. Joint tort-feasor not discharged by release of another--Claim reduced by amount stated in release.
A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides; but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.
Source: SL 1945, ch 167, § 4; SDC Supp 1960, § 33.04A05.
15-8-18. Restrictions on discharge from contribution obligation by release given by injured party.
A release by the injured person of one joint tort-feasor does not relieve him from liability to make contribution to another joint tort-feasor unless the release is given before the right of the other tort-feasor to secure a money judgment for contribution has accrued, and provides for a reduction, to the extent of the pro rata share of the released tort-feasor, of the injured person's damages recoverable against all the other tort-feasors.
Source: SL 1945, ch 167, § 5; SDC Supp 1960, § 33.04A06.
15-8-19. Indemnity rights not impaired by joint tort-feasor provisions.
Sections 15-8-11 to 15-8-22, inclusive, do not impair any right of indemnity under existing law.
Source: SL 1945, ch 167, § 6; SDC Supp 1960, § 33.04A07.
15-8-20. Severability of joint tort-feasor provisions.
If any provision of §§ 15-8-11 to 15-8-22, inclusive, or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of said sections which can be given effect without the invalid provision or application, and to this end the provisions of said sections are declared to be severable.
Source: SL 1945, ch 167, § 8; SDC Supp 1960, § 33.04A09.
15-8-22. Citation of uniform tort-feasor provisions.
Sections 15-8-11 to 15-8-22, inclusive, may be cited as the uniform contribution among tort-feasors law.
Source: SL 1945, ch 167, § 10; SDC Supp 1960, § 33.04A01.
15-9-1
Security for costs required of nonresident plaintiff.
15-9-2
Resident required as surety--Corporate bond--Deposit of cash.
15-9-3
Form and extent of surety's obligation for costs.
15-9-4
Dismissal of action for failure to give security for costs.
15-9-5
Motion for additional security for costs--Dismissal on failure to give additional
security.
15-9-6
Endorsement of summons when no personal claim made against defendant--Costs not
taxed--Plaintiff's liability for costs on failure to serve notice.
15-9-7
Service by publication when defendant not found in state.
15-9-8
Service by publication in actions for divorce, annulment, child custody, and paternity.
15-9-8.1
Service by publication in adoption proceedings.
15-9-9
Service by publication in actions involving property within state.
15-9-10
Service by publication in lien foreclosure actions.
15-9-11
Service by publication on domestic corporation without known place of business or
agent.
15-9-12
Service by publication on foreign corporation with property in jurisdiction of court.
15-9-13
Service by publication on absconding resident defendant.
15-9-14
Service by publication on nonresident with property in jurisdiction of court.
15-9-15
Service by publication on unknown parties.
15-9-16
Search within state not required for service of publication on nonresident.
15-9-17
Newspaper in which service by publication made--Number of publications.
15-9-18
Filing of complaint stated in publication of summons--Publication of complaint not
required.
15-9-19
Mailing of summons and complaint to defendant served by publication.
15-9-20
Personal service without state in lieu of service by publication--Admission of service.
15-9-21
Time of completion of service by publication or personal service in lieu of
publication--Commencement of time for filing answer.
15-9-22
Time allowed for defense after service by publication--Time after judgment--Restitution on successful defense.
15-9-23
Action by assignee subject to setoff or defense--Negotiable instruments excepted.
15-9-1. Security for costs required of nonresident plaintiff.
In cases in which the plaintiff is a nonresident of the state or a foreign corporation or a foreign limited liability company at the time of commencing the action or if the plaintiff removes from the state after its commencement, the plaintiff shall furnish sufficient security for costs.
Source: SDC 1939 & Supp 1960, § 33.1820; SL 1994, ch 351, § 36.
15-9-2. Resident required as surety--Corporate bond--Deposit of cash.
The surety required by § 15-9-1 must be a resident of the county where the action is brought and must be approved by the clerk. A sufficient corporate surety bond or deposit of cash accepted by the clerk shall also be sufficient surety.
Source: SDC 1939 & Supp 1960, § 33.1820.
15-9-3. Form and extent of surety's obligation for costs.
The obligation of the surety required by § 15-9-1 shall be complete by endorsing the summons or complaint to the effect that he is surety for costs of the action and signing his name thereto or by the filing of surety bond or deposit of costs by the party.
The surety shall be bound for the payment of all costs and disbursements which may be adjudged against the plaintiff in the court in which the action is brought or in any other to which it may be carried, not exceeding in all two hundred fifty dollars, whether the plaintiff obtain judgment or not.
Source: SDC 1939 & Supp 1960, § 33.1820.
15-9-4. Dismissal of action for failure to give security for costs.
An action in which security for costs is required by § 15-9-1, and has not been given, shall be dismissed on a motion and notice by the defendant at any time before judgment unless in a reasonable time to be allowed by the court such security for costs be given in an amount to be designated by the court.
Source: SDC 1939 & Supp 1960, § 33.1820.
15-9-5. Motion for additional security for costs--Dismissal on failure to give additional security.
In an action in which security for costs has been given the defendant may at any time before judgment after reasonable notice to the plaintiff move the court for additional security on the part of the plaintiff and if on such motion the court be satisfied that the surety has removed from this state or is not sufficient, or the amount of bond is insufficient, the action may be dismissed unless within a reasonable time to be fixed by the court sufficient surety be given by the plaintiff in an amount designated by the court.
Source: SDC 1939 & Supp 1960, § 33.1821.
15-9-6. Endorsement of summons when no personal claim made against defendant--Costs not taxed--Plaintiff's liability for costs on failure to serve notice.
If no personal judgment is asked against a defendant, the plaintiff or his attorney, over his signature, shall endorse upon the summons or attach thereto and serve or publish therewith a notice generally stating the object of the action briefly describing any property affected thereby and stating that no personal claim is made against such defendant. No costs shall be taxed or money judgment taken against such defendant unless he defends the action. Failure to serve such notice shall render the plaintiff liable for costs to an answering defendant entitled to such notice.
Source: SDC 1939 & Supp 1960, § 33.0804.
15-9-7. Service by publication when defendant not found in state.
A summons, writ, order, or decree may be served by publication under the conditions and in the manner provided hereinafter and in §§ 15-9-8 to 15-9-21, inclusive.
Where the person on whom the service of the summons, writ, order, or decree is to be made cannot, after due diligence, be found within the state and that fact appears by affidavit to the satisfaction of the court or a judge thereof, and it in like manner appears that a cause of action exists against the defendant in respect to whom the service is to be made or that he is a proper party to an action relating to real or personal property in this state, or to the writ, order, or decree, such court or judge may grant an order that the service be made by publication of the summons in any of the cases described in §§ 15-9-8 to 15-9-15, inclusive.
Source: SDC 1939 & Supp 1960, § 33.0812.
15-9-8. Service by publication in actions for divorce, annulment, child custody, and paternity.
The court may grant an order pursuant to § 15-9-7 in an action for divorce, a decree annulling a marriage, a child custody action, or an action to establish paternity.
Source: SDC 1939 & Supp 1960, § 33.0812 (6); SL 2017, ch 90, § 1.
15-9-8.1. Service by publication in adoption proceedings.
The court or a judge thereof may grant an order pursuant to § 15-9-7 where the action is for adoption.
Source: SL 1969, ch 152.
15-9-9. Service by publication in actions involving property within state.
The court or a judge thereof may grant an order pursuant to § 15-9-7 where the subject of the action is property in this state and the defendant has or claims a lien or interest, actual or contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest in or lien thereon.
Source: SDC 1939 & Supp 1960, § 33.0812 (5).
15-9-10. Service by publication in lien foreclosure actions.
The court or a judge thereof may grant an order pursuant to § 15-9-7 where the action is for the foreclosure of a lien on real or personal property in this state.
Source: SDC 1939 & Supp 1960, § 33.0812 (4).
15-9-11. Service by publication on domestic corporation without known place of business or agent.
The court or a judge thereof may grant an order pursuant to § 15-9-7 where the defendant is a private corporation created by the laws of this state or of the territory of Dakota, which has no known office or place of business in this state and no known officer or agent resident in this state.
Source: SDC 1939 & Supp 1960, § 33.0812 (7).
15-9-12. Service by publication on foreign corporation with property in jurisdiction of court.
The court or a judge thereof may grant an order pursuant to § 15-9-7 where the defendant is a foreign corporation and the cause of action arose in this state, or where such defendant has property within this state and the court has jurisdiction over the subject of the action, and where by attachment, garnishment, or other process, the plaintiff has brought such property under jurisdiction of the court.
Source: SDC 1939 & Supp 1960, § 33.0812 (1).
15-9-13. Service by publication on absconding resident defendant.
The court or a judge thereof may grant an order pursuant to § 15-9-7 where the defendant, being a resident of this state, has departed therefrom with intent to defraud his creditors or to avoid the service of a summons or keeps himself concealed therein with like intent.
Source: SDC 1939 & Supp 1960, § 33.0812 (2).
15-9-14. Service by publication on nonresident with property in jurisdiction of court.
The court or a judge thereof may grant an order pursuant to § 15-9-7 where the defendant is not a resident of this state but has property therein, and the court has jurisdiction of the subject of the action; and where by attachment, garnishment, or other process the plaintiff has brought such property under jurisdiction of the court.
Source: SDC 1939 & Supp 1960, § 33.0812 (3).
15-9-15. Service by publication on unknown parties.
When it is made to appear by affidavit, made by or on behalf of the plaintiff, that there is reason to believe that there may be unknown persons, whether personal representatives, devisees, legatees, heirs, or creditors, of any person having an interest in the subject matter of the suit, or any other unknown person having claim of any character which might be adversely affected by the judgment to be rendered in the suit, the court may grant an order for the service of the summons upon such unknown persons by publication.
Source: Supreme Court Rule adopted May 22, 1943; SDC Supp 1960, § 33.0812 (8).
15-9-16. Search within state not required for service of publication on nonresident.
If it be made to appear by affidavit to the satisfaction of the court, and the court shall find, that the place of residence of the person to be served is at a certain specified place without this state, and his post office address, whether within or without this state, be likewise shown and established, it shall not be necessary to show nor for the court to find, that such persons cannot after due diligence be found and served personally within this state.
Source: SDC 1939, § 33.0813 as added by SL 1947, ch 154.
15-9-17. Newspaper in which service by publication made--Number of publications.
In all actions affecting real property the order for service by publication of summons must direct the publication to be made in a newspaper printed in the county where the premises or some part thereof are situated, if a paper be published therein, and if none, then in the paper published in this state nearest to the county seat of such county. Except in actions affecting real property, the order must direct the publication to be made in some newspaper in the county where the action is pending to be designated as most likely to give notice to the person to be served and for such length of time as may be deemed reasonable, not less than once a week for four successive weeks.
Source: SDC 1939, § 33.0813; SL 1947, ch 154.
15-9-18. Filing of complaint stated in publication of summons--Publication of complaint not required.
In all cases where the summons is served by publication, the complaint must be filed and the summons as published must state the date and place of such filing. The complaint need not be published.
Source: SDC 1939, § 33.0813; SL 1947, ch 154.
15-9-19. Mailing of summons and complaint to defendant served by publication.
The court or judge must also direct a copy of the summons and complaint to be forthwith sent by first class mail, directed to the person to be served at his post office address unless it appears that the place of residence and post office address of such person is neither known to the party making the application nor can with reasonable diligence be ascertained by him; and also directed to any corporation to be served at its present or last known office or place of business.
Source: SDC 1939, § 33.0813; SL 1947, ch 154.
15-9-20. Personal service without state in lieu of service by publication--Admission of service.
In any of the cases where service of summons, writ, order, or decree by publication is authorized in lieu thereof the same may and without any order of the court at the option of the party making service, be personally served upon any defendant in person without the state, or any such defendant may admit such service, and as to a defendant so served, no publication or other proceedings relating thereto shall be necessary.
Source: SDC 1939 & Supp 1960, § 33.0814.
15-9-21. Time of completion of service by publication or personal service in lieu of publication--Commencement of time for filing answer.
The service of summons, writ, order, or decree by publication shall be deemed complete upon the last publication thereof ordered by the court. The time in which answer shall be required by the writ, order, or decree become effective, shall commence to run the day next following such last publication. In case personal service shall be made upon any defendant as to whom the publication has been ordered, service shall be complete on the date of making such personal service.
Source: SDC 1939, § 33.0813; SL 1947, ch 154.
15-9-22. Time allowed for defense after service by publication--Time after judgment--Restitution on successful defense.
The defendant against whom publication is ordered or his representatives on application and sufficient cause shown at any time before judgment must be allowed to defend the action; and, except in an action for divorce, the defendant against whom publication is ordered or his representatives may, in like manner, upon good cause shown be allowed to defend after judgment or at any time within one year after notice thereof and within seven years after its rendition on such terms as may be just; and if the defense be successful and the judgment or any part thereof has been collected or otherwise enforced, such restitution may thereupon be compelled as the court directs; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected.
Source: SDC 1939 & Supp 1960, § 33.0815.
15-9-23. Action by assignee subject to setoff or defense--Negotiable instruments excepted.
In case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any setoff or other defense existing at the time of, or before notice of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith and upon good consideration before due.
Source: SDC 1939 & Supp 1960, § 33.0404.
15-10-1
Notice of action affecting real property filed with register of deeds--Contents of notice--Foreclosure actions governed by specific statutes.
15-10-2
Action pending from time of notice--Time allowed for service of summons.
15-10-3
Constructive notice from filing of notice--Subsequent purchasers and encumbrancers
bound.
15-10-4
Discharge of notice of pendency of action--Contents, acknowledgment and recording.
15-10-5
Repealed.
15-10-6
Expungement of notice of pendency upon motion therefor--Showing necessary to defeat
motion.
15-10-7
Expungement of notice of pendency upon motion therefor--Undertaking.
15-10-8
Expungement of notice of pendency--Notice of motion--Proof considered.
15-10-9
Expungement of notice of pendency--Effect.
15-10-10
Expungement of notice of pendency--Costs on grant or denial of motion.
15-10-11
Expungement provisions, liability unaffected by.
15-10-1. Notice of action affecting real property filed with register of deeds--Contents of notice--Foreclosure actions governed by specific statutes.
In an action affecting the title to real property, the plaintiff, at the time of filing the complaint or at any time afterwards, or the defendant, when he sets up an affirmative cause of action in his answer and demands substantive relief, at the time of filing his answer or at any time afterwards, if the same be intended to affect real property, may file for record with the register of deeds of each county in which the real property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and the description of the real property in that county affected thereby; but if the action be for the foreclosure of a mortgage, or the enforcement of a mechanic's or miner's lien, no such notice need be filed, except as may be specifically provided by the statutes relating thereto.
Source: SDC 1939 & Supp 1960, § 33.0805.
15-10-2. Action pending from time of notice--Time allowed for service of summons.
For the purpose of this chapter an action shall be deemed to be pending from the time of filing the notice referred to in § 15-10-1; provided that such notice shall be of no avail unless it shall be followed by the first publication of the summons, or by the personal service thereof, on a defendant within sixty days after such filing.
Source: SDC 1939 & Supp 1960, § 33.0805.
15-10-3. Constructive notice from filing of notice--Subsequent purchasers and encumbrancers bound.
From the time of filing only shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected thereby. Every person whose conveyance or encumbrance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser or encumbrancer and shall be bound by all proceedings taken after the filing of such notice, to the same extent as if he were a party to the action.
Source: SDC 1939 & Supp 1960, § 33.0805.
15-10-4. Discharge of notice of pendency of action--Contents, acknowledgment and recording.
Whenever notice of the pendency of any action has been filed or recorded in the office of the register of deeds in any county, the party plaintiff or defendant filing the same or at whose instance the same was filed, or his attorney or attorneys, in whose name or names the notice is subscribed, may discharge the same of record by filing with the register of deeds in whose office the notice is filed, a certificate of the discharge of said notice, executed and acknowledged by the same persons as above provided for certificates of discharge thereof. Such certificates of discharge, when filed with the register of deeds shall be acknowledged in the same form as is provided by law for the acknowledgment of conveyances of real estate and may be recorded in like manner.
Source: SDC 1939 & Supp 1960, § 33.0805.
15-10-6. Expungement of notice of pendency upon motion therefor--Showing necessary to defeat motion.
Any time after the notice of pendency of an action has been filed for record pursuant to § 15-10-1 or other law, the court in which the action is pending shall, upon motion of a party to the action supported by affidavit, order that the notice be expunged unless the party who filed the notice of pendency of the action shows by a preponderance of the evidence, that:
(1) The action does affect the title to the real property described in the notice; and
(2) The party recording the notice has commenced or prosecuted the action for a proper purpose and in good faith.
Source: SL 1980, ch 162, § 2.
15-10-7. Expungement of notice of pendency upon motion therefor--Undertaking.
Any time after the notice of pendency of an action has been filed for record pursuant to § 15-10-1 or other law, the court in which the action is pending may, upon motion of a party to the action supported by affidavit, order that the notice be expunged if the moving party gives an undertaking, in such amount and within such time as is fixed by the court after notice and hearing. The undertaking shall require the moving party to indemnify the party who recorded the notice for all damages which he may incur:
(1) If the notice is expunged and the moving party does not prevail; and
(2) If the court finds that adequate relief can be secured to the party recording the notice by the giving of the undertaking.
Source: SL 1980, ch 162, § 3.
15-10-8. Expungement of notice of pendency--Notice of motion--Proof considered.
A notice of motion to expunge shall be served not less than ten days prior to the hearing. The court shall determine the matter on the affidavits and counter-affidavits on file and upon such other proof as it may permit.
Source: SL 1980, ch 162, § 4.
15-10-9. Expungement of notice of pendency--Effect.
When a certified copy of an order expunging a notice of pendency of an action is filed for record in the office of the register of deeds in which the notice of the pendency was recorded, neither the notice of the pendency of the action nor any information derived therefrom, prior to the recording of the order, constitutes constructive or actual notice of any of the matters contained therein, or of any of the matters relating to such action, or creates any duty of inquiry in any person dealing with the property described therein.
Source: SL 1980, ch 162, § 5.
15-10-10. Expungement of notice of pendency--Costs on grant or denial of motion.
An order made pursuant to § 15-10-6 or 15-10-7 granting or denying a motion to expunge a notice of pendency of action, may direct that the prevailing party be awarded reasonable attorneys' fees and costs.
Source: SL 1980, ch 162, § 6.
15-10-11. Expungement provisions, liability unaffected by.
Nothing in §§ 15-10-6 to 15-10-10, inclusive, affects or limits the liability of a person recording a notice of pendency of action for damages proximately caused thereby.
Source: SL 1980, ch 162, § 7.
15-11-1
Trial calendar.
15-11-2
Repealed.
15-11-3
Designation of days for trial of issues of law.
15-11-4
Postponement of trial or hearing.
15-11-5
Postponement during legislative session when legislator is party or attorney--Notice of
intention to apply.
15-11-6
Time for application for continuance--Written motion and affidavit required--Hearing.
15-11-7
Affidavit to support continuance on absence of witness--Contents.
15-11-8
Counteraffidavits on application for continuance.
15-11-9
Admission of testimony to avoid continuance--Reading of testimony.
15-11-10
Terms imposed on continuance or postponement.
15-11-10.1
Continuance by stipulation of all parties.
15-11-11
Dismissal for want of prosecution.
15-11-1. Trial calendar.
The clerk of courts shall keep a trial calendar under the direction of the presiding judge of the circuit.
Source: SDC 1939 & Supp 1960, § 33.1112; Supreme Court Rule 80-13.
15-11-3. Designation of days for trial of issues of law.
The court will from time to time designate days upon which issues of law will be tried.
Source: SDC 1939 & Supp 1960, § 33.1112; Supreme Court Rule 80-15.
15-11-4. Postponement of trial or hearing.
When an action or proceeding is called for trial or hearing, or at any time previous thereto, the court or judge may, upon good cause shown, direct the trial or hearing to be postponed to another day of the same or next term, or to such time as shall be just in view of all the circumstances.
Source: SDC 1939 & Supp 1960, § 33.1114.
15-11-5. Postponement during legislative session when legislator is party or attorney--Notice of intention to apply.
Whenever any action or proceeding, including a contested small claims action other than for attachment, garnishment, arrest and bail, claim and delivery, injunction, receivership, and deposit in court, to which any member of the Legislature is a party or in which any member of the Legislature is the attorney in charge for either party, comes on for trial or hearing during a session of the Legislature, the attendance of the party or attorney upon the session is cause for the postponement of the trial or hearing until after the conclusion of the session, provided the party or attorney serves notice, on the opposite party, of his intention to apply for the postponement at least fifteen days before the term or time at which the action or proceeding may be brought on for trial or hearing or as soon as notice of hearing is received if less than fifteen days prior to the date set for hearing.
Source: SDC 1939 & Supp 1960, § 33.1115; SL 1989, ch 176.
15-11-6. Time for application for continuance--Written motion and affidavit required--Hearing.
All applications for continuance must be made, by motion, not less than ten calendar days prior to the day set for commencement of the trial, unless the cause for continuance shall have arisen or come to the knowledge of the party subsequent to that time, in which case the motion shall be made as soon as practicable. All such motions shall be in writing and accompanied by affidavits in support of the motion, which affidavits shall set forth with particularity the grounds and cause for such motion as well as the efforts of the party or the party's attorney to avoid such delay. Upon receipt of such a motion, the court shall schedule a hearing, which may be by telephone conference, and shall decide the motion without delay in order to avoid trial delay awaiting such decision. The adverse party may be heard by affidavits or by argument presented, filed, and served at the time of the hearing.
Source: SDC 1939 & Supp 1960, § 33.1116; Supreme Court Rule 80-15; Supreme Court Rule 85-6.
15-11-7. Affidavit to support continuance on absence of witness--Contents.
An application for continuance on account of the absence of a witness must be supported by the affidavit of the party, his agent, or attorney, stating:
(1) The name and residence of such witness, or if unknown, the efforts made to ascertain the same;
(2) The testimony such witness would give if present, in narrative form or by questions and answers as in a deposition; that the affiant believes such testimony to be true and knows of no other person by whom the same facts may be proven, or if he knows of such other person, then the reasons why the testimony of such witness is necessary;
(3) The reason why the deposition of the witness was not taken;
(4) What efforts have been made to obtain the attendance of the witness or his testimony;
(5) Facts showing ground for belief that the attendance or deposition of such witness may be procured at the next term of the court.
Source: SDC 1939 & Supp 1960, § 33.1117.
15-11-8. Counteraffidavits on application for continuance.
No counteraffidavits shall be allowed upon an application for a continuance, except those offered to show want of diligence or that the application is not made in good faith.
Source: SDC 1939 & Supp 1960, § 33.1117.
15-11-9. Admission of testimony to avoid continuance--Reading of testimony.
Unless, in the opinion of the court, justice shall require it, the trial will not be continued or postponed on account of the absence of a witness, if the adverse party will admit that the witness, if present, would testify as stated in the affidavit; but in such case the applicant may read the testimony of such witness as stated in his affidavit, subject to all proper objections which might be interposed if the witness were present.
Source: SDC 1939 & Supp 1960, § 33.1118.
15-11-10. Terms imposed on continuance or postponement.
Every continuance or postponement granted upon application shall be upon such terms as the court may impose.
Source: SDC 1939 & Supp 1960, § 33.1117.
15-11-10.1. Continuance by stipulation of all parties.
After a certificate of readiness has been filed in a civil matter, all of the parties to the action may stipulate in writing for a continuance. After the stipulation has expired, the court shall notify the parties and set the matter for trial.
Source: SL 1984, ch 145.
15-11-11. Dismissal for want of prosecution.
The court may dismiss any civil case for want of prosecution upon written notice to counsel of record where the record reflects that there has been no activity for one year, unless good cause is shown to the contrary. The term "record," for purposes of establishing good cause, shall include, but not by way of limitation, settlement negotiations between the parties or their counsel, formal or informal discovery proceedings, the exchange of any pleadings, and written evidence of agreements between the parties or counsel which justifiably result in delays in prosecution.
Source: Supreme Court Rule 80-11; Supreme Court Rule 82-13; SL 1998, ch 311.
CHAPTER 15-12
CHANGE OF CIRCUIT JUDGE OR MAGISTRATE
15-12-1 15-12-1 to 15-12-18. Superseded
15-12-19 Settlement of record after resignation or expiration of term of judge.
15-12-20 Definition of terms.
15-12-21 Actions in which affidavits for change of judge may be filed.
15-12-21.1 Informal request for disqualification.
15-12-22 Who may file affidavit--Effect of filing.
15-12-23 Parties united in interest--Necessity of unity--Effect of one party filing.
15-12-24 Waiver of right by submitting to jurisdiction.
15-12-25 Restriction to one change--Other parties' rights preserved.
15-12-26 Form and content of affidavits.
15-12-27 Time for filing affidavit against judge or magistrate presiding in ordinary course.
15-12-28 Time for filing after unanticipated change of judge or magistrate.
15-12-29 Late appointment or employment of counsel--Extending time for filing.
15-12-30 Filing of affidavit-Copies.
15-12-31 Copies of affidavit served on adverse parties--Liability for failure to serve.
15-12-32 Review of affidavit--Designation of substitute judge or magistrate.
15-12-33 Transmittal of copies of order to substitute judge or magistrate and counsel.
15-12-34 Disqualification of all judges in circuit--Certification to Supreme Court.
15-12-35 Assignment of substitute judge by Chief Justice.
15-12-36 Jurisdiction of substituted judge or magistrate.
15-12-37 Disqualification on court's own motion.
15-12-19. Settlement of record after resignation or expiration of term of judge.
The judge who presided at a trial may, after he ceases to be such judge by reason of his resignation or the expiration of his term of office, settle the record of such trial. If, before the settled record is completed, such judge is removed from office, or for any reason cannot or will not settle such record, it shall be settled in such manner as the presiding judge of the Supreme Court may direct.
Source: SDC 1939 & Supp 1960, § 33.1203.
15-12-20. Definition of terms.
Terms, as used in §§ 15-12-20 to 15-12-37, inclusive, unless the context otherwise requires, mean:
(1) "Action," any action or special proceeding in the trial court, whether civil or criminal or quasi-criminal;
(2) "Canon" or "Canons," the canons set forth in the South Dakota Code of Judicial Conduct appearing as an appendix to chapter 16-2;
(3) "Judge," a judge of the circuit court or a retired justice or judge acting pursuant to appointment by the Chief Justice;
(4) "Magistrate," both magistrate judges and nonlaw-trained magistrates as defined by § 16-12A-1.1; and
(5) "Party," any party within the meaning of the rules of civil or criminal procedure and the statutes of this state.
Source: Supreme Court Rule No. 75-5, § 1; SL 2021, ch 86, § 1.
15-12-21. Actions in which affidavits for change of judge may be filed.
Unless the right is waived or is denied by this chapter, an affidavit for change of a judge or magistrate may be filed in any action pending in the court whether originating therein or pending upon appeal from an inferior court or tribunal to the circuit court. No affidavit for such change may be filed in a criminal action prior to the completion of the preliminary hearing or waiver thereof or in any proceeding for contempt committed in the presence of the court.
Source: SDC 1939 & Supp 1960, § 33.1208; SDCL § 15-12-5; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 2; SL 1980, ch 163, § 1; SL 2009, ch 99, § 1.
15-12-21.1. Informal request for disqualification.
Prior to filing an affidavit for change of judge, the party or his attorney shall informally request the judge or magistrate who, in the ordinary course, would preside at the hearing or trial, to disqualify himself. He shall not be required to state his reasons, but may if he desires. Informally shall mean by letter, oral communication, or dictating it into the record in open court or chambers; however, the opposing parties should receive copies of any letters, or be apprised of any communications to the court, but cannot contest the request. If the judge or magistrate grants the request, he shall forthwith notify the presiding judge, who shall assign the case to some other judge or magistrate. If the judge refuses the request, he shall forthwith notify in writing the parties or their attorneys. Writing may include a letter, order, or dictation into the record.
Source: Supreme Court Rule 82-23.
15-12-22. Who may file affidavit--Effect of filing.
When entitled to do so, any party to an action, or his attorney of record, in any circuit or magistrate court may within the time prescribed by this chapter, file an affidavit as provided by this chapter seeking to disqualify the judge or magistrate who is to preside or is presiding in that action and when properly filed that named judge or magistrate shall proceed no further in said action and shall thereupon be disqualified as to any further acts with reference thereto unless otherwise ordered to proceed by the presiding judge of the circuit involved. However, any order or decree previously signed by such judge or magistrate shall remain in full force and effect, if filed, or becomes effective upon filing, unless thereafter vacated or reversed.
Source: SDC 1939 & Supp 1960, §§ 33.1208, 33.1209; SDCL, §§ 15-12-2, 15-12-11; Supreme Court Rule No. 75-5, § 3.
15-12-23. Parties united in interest--Necessity of unity--Effect of one party filing.
All parties who are united in interest or representation must unite in the filing of an affidavit for change of judge or magistrate and the filing of such affidavit by one party is deemed to be filed by all of such parties.
Source: SDC 1939 & Supp 1960, § 33.1212; SDCL, § 15-12-3; Supreme Court Rule No. 75-5, § 4.
15-12-24. Waiver of right by submitting to jurisdiction.
The submission to a judge or magistrate of argument or proof in support of a motion or application, or upon trial, is a waiver of the right thereafter to file an affidavit for change of such judge or magistrate by any party or his counsel who submitted the same or who after notice that such matter was to be presented, failed to appear at the hearing or trial. Such waiver shall continue until the final determination of the action and includes all subsequent motions, hearings, proceedings, trials, new trials, and all proceedings to enforce, amend, or vacate any order or judgment.
Source: SDC 1939 & Supp 1960, § 33.1210; SDCL, § 15-12-4; Supreme Court Rule No. 75-5, § 5.
15-12-25. Restriction to one change--Other parties' rights preserved.
Not more than one change of judge or magistrate shall be granted on request and/or affidavit made by or on behalf of the same party or parties united in interest, but the filing of an affidavit and the first change of judge or magistrate shall not prevent any other party to the action or his attorney from availing himself thereafter under the provisions of §§ 15-12-20 to 15-12-37, inclusive.
Source: SDC 1939 & Supp 1960, § 33.1207; SDCL, § 15-12-17; Supreme Court Rule No. 75-5, § 6; Supreme Court Rule 82-23.
15-12-26. Form and content of affidavits.
An affidavit for change of judge or magistrate shall state the title of the action and shall recite that the affidavit is made in good faith and not for the purpose of securing delay, that in the ordinary course of litigation such action or some issue therein is expected to come on for trial before such judge or magistrate sought to be disqualified; that the party making such affidavit has good reason to believe and does actually believe that such party cannot have a fair and impartial trial before the named judge or magistrate. Only one judge or magistrate shall be named in such affidavit. It shall not be necessary to state in such affidavit the ground or reason for such belief.
Source: SDC 1939 & Supp 1960, § 33.1208; SDCL, § 15-12-8; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 7.
15-12-27. Time for filing affidavit against judge or magistrate presiding in ordinary course.
An affidavit for change of judge or magistrate, if against the judge or magistrate who, in the ordinary course, would preside at the hearing or trial, must be filed within the following times:
(1) If there be any motion or application to be heard upon notice, the party resisting the same may file an affidavit not less than two days before the hearing; or if the matter is returnable in a shorter time, then before the commencement of such hearing;
(2) If there is no such motion or application:
(a) In actions triable without a jury, not less than five days before the date set for trial provided that if the time of trial has been set on less than five days notice, such affidavit shall be promptly filed thereafter and prior to the commencement of the trial;
(b) In actions triable by a jury at least fifteen days prior to the date said action is scheduled for trial; and
(3) If there has been a prior disqualification and substitution of a judge or magistrate a second or subsequent affidavit for change shall be filed with the clerk of courts of the county wherein such action is pending within two days after receiving notice of the name of the judge or magistrate designated to preside at the trial of said action in place of the judge or magistrate previously disqualified.
Source: SDC 1939 & Supp 1960, § 33.1211; SDCL § 15-12-6; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 8; SL 2009, ch 275 (Supreme Court Rule 08-05), eff. Nov. 1, 2008.
15-12-28. Time for filing after unanticipated change of judge or magistrate.
If the affidavit for change is against a judge or magistrate who is to preside who was not regularly scheduled to do so, the provision of § 15-12-27 shall govern if there be sufficient time after the party has knowledge or notice of such change of judge or magistrate, and if there is not sufficient time, the request for disqualification and the affidavit may be filed promptly after such knowledge or notice, but must be filed prior to the time set for the trial of such action.
Source: SDC 1939 & Supp 1960, § 33.1211; SDCL, § 15-12-7; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 9; Supreme Court Rule 82-23.
15-12-29. Late appointment or employment of counsel--Extending time for filing.
If counsel is appointed or retained after the time has passed for compliance with § 15-12-27, the request for disqualification and the affidavit must be promptly filed and the right to file shall be deemed waived if not filed within five days after counsel is so appointed or employed.
Source: Supreme Court Rule No. 75-5, § 10; Supreme Court Rule 82-23.
15-12-30. Filing of affidavit-Copies.
The affidavit for change of circuit judge or magistrate shall be filed with the clerk of the circuit court of the county in which the action is pending. The clerk shall deliver a copy of such affidavit to the presiding judge of the circuit. Such clerk shall also forthwith deliver a copy of such affidavit to the judge or magistrate referred to in said affidavit.
Source: SDC 1939 & Supp 1960, § 33.1208; SDCL § 15-12-9; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 11; SL 2015, ch 264 (Supreme Court Rule 15-02), eff. July 1, 2015; SL 2022, ch 260 (Supreme Court Rule 22-07), eff. Jul. 1, 2022.
15-12-31. Copies of affidavit served on adverse parties--Liability for failure to serve.
On the same day that an affidavit for change of judge or magistrate is filed, the party by whom or on whose behalf it is so filed, or his attorney, shall serve a copy of such affidavit, either personally or by mailing, upon all adverse parties, or their attorneys of record. The failure to make such service shall not in any manner destroy the effect of such affidavit so filed, but the party on whose behalf it is filed shall reimburse the other parties to the action and their witnesses for expense incurred by reason of such failure, the amount thereof and the terms under which the same shall be paid to be fixed and imposed by the court upon hearing.
Source: Supreme Court Order No. 4, 1955; SDC Supp 1960, § 33.1208; SDCL, § 15-12-10; Supreme Court Rule No. 3, 1972; Supreme Court Rule No. 75-5, § 12.
15-12-32. Review of affidavit--Designation of substitute judge or magistrate.
The presiding judge of the circuit court or in his absence or disqualification as the judge sought to be changed, the senior judge of the circuit shall review the affidavit and certification, if any, and it is determined that the affidavit is timely and that the right to file the affidavit has not been waived or is not otherwise legally defective, shall assign some other circuit judge or magistrate of that circuit as is appropriate to preside in such action, by filing an order of such appointment with the clerk of the court of the county wherein said action is pending. From the filing of such order the judge or magistrate therein designated shall have full power, authority and jurisdiction to proceed in the matter.
Source: SDC 1939 & Supp 1960, § 33.1214; SDCL, § 15-12-14; Supreme Court Rule No. 75-5, § 13.
15-12-33.Transmittal of copies of order to substitute judge or magistrate and counsel.
When an order appointing a substitute judge or magistrate has been filed with the clerk of the circuit court, that clerk shall notify the appointed judge or magistrate of the appointment by electronic mailing or by personally delivering a copy of such order of appointment and a statement of the case if one has been prepared or requested by the said substitute, and shall provide via electronic or first-class mail a copy of such order of appointment to all parties or to their attorneys of record in the action involved.
Source: SDC 1939 & Supp 1960, § 33.1215; SDCL, § 15-12-15; Supreme Court Rule No. 75-5, § 14; SL 2020, ch 249 (Supreme Court Rule 20-01), eff. Feb. 24, 2020.
15-12-34. Disqualification of all judges in circuit--Certification to Supreme Court.
In the event it shall be determined that all the judges of the circuit are disqualified or are unable to act in such action, the presiding judge of the circuit shall make and file in the office of the clerk of courts of the court involved an order to that effect. The clerk with whom such order is filed shall forthwith forward to the clerk of the Supreme Court the following:
(1) A certified copy of the affidavit for change of judge;
(2) A certified copy of the order of the presiding judge determining that all the judges of his circuit are disqualified or unable to act; and
(3) A signed statement in duplicate showing the title of the action, the name and address of each attorney of record therein, the date of filing of such affidavit, the general nature of the action and the status thereof.
Source: Supreme Court Rule No. 75-5, § 15.
15-12-35. Assignment of substitute judge by Chief Justice.
Upon receipt of the matter required by § 15-12-34, the Chief Justice of the Supreme Court shall assign some other judge to preside in such action by filing an order with the clerk of the Supreme Court, and from the filing of such order the judge therein designated shall have full power, authority, and jurisdiction to proceed in said action. The clerk of the Supreme Court shall thereupon notify the appointed judge, the presiding judge of said circuit, the clerk of the trial court and all attorneys of record in said action of the judge so assigned, which notice may be given orally if the Chief Justice so directs. The clerk shall mail or deliver to the appointed judge the statement of the action as furnished by the clerk of the trial court.
Source: Supreme Court Rule No. 75-5, § 16.
15-12-36. Jurisdiction of substituted judge or magistrate.
The judge or magistrate assigned to replace a disqualified judge or magistrate shall hear the action involved at the time set in any previous order, notice of any calendar assignment or at such other time as he may designate, to the end that the filing of such affidavit for change of judge or magistrate shall not result in any unnecessary delay.
Source: SDC 1939 & Supp 1960, § 33.1216; SDCL, § 15-12-16; Supreme Court Rule No. 75-5, § 17.
15-12-37. Disqualification on court's own motion.
A judge or magistrate having knowledge of a ground for self-disqualification under the guidelines established by Canon 3E shall not, unless Canon 3F is utilized, await the filing of an affidavit but shall remove himself on written motion to be filed in duplicate by the judge or magistrate with the clerk of courts of the county wherein the action is pending. The clerk of courts shall notify the presiding judge, and the parties or their attorneys in the manner provided by this chapter for notification on filing of an affidavit for change of judge or magistrate.
Source: Supreme Court Rule No. 75-5, § 18; SL 2023, ch 216 (Supreme Court Rule 22-15), eff. Jan. 1, 2023.
15-13-1
Purposes for which reference made on agreement of parties.
15-13-2
Purposes for which reference made without agreement of parties.
15-13-3
Shorthand reporter--Appointment, qualifications and duties.
15-13-4
Fees, expense, and compensation of shorthand reporter.
15-13-1. Purposes for which reference made on agreement of parties.
A reference may be ordered upon the agreement of the parties filed with the clerk or entered in the minutes:
(1) To try any or all the issues in an action or proceeding, whether of fact or law and to report a finding and conclusion thereon;
(2) To ascertain a fact necessary to enable the court to determine an action or proceeding;
(3) In all other cases provided for reference by law.
Source: SDC 1939 & Supp 1960, § 33.1501.
15-13-2. Purposes for which reference made without agreement of parties.
When the parties do not consent the court may, upon the application of either, or of its own motion, direct a reference in the following cases:
(1) When the trial of an issue of fact requires the examination of a long account on either side; in which case the referee may be directed to hear and decide the whole issue or report upon any specific question of fact involved therein;
(2) When the taking of an account is necessary for the information of the court before judgment or for carrying a judgment or order into effect;
(3) When it is necessary for the information of the court in a special proceeding;
(4) When the case raises issues regarding any of the natural resources of this state, including, but not limited to, all minerals, uranium, oil, gas, coal, air, and water.
Source: SDC 1939 & Supp 1960, § 33.1502; Supreme Court Rule 82-12.
15-13-3. Shorthand reporter--Appointment, qualifications and duties.
The referee may appoint a shorthand reporter whose qualifications and duties shall be the same as those of the shorthand reporter of the court.
Source: SDC 1939 & Supp 1960, § 33.1514.
15-13-4. Fees, expense, and compensation of shorthand reporter.
The fees and necessary expense of the referee and the compensation of the shorthand reporter shall be fixed by the court, after filing the report, and shall be audited and paid by the county wherein the court is held which made the reference; provided that the compensation of such reporter for making a transcript of the evidence shall not be a charge against or paid by the county, but when ordered by the referee shall be paid by the parties to the action.
Source: SDC 1939 & Supp 1960, § 33.1514.
15-14-1
Order of proceedings at trial.
15-14-2
Order of presentation of evidence and argument by different counsel.
15-14-3
Names of jurors deposited in suitable container.
15-14-4
Procedure for challenging jury panel.
15-14-5
Drawing of names from container.
15-14-6
Repealed.
15-14-6.1
Challenges for cause in a civil case.
15-14-7
Challenge of individual jurors--Number of peremptory challenges--Alternating by parties.
15-14-8
Challenges when several parties on one side.
15-14-9
Trial of jury challenges for cause--Witnesses.
15-14-10
Procedure for peremptory challenges--Replacement of jurors challenged.
15-14-10.1
Choosing alternate jurors.
15-14-10.2
Number of prospective jurors.
15-14-10.3
Selection of prospective jurors.
15-14-10.4
Determining manner of exercising peremptory challenge.
15-14-10.5
Exercise of peremptory challenge.
15-14-11
Oath of jurors--Affirmation.
15-14-12
Admonitions by court on separation of jury.
15-14-13
Discharge of juror unable to proceed with trial--Proceedings after discharge.
15-14-14
Stenographic report of opening statements not required.
15-14-15
One counsel on each side to examine witness.
15-14-16
View of premises by jury.
15-14-17
Number of counsel and time allowed for argument to jury.
15-14-18
Scope of argument to jury--Argument on law.
15-14-19
Retirement of jury for deliberation.
15-14-20
Papers, exhibits, and notes taken into jury room.
15-14-21
Communications to and from jury during deliberations.
15-14-22
Other business of court during jury deliberations--Case open until jury discharged.
15-14-23
Verdict to include value and damages in action for recovery of personal property.
15-14-24
Sealed verdict directed on agreement during adjournment.
15-14-25
Receipt from jury and reading of verdict--Inquiry--Number of votes required.
15-14-26
Polling of jury--Dissenting votes.
15-14-27
Actions in which five-sixths vote by jury sufficient.
15-14-28
Receipt and reading of verdict when five-sixths vote sufficient--Inquiry--Dissenting votes.
15-14-29
Polling of jury when five-sixths vote sufficient--Dissenting votes.
15-14-30
Correction of irregularities in verdict.
15-14-31
Minute entry on receipt of verdict--Contents.
15-14-32
Jury discharged by final adjournment for term.
15-14-33
New trial after verdict not returned.
15-14-1. Order of proceedings at trial.
In civil jury cases, prior to the jury having been selected and sworn, the court may read a written statement of the case agreed upon by the parties to the prospective jurors. The statement may include a summary of the uncontested facts of the case, the claims of the parties and the issues presented. Any such statement of the case shall be submitted to the parties and agreed to by them before being read to the jury panel. The statement of the case read to the prospective jurors shall become a part of the instructions and charge to the jury except to the extent that justice may require any modification thereof after the evidence has been concluded. The jury shall then be selected and sworn, and the trial shall then proceed in the following order, subject to the right of the court, for good cause shown, otherwise to direct the order of statements, proof, and argument:
(1) The court may give such general and preliminary instructions pursuant to § 15-6-51, as the court, in its discretion, deems advisable;
(2) The plaintiff or party having the burden of proof shall state the issues and the general nature of the evidence he expects to produce in substantiation of the issues by stating what he claims the issuable facts to be, without argument, and without naming or identifying any particular witness or exhibit by which he expects to prove any of such issuable facts unless permitted by the court;
(3) The defendant or party not having the burden of proof shall then state the issues and the general nature of the evidence he expects to produce in substantiation of the issues by stating what he claims the issuable facts to be, without argument, and without naming or identifying any particular witness or exhibit by which he expects to prove any of such issuable facts unless permitted by the court;
(4) The party having the burden of proof shall then produce and offer before the court and jury the evidence on his part;
(5) The opposing party shall then produce and offer before the court and jury his evidence in support of his defense;
(6) The party having the burden of proof may then offer rebutting evidence only, and the opposing party may also offer rebutting evidence only, unless the court for good reason, in furtherance of justice, permit them to offer evidence upon their original case;
(7) When the evidence is concluded the court shall then settle the instructions and charge the jury;
(8) After the court shall have charged the jury, the plaintiff or party having burden of proof may commence and may conclude the argument, the opposing party making his argument between the opening and concluding argument of plaintiff.
Source: SDC 1939 & Supp 1960, § 33.1307; SL 1993, ch 389 (Supreme Court Rule 93-6); SL 1999, ch 269; SL 2000, ch 257 (Supreme Court Rule 00-3).
15-14-2. Order of presentation of evidence and argument by different counsel.
If several parties, having separate interests, appear by different counsel, the court must determine their relative order in the evidence and argument.
Source: SDC 1939 & Supp 1960, § 33.1307 (10).
15-14-3. Names of jurors deposited in suitable container.
At the opening of the court the clerk shall randomly draw the names of the persons summoned as jurors by an electronic process or prepare separate ballots containing the names of the summoned jurors and deposit the ballots in a suitable container.
Source: SDC 1939 & Supp 1960, § 33.1308; SL 2003, ch 115, § 1.
15-14-4. Procedure for challenging jury panel.
The procedure for challenging a panel of jurors in civil actions or proceedings shall be the same as provided by statute for such challenges in criminal proceedings.
Source: SDC 1939 & Supp 1960, § 33.1309.
15-14-5. Drawing of names from container.
If an electronic process is not used, the clerk shall, under the direction of the court, publicly draw from the container the appropriate number of ballots to form the jury. Before the name of any juror is drawn, the container shall be closed and the contents shall be intermingled. The clerk shall then, without looking at the ballots, draw them from the container.
Source: SDC 1939 & Supp 1960, § 33.1308; SL 2003, ch 115, § 2.
15-14-6.1. Challenges for cause in a civil case.
Challenges for cause may be taken on any of the following grounds:
(1) The prospective juror does not meet one of the qualifications required by § 16-13-10 or is disqualified under that section;
(2) The prospective juror is related by consanguinity or affinity within the fourth degree, as defined by § 23A-20-30, to a party in the case;
(3) The prospective juror is a member of the family of a party or one of the attorneys in the case;
(4) The prospective juror has a relationship of guardian and ward, master and servant, employer and employee, landlord and tenant, or principal and agent with an attorney or a party in the case;
(5) The prospective juror is a partner or associate in business with an attorney or a party in the case;
(6) The prospective juror is a surety on a bond or an obligation for an attorney or a party in the case;
(7) The prospective juror, presently, has a relationship of attorney and client with one of the attorneys in the case or has had such a relationship within one year previously;
(8) The prospective juror is an officer, agent, or employee of a corporation, between which corporation and an attorney in the case, the relationship of attorney and client exists;
(9) The prospective juror is the spouse of an attorney in the case;
(10) The prospective juror is the spouse of any other prospective juror who would be subject to a challenge for cause under this section;
(11) The prospective juror previously served as a juror or was a witness in a previous trial between the same parties for the same cause of action;
(12) The prospective juror has a pecuniary interest in the outcome of the case, except an interest as a member or citizen of a municipal corporation or other government unit;
(13) The prospective juror has knowledge of some or all of the material facts of the case and has an unqualified opinion or belief as to the merits of the case;
(14) The prospective juror has a state of mind evincing enmity against, or bias to or against a party in the case;
(15) Within two years prior to being summoned, the prospective juror served as a juror in the county during a prior term of jury service pursuant to § 16-13-22;
(16) The prospective juror has a civil case pending in the county exclusive of small claims actions;
(17) If a talesman, the prospective juror applied directly or indirectly to a sheriff, deputy sheriff, or coroner of the county to be summoned for jury duty;
(18) A challenge for actual bias showing the existence of a state of mind on the part of a prospective juror, in reference to the case or to a party, that satisfies the court, in the exercise of sound discretion, that the juror cannot try the issue impartially, without prejudice to the substantial rights of the party challenging.
Source: SL 1999, ch 277; SL 2002, ch 249, § 2.
15-14-7. Challenge of individual jurors--Number of peremptory challenges--Alternating by parties.
The challenges are to individual jurors, and are either peremptory or for cause. Each party is entitled to three peremptory challenges. If no peremptory challenges are taken until the panel is full, they must be taken by the parties alternately, commencing with the plaintiff.
Source: SDC 1939 & Supp 1960, § 33.1310.
15-14-8. Challenges when several parties on one side.
Either party may challenge the jurors, but where there are several parties on either side they must join in a challenge before it can be made, except when the parties on the same side have conflicting interests they must each be allowed to examine and challenge separately, and must each be allowed the number of peremptory challenges provided by law.
Source: SDC 1939 & Supp 1960, § 33.1310.
15-14-9. Trial of jury challenges for cause--Witnesses.
Challenges for cause must be tried by the court. The juror challenged and any other person may be examined as a witness on the trial of the challenge.
Source: SDC 1939, § 33.1311; SL 1951, ch 185.
15-14-10. Procedure for peremptory challenges--Replacement of jurors challenged.
After the panel is filled the parties shall exercise their peremptory challenges. A list of the jurors in the panel shall be made by the clerk and passed first to the plaintiff and then to the defendant, or their respective counsel, and the parties shall exercise their peremptory challenges by crossing out the name of the juror they desire to challenge and noting thereafter that such challenge has been exercised by the plaintiff or defendant, as the case may be. When a peremptory challenge is exercised it shall be announced by the party or attorney exercising it; but the name of the juror challenged need not be announced. Thereupon and before further challenges are exercised, the clerk shall draw another juror and he may be examined for cause and challenges for cause made. The parties shall proceed alternately, exercising their peremptory challenges until the same are exhausted and the jurors then remaining in the box shall be sworn as jurors to try the case.
Source: SDC 1939 & Supp 1960, § 33.1312.
15-14-10.1. Choosing alternate jurors.
In addition to the method of choosing or seating an alternate juror provided by § 15-6-47(b), the judge may choose the alternate jurors by lot, or by such other means as the parties agree on the record.
Source: Supreme Court Rule 97-2.
15-14-10.2. Number of prospective jurors.
When prospective jurors are called for examination, the court may call to the jury box a number of prospective jurors equal to the number of jurors to be impaneled, the number of peremptory challenges allowed the parties, and number of alternates, if any.
Source: Supreme Court Rule 97-3.
15-14-10.3. Selection of prospective jurors.
When prospective jurors are called for examination, the court shall allow selection by either § 15-14-10.2 or 15-14-10.
Source: Supreme Court Rule 97-4.
15-14-10.4. Determining manner of exercising peremptory challenge.
If prospective jurors are called for examination pursuant to § 15-14-10.2, the manner of exercising a peremptory challenge shall be as found in § 15-14-10.5. If prospective jurors are called for examination pursuant to § 15-14-10, the manner of exercising a peremptory challenge shall be as found in § 15-14-10.
Source: Supreme Court Rule 97-5.
15-14-10.5. Exercise of peremptory challenge.
Following examination of the jurors called for examination pursuant to § 15-14-10.2, the parties, commencing with the plaintiff, shall alternatively exercise their peremptory challenges on the clerk's list. A peremptory challenge may not be waived.
Source: Supreme Court Rule 97-6.
15-14-11. Oath of jurors--Affirmation.
As soon as the jury is completed, the following oath shall be administered to the jurors.
Do you, and each of you, swear or affirm that you will fairly hear the matters in dispute and render a verdict according to the evidence and the instructions of the court, so help you God?
Source: SDC 1939 & Supp 1960, § 33.1313; SL 2007, ch 131, § 1.
15-14-12. Admonitions by court on separation of jury.
Whenever the jurors are permitted to separate, they shall be admonished by the court as follows: You are reminded that you are not to discuss any aspect of this case among yourselves or with anyone else and that you should not form or express any opinion on the case until it is given to you for decision.
Source: SDC 1939 & Supp 1960, § 33.1320; SL 2007, ch 149, § 2.
15-14-13. Discharge of juror unable to proceed with trial--Proceedings after discharge.
If after the impaneling of a jury and before a verdict, a juror dies or becomes so sick as to be unable properly to perform his duty, or if a member of the immediate family of a juror dies or becomes so sick as to warrant the discharge of such juror, the court may order him to be discharged. In that case the trial may proceed with the other jurors if the parties so agree, or another juror may be sworn and the trial begin anew, or the jury may be discharged and a new jury then or afterward impaneled.
Source: SDC 1939 & Supp 1960, § 33.1326.
15-14-14. Stenographic report of opening statements not required.
The court reporter need not make stenographic report of the opening statements of counsel unless the court shall direct, nor if made shall he include same in the transcript unless requested by the party ordering the transcript.
Source: SDC 1939 & Supp 1960, § 33.1307 (3).
15-14-15. One counsel on each side to examine witness.
Unless by leave of court, one counsel only on each side shall be entitled to examine or cross-examine a witness.
Source: SDC 1939 & Supp 1960, § 33.1307 (7).
15-14-16. View of premises by jury.
When in the opinion of the court it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place which shall be shown to them by some person appointed by the court for that purpose. The jury may be given a view of the property or place while the case is being submitted to them or during their deliberation, or both, as the court may order. While the jury are thus absent, no person, other than the person so appointed, shall speak to them on any subject connected with the trial.
Source: SDC 1939 & Supp 1960, § 33.1322.
15-14-17. Number of counsel and time allowed for argument to jury.
The number of counsel and the time allowed for argument to the jury shall be determined by the court in each case before the argument is begun.
Source: SDC 1939 & Supp 1960, § 33.1321.
15-14-18. Scope of argument to jury--Argument on law.
Counsel in arguing the case may argue and comment upon the law as given in the instructions of the court, as well as upon the evidence in the case, but in no case except in trials for libel, shall counsel argue or contend before the jury that the law governing the case is other or different than that settled and given by the trial court in the instructions. The trial court shall strictly enforce this section and § 15-14-17.
Source: SDC 1939 & Supp 1960, § 33.1321.
15-14-19. Retirement of jury for deliberation.
When the case is finally submitted to the jury they may decide in court or retire for deliberation. If they retire, they must be kept together in some convenient place under charge of an officer until they agree upon a verdict or are discharged by the court; provided, that the court may, at its discretion, permit the jurors to separate during the adjournment of court overnight.
Source: SDC 1939 & Supp 1960, § 33.1324; Supreme Court Rule No. 5, 1972, effective January 1, 1973.
15-14-20. Papers, exhibits, and notes taken into jury room.
Upon retiring for deliberation the jury may take with them all papers which have been received as evidence in the cause, except depositions and such papers and exhibits as ought not, in the opinion of the court, to be taken from the person having them in his possession; and they may also take with them notes of the testimony or other proceedings on the trial taken by themselves, or any of them, but none taken by any other person.
Source: SDC 1939 & Supp 1960, § 33.1323.
15-14-21. Communications to and from jury during deliberations.
Unless by order of the court the officer having the jury under his charge must not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon a verdict; or to make such communications necessary for their food and maintenance while in his charge; and he must not before their verdict is rendered communicate to any person the state of their deliberations, or the verdict agreed upon.
Source: SDC 1939 & Supp 1960, § 33.1324.
15-14-22. Other business of court during jury deliberations--Case open until jury discharged.
While the jury is absent the court may adjourn from time to time, in respect to other business; but it is nevertheless open for every purpose connected with the cause submitted to the jury until a verdict is rendered or the jury discharged.
Source: SDC 1939 & Supp 1960, § 33.1336.
15-14-23. Verdict to include value and damages in action for recovery of personal property.
In an action for the recovery of specific personal property, if the property has not been delivered to the plaintiff, or the defendant, by his answer, claim a return thereof, the jury, if their verdict be in favor of the plaintiff, or, if being in favor of the defendant, they also find that he is entitled to a return thereof, must find the value of the property, and if so instructed, the value of specific portions thereof, and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the taking or detention of such property.
Source: SDC 1939 & Supp 1960, § 33.1332.
15-14-24. Sealed verdict directed on agreement during adjournment.
The court may direct the jury to bring in a sealed verdict, at the opening of the court, in case of an agreement during a recess or adjournment for the day.
Source: SDC 1939 & Supp 1960, § 33.1336.
15-14-25. Receipt from jury and reading of verdict--Inquiry--Number of votes required.
Except in the cases provided for in § 15-14-27, when the jury have agreed upon their verdict they must be conducted into court, their names called by the clerk and the verdict rendered by their foreman. The verdict must be in writing, signed by the foreman, and must be read by the clerk to the jury, and the inquiry made whether it is their verdict. If three or more jurors disagree they must be sent out again. If ten of the jury agree to the verdict it shall be the verdict of the jury and so recorded.
Source: SDC 1939 & Supp 1960, § 33.1333.
15-14-26. Polling of jury--Dissenting votes.
If neither party requires the jury to be polled the verdict is complete and the jury discharged from the case. Either party may require the jury to be polled, which is done by the court or clerk asking each juror if it is his verdict. If more than two answer in the negative, except in the cases provided for in § 15-14-27, the jury must again be sent out.
Source: SDC 1939 & Supp 1960, § 33.1333.
15-14-27. Actions in which five-sixths vote by jury sufficient.
In all civil actions cognizable by a magistrate judge, except actions for the forcible entry and detainer, or detainer only, of real property, tried in the circuit court, the verdict may be rendered by five-sixths of the jury in the manner provided in §§ 15-14-28 and 15-14-29.
Source: SDC 1939 & Supp 1960, § 33.1334; SL 1974, ch 153, § 7; SL 1985, ch 160; SL 1994, ch 157, § 3; SL 1997, ch 112, § 1.
15-14-28. Receipt and reading of verdict when five-sixths vote sufficient--Inquiry--Dissenting votes.
In the actions provided for in § 15-14-27, when the jury has agreed upon their verdict, they shall be conducted into court, their names shall be called by the clerk and the verdict shall be rendered by their foreman. The verdict shall be in writing signed by the foreman and shall be read by the clerk to the jury and the inquiry made whether it is their verdict. If two or more of the jury disagree, they shall be sent out again. If five of the jury agree to the verdict, it shall be the verdict of the jury and so recorded.
Source: SDC 1939 & Supp 1960, § 33.1335; SL 1997, ch 112, § 2.
15-14-29. Polling of jury when five-sixths vote sufficient--Dissenting votes.
If neither party in an action provided for in § 15-14-27 requires the jury to be polled, the verdict is complete and the jury shall be discharged from the case. Either party may require the jury to be polled, which shall be done by the court or clerk asking each juror if it is his or her verdict. If more than one answers in the negative, the jury shall be sent out.
Source: SDC 1939 & Supp 1960, § 33.1335; SL 1997, ch 112, § 3.
15-14-30. Correction of irregularities in verdict.
When the verdict is announced, if it be informal or insufficient in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.
Source: SDC 1939 & Supp 1960, § 33.1337.
15-14-31. Minute entry on receipt of verdict--Contents.
Upon receiving a verdict an entry must be made by the clerk in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and setting out the verdict at length.
Source: SDC 1939 & Supp 1960, § 33.1338.
15-14-32. Jury discharged by final adjournment for term.
A final adjournment of the court for the term discharges the jury.
Source: SDC 1939 & Supp 1960, § 33.1336.
15-14-33. New trial after verdict not returned.
In all cases where the jury are discharged or prevented from giving a verdict by reason of accident or other cause, during the progress of the trial, or after the cause is submitted to them, the action may be again tried immediately or at a future time, as the court may direct.
Source: SDC 1939 & Supp 1960, § 33.1328.
CHAPTER 15-15
RECORD AND EXHIBITS
15-15-1 Objections, rulings, proceedings, and remarks to be noted by court reporter.
15-15-2 Clerk or judge to keep minutes in absence of reporter--Computer record.
15-15-3 Exhibits and record evidence marked for identification and filed--Reading of contents or description into trial record.
15-15-4 Sale or destruction of exhibits if not collected when judgment final--Retention of necessary copies--Fee.
15-15-4.1 Return of administrative record to agency of origin when judgment final.
15-15-5 Record on motion for new trial--Contents--Formal settlement not required.
15-15-6 15-15-6. Repealed by SL 1984, ch 12, § 33
15-15-7 Fee for transcript--Exception for indigents.
15-15-7.1 Court reporter transcript fees.
15-15-8 Letter size paper required in all courts.
15-15-9 Content of record.
15-15-10 Temporary sealing of transcript.
15-15-11 Request to prohibit public access to information in transcript--Filing under seal or with redaction of information.
15-15-12 Transcript of voir dire proceeding only available for inspection at courthouse.
15-15-1. Objections, rulings, proceedings, and remarks to be noted by court reporter.
When a court reporter is making a record of the proceedings of the court in any trial, motion, or proceeding of any kind before the court, he shall note all objections to the evidence and rulings thereon and all motions, stipulations, applications, and similar proceedings relevant to the matter involved and all rulings and remarks of the court thereon.
Source: SDC 1939 & Supp 1960, § 33.1601.
15-15-2. Clerk or judge to keep minutes in absence of reporter--Computer record.
If there is no court reporter making such record, the clerk of the court shall keep full and accurate minutes of all such matters as referred to in § 15-15-1 and rulings thereon. In the absence of both reporter and clerk, the judge shall preserve the minutes of the proceedings. If the record of the court action is kept by an automated process, the computer record shall constitute the minutes of the court.
Source: SDC 1939 & Supp 1960, § 33.1601; SL 1991, ch 167.
15-15-3. Exhibits and record evidence marked for identification and filed--Reading of contents or description into trial record.
All exhibits or other record evidence offered at the trial of a cause shall be marked for identification by the shorthand reporter or clerk and shall be filed as records in said cause. The trial judge may order a copy of any exhibit or of the material parts thereof filed in place of the original or may direct that the material parts thereof be read into the record upon the trial and when the exhibit is of such nature that it cannot be filed or the contents thereof read into the record, a description thereof shall be read into the record upon the trial.
Source: SDC 1939 & Supp 1960, § 33.1602.
15-15-4.Sale or destruction of exhibits if not collected when judgment final--Retention of necessary copies--Fee.
Whenever the decision or judgment of the court has become final, the clerk of courts shall give notice to the attorneys or parties of record by electronic or first-class mail that the exhibits in the possession of the clerk, if not collected within thirty days, shall upon order of the court be destroyed or sold at sale under chapter 15-19. However, upon proper application to the court, the exhibit may be preserved as a part of the permanent record in the files. If an exhibit is a necessary part of the judgment or consists of a written instrument establishing the liability of a party against whom judgment has been rendered, a copy of it shall be made and retained by the clerk and the original canceled by endorsement across its face before being returned to the person entitled thereto as determined by the court. Unless the person entitled thereto as determined by the court shall furnish a true copy of such exhibit, he shall pay the fee of the clerk for making such copy.
Source: SDC 1939 & Supp 1960, § 33.1602; SL 1977, ch 171; SL 1979, ch 148; Supreme Court Rule 82-21; SL 1990, ch 149, § 9; SL 2020, ch 250 (Supreme Court Rule 20-02), eff. Feb. 24, 2020.
15-15-4.1. Return of administrative record to agency of origin when judgment final.
Whenever the decision or judgment of the court has become final in an action governed by chapter 1-26, the clerk of courts shall return to the agency of origin the administrative record filed with the court pursuant to the provisions of § 1-26-33. Subsequent access to said record shall be governed by the provisions of § 1-26-7.
Source: Supreme Court Rule 82-22.
15-15-5. Record on motion for new trial--Contents--Formal settlement not required.
The record for presentation of any motion or application for a new trial shall consist of all the documents, evidence, motions, applications, objections, and rulings of the court as offered, filed, recorded, or entered in the minutes of the clerk or judge and the transcript of the reporter, if such transcript has been made, but it shall not be necessary to have such record formally settled for purposes of application for new trial.
Source: SDC 1939 & Supp 1960, § 33.1603.
15-15-7. Fee for transcript--Exception for indigents.
Unless ordered by the court to be supplied to an indigent or an indigent's counsel and paid out of the county treasury where court was held, a fee shall be charged to the person ordering a typewritten transcript by filing of an order for transcript on appeal of a proceeding taken by an officer of the court, which shall be certified to be a correct transcript of the reporter's notes of the evidence.
Source: SDC 1939, §§ 32.0503, 32.0504; SL 1957, ch 173; SDCL, §§ 16-7-12, 16-7-13; SL 1970, ch 136, §§ 1, 2; SL 1974, ch 152, § 1; SL 1976, ch 148; SL 1980, ch 164; SL 1984, ch 146; SL 1986, ch 27, § 5; SL 1988, ch 177; SL 2003, ch 116, § 1; SL 2022, ch 52, § 1, eff. Jan. 1, 2023.
15-15-7.1. Court reporter transcript fees.
The fee for the preparation of a transcript from a court reporter’s notes of evidence is three dollars and sixty cents per page for the original. The fee for a copy, furnished on request, is sixty-five cents per page, to be paid to the officer of the court who prepared the transcript.
Source: SL 2023, ch 217 (Supreme Court Rule 22-16), § 1, eff. Jan. 1, 2023.
15-15-8. Letter size paper required in all courts.
Eight and one-half inch by eleven inch paper size shall be the only accepted size in all of the courts of the State of South Dakota. This section shall be applicable to all documents except original documents filed as exhibits.
Source: Supreme Court Rule 82-3.
15-15-9. Content of record.
The record of any hearing, court trial or jury trial conducted by or on behalf of the Unified Judicial System shall consist of the transcript prepared by an official court reporter or court recorder or freelance reporter on contract with the Unified Judicial System, the exhibits offered in evidence and jury instructions. This rule shall not apply to child support referee hearings.
The reporter shall transcribe and certify such parts of the record of the proceedings as may be required by any rule or order of the court. Upon the request of any party to any proceeding which has been so recorded, who has agreed to pay any applicable fee for such transcription, the reporter shall file an electronic transcript with the clerk of court upon completion and transmit a paper or electronic copy to the requesting party. The court may request that an additional paper copy of the transcript be filed with the clerk of court.
Source: SL 2010, ch 255 (Supreme Court Rule 10-02), eff. Feb. 26, 2010; SL 2011, ch 228 (Supreme Court Rule 10-04), eff. Aug. 30, 2010; SL 2015, ch 265 (Supreme Court Rule 15-03), eff. July 1, 2015.
15-15-10. Temporary sealing of transcript.
The clerk of court shall file the transcript in the court record. The transcript shall be sealed for a period of ninety days from the date filed unless otherwise ordered by the court. During this time period, any copy of such transcript shall be obtained from the court reporter or transcriber at the rate provided by existing law.
Following the expiration of such period of time, unless otherwise sealed or declared confidential by court order or existing law, the filed transcript will be available for public inspection and copying through the clerk of courts office or through any other means of electronic court record access. Reproduction of the transcript may be provided on the same terms and conditions as any other document in the court record.
Source: SL 2015, ch 266 (Supreme Court Rule 15-04), eff. July 1, 2015.
15-15-11. Request to prohibit public access to information in transcript--Filing under seal or with redaction of information.
A request to prohibit public access to certain information in a transcript shall be governed by § 15-15A-13. The court may order that any transcript be filed under seal or may require the redaction of information contained in the transcript for good cause shown. In the event of redaction, an unredacted version shall also be filed with the court under seal. During the ninety day period, or for such period of time as may be extended by the court pursuant to § 15-15-10, the parties to the case shall review the transcript to identify any items contained therein that should not be accessible to the public pursuant to court order or existing law. If such information exists, the parties shall move for the court to have that information protected in the public record. It shall not be the responsibility of the reporter when preparing a transcript to redact information unless a request has been made in advance to redact specific information by the parties or the court.
Source: SL 2015, ch 267 (Supreme Court Rule 15-05), eff. July 1, 2015.
15-15-12. Transcript of voir dire proceeding only available for inspection at courthouse.
In order to protect the confidentiality of private juror information the transcript of any voir dire proceeding shall not be made available to the public except through inspection at the courthouse unless otherwise ordered by the court.
Source: SL 2015, ch 268 (Supreme Court Rule 15-06), eff. July 1, 2015.
CHAPTER 15-15A
UNIFIED JUDICIAL SYSTEM COURT RECORDS RULE
15-15A-1 Purpose of rule of access to court records.
15-15A-2 Who has access to court records under the rule.
15-15A-3 Definition of terms.
15-15A-4 Applicability of rule.
15-15A-5 General access rule.
15-15A-6 Court records that are only publicly available at a court facility.
15-15A-7 Court records excluded from public access.
15-15A-8 Confidential numbers, financial documents, and name of child victim excluded from public access.
15-15A-9 Filing confidential numbers, financial documents, and name of child victim in court record.
15-15A-10 Procedure for requesting access to confidential financial documents.
15-15A-11 Requests for bulk distribution of court records.
15-15A-12 Access to compiled information from court records.
15-15A-13 Requests to prohibit public access to information in court records.
15-15A-14 When court records may be accessed.
15-15A-15 Fees for accessing court records.
15-15A-16 Access to certain court security information.
15-15A-A APPENDIX OF FORMS
15-15A-1. Purpose of rule of access to court records.
The purpose of this rule is to provide a comprehensive policy on access to court records. The rule provides for access in a manner that:
(1) Maximizes accessibility to court records,
(2) Supports the role of the judiciary,
(3) Promotes governmental accountability,
(4) Contributes to public safety,
(5) Minimizes risk of injury to individuals,
(6) Protects individual privacy rights and interests,
(7) Protects proprietary business information,
(8) Minimizes reluctance to use the court to resolve disputes,
(9) Makes most effective use of court and clerk of court staff,
(10) Provides excellent customer service, and
(11) Does not unduly burden the ongoing business of the judiciary.
The rule is intended to provide guidance to 1) litigants, 2) those seeking access to court records, and 3) judges, court and clerk of court personnel responding to requests for access.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SL 2005, ch 291 (Supreme Court Rule 05-05, eff. Feb. 25, 2005.
15-15A-2. Who has access to court records under the rule.
Every member of the public has the same access to court records as provided in this rule, except as provided otherwise by statute or rule and except as provided in § 15-15A-7.
"Public" includes:
(1) any person and any business or non-profit entity, organization or association;
(2) any governmental agency for which there is no existing policy, statute or rule defining the agency's access to court records;
(3) media organizations.
"Public" does not include:
(4) court or clerk of court employees;
(5) people or entities, private or governmental, who assist the court in providing court services;
(6) public agencies whose access to court records is defined by another statute, rule, order, policy or database access agreement with the South Dakota Unified Judicial System;
(7) the parties to a case or their lawyers regarding access to the court record in their case, which may be defined by statute or rule.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005.
15-15A-3. Definition of terms.
(1) "Court record" includes any document, information, or other thing that is collected, received or maintained by a clerk of court in connection with a judicial proceeding. "Court record" does not include other records maintained by the public official who also serves as clerk of court or information gathered, maintained or stored by a governmental agency or other entity to which the court has access but which is not part of the court record as defined in this section.
(2) Information in a court record "in electronic form" includes information that exists as: (a) electronic representations of text or graphic documents; (b) an electronic image, including a video image, of a document, exhibit or other thing; or (c) data in the fields or files of an electronic database.
(3) "Public access" means that the public may inspect and obtain a copy of the information in a court record unless otherwise prohibited by statute, court rule or a decision by a court of competent jurisdiction. The public may have access to inspect information in a court file upon payment of applicable fees.
(4) "Remote access" means the ability to electronically search, inspect, or copy information in a court record without the need to physically visit the court facility where the court record is maintained.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005.
15-15A-4. Applicability of rule.
This rule applies to all court records, regardless of the physical form of the court record, the method of recording the information in the court record or the method of storage of the information in the court record.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005.
15-15A-5. General access rule.
(1) Information in the court record is accessible to the public except and as prohibited by statute or rule and except as restricted by §§ 15-15A-7 through 15-15A-13.
(2) There shall be a publicly accessible indication of the existence of information in a court record to which access has been restricted, which indication shall not disclose the nature of the information protected, i.e., "sealed document."
(3) An individual circuit or a local court may not adopt a more restrictive access policy or otherwise restrict access beyond that provided by statute or in this rule, nor provide greater access than that provided for by statute or in this rule.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005.
15-15A-6. Court records that are only publicly available at a court facility.
A request to limit public access to information in a court record to a court facility in the jurisdiction may be made by any party to a case, an individual identified in the court record, or on the court's own motion. For good cause, the court will limit the manner of public access. In limiting the manner of access, the court will use the least restrictive means that achieves the purposes of this access rule and the needs of the requestor.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005.
15-15A-7. Court records excluded from public access.
The following information in a court record is not accessible to the public:
(1) Information that is not to be accessible to the public pursuant to federal law;
(2) Information that is not to be accessible to the public pursuant to state law, court rule or case law as follows;
(3) Examples of such state laws, court rules, or case law follow. Note this may not be a complete listing and the public and court staff are directed to consult state law, court rules or case law. Note also that additional documents are listed below that may not be within court records but are related to the court system; the public and court staff should be aware of access rules relating to these documents.
(a) Abortion records (closed); § 34-23A-7.1
(b) Abuse and neglect files and records (closed, with statutory exceptions); § 26-8A-13
(c) Adoption files and adoption court records (closed, with statutory exceptions); §§ 25-6-15 through 25-6-15.3
(d) Affidavit filed in support of search warrant (sealed if so ordered by court, see statutory directives); § 23A-35-4.1
(e) Attorney discipline records (closed until formal complaint has been filed with Supreme Court by the State Bar Association's Disciplinary Board or Attorney General, accused attorney requests matter be public, or investigation is premised on accused attorney's conviction of a crime); § 16-19-99
(f) Civil case filing statements (closed); § 15-6-5(h)
(g) Coroner's inquest (closed until after arrest directed if inquisition finds criminal involvement with death); § 23-14-12
(h) Custody or visitation dispute mediation proceedings pursuant to § 25-4-60 (closed, inadmissible into evidence)
(i) Discovery material (closed unless admitted into evidence by court) §§ 15-6-26(c); 15-6-5(g)
(j) Domestic abuse victim's location (closed, with statutory exception); § 25-10-39
(k) Employment examination or performance appraisal records maintained by Bureau of Human Resources and Administration (closed); § 1-27-1
(l) Grand jury proceedings (closed with statutory exceptions); § 23A-5-16
(m) Guardianships and conservatorships (closed with statutory exceptions); § 29A-5-311
(n) Involuntary commitment for alcohol and drug abuse (petition, application, report to circuit court and court's protective custody order sealed; law enforcement or prosecutor may petition the court to examine these documents for limited purpose); § 34-20A-70.2
(o) Judicial disciplinary proceedings (closed until Judicial Qualifications Commission files its recommendation to Supreme Court, accused judge requests matter be public, or investigation is premised on accused judge's conviction of either a felony crime or one involving moral turpitude); ch. 16-1A, Appx. III(1)
(p) Juvenile court records and court proceedings (closed with statutory exception); §§ 26-7A-36 through -38; §§ 26-7A-113 through -116
(q) Mental illness court proceedings and court records (closed); §§ 27A-12-25; 27A-12-25.1 through -32
(r) Pardons (statutory exceptions, see § 24-14-11)
(s) Presentence investigation reports (closed); §§ 23A-27-5 through -10; § 23A-27-47
(t) Probationer under suspended imposition of sentence (record sealed upon successful completion of probation conditions and discharge); §§ 23A-27-13.1; 23A-27-17
(u) Records prepared or maintained by court services officer (closed except by specific order of court); § 23A-27-47
(v) Trade secrets (closed); subdivision 15-6-26(c)(7)
(w) Trusts (sealed upon petition with statutory exceptions); § 21-22-28
(x) Voluntary termination of parental rights proceedings and records (closed except by order of court); § 25-5A-20
(y) Wills (closed with statutory exceptions); § 29A-2-515
(z) Written communication between attorney and client; attorney work product (closed unless such privilege is waived); ch. 16-18, Appx. Rule 1.6
(aa) Information filed with the court pending in camera review (closed)
(bb) Any other record declared to be confidential by law; § 1-27-3.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005; SL 2012, ch 23, § 93; SL 2024, ch 1 (Ex. Ord. 24-1), § 35, eff. Apr. 8, 2024.
15-15A-8. Confidential numbers, financial documents, and name of child victim excluded from public access.
The following information in a court record is not accessible to the public:
(1) Social security numbers, employer or taxpayer identification numbers, and financial or medical account numbers of an individual.
(2) Financial documents such as income tax returns, W-2's and schedules, wage stubs, credit card statements, financial institution statements, check registers, and other financial information.
(3) The name of any minor child alleged to be the victim of a crime in any adult criminal proceeding.
Source: SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005; SL 2015, ch 269 (Supreme Court Rule 15-07), eff. July 1, 2015.
15-15A-9. Filing confidential numbers, financial documents, and name of child victim in court record.
(1) Social security numbers, employer or taxpayer identification numbers, and financial or medical account numbers of an individual where required to be filed with the court shall be submitted on a separate Confidential Information Form, appended to these rules, and filed with the pleading or other document required to be filed. The Confidential Information Form is not accessible to the public.
(2) Financial documents named in subdivision 15-15A-8(2) that are required to be filed with the court shall be submitted as a confidential document and designated as such to the clerk upon filing. The Confidential Financial Documents Information Form appended to these rules shall be attached to financial documents being filed with the court. The Confidential Financial Documents Information Form is not accessible to the public. The confidential financial documents will not be publicly accessible, even if admitted as a trial or hearing exhibit, unless the court permits access pursuant to § 15-15A-10. The court may, on its own motion, protect financial documents that have been submitted without the Confidential Financial Documents Information Form.
(3) Names of any child under eighteen years of age alleged to be the victim of a crime in any adult criminal proceeding shall appear as initials only. The names shall be provided on a separate Confidential Information Form.
(4) Court records in which a child under eighteen years of age is identified as the petitioner or respondent in a protection order proceeding shall be treated as confidential and excluded from public access.
(5) Parties with cases filed prior to the effective date of this rule, or the court on its own, may, by motion, protect the privacy of confidential information as defined in § 15-15A-8. Parties filing this motion will submit a completed Confidential Information Form or Confidential Financial Documents Information Form as appropriate.
Source: SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005; SL 2006, ch 331 (Supreme Court Rule 06-57), eff. July 1, 2006; SL 2015, ch 270 (Supreme Court Rule 15-08), eff. July 1, 2015; SL 2021, ch 257 (Supreme Court Rule 21-05), eff. Jul. 1, 2021.
15-15A-10. Procedure for requesting access to confidential financial documents.
(1) Any person may file a motion, supported by affidavit showing good cause, for access to confidential financial documents. Written notice of the motion shall be required.
(2) If the person seeking access cannot locate a party to provide the notice required under this rule, after making good faith reasonable effort to provide such notice as required by applicable court rules, an affidavit may be filed with the court setting forth the efforts to locate the party and requesting waiver of the notice provisions of this rule. The court may waive the notice requirement of this rule if the court finds that further good faith efforts to locate the party are not likely to be successful.
(3) The court shall allow access to confidential financial documents, or relevant portions of the documents, if the court finds that the public interest in granting access or the personal interest of the person seeking access outweighs the privacy interests of the parties or dependent children. In granting access the court may impose conditions necessary to balance the interests consistent with this rule.
Source: SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005; SL 2006, ch 332 (Supreme Court Rule 06-58), eff. July 1, 2006.
15-15A-11. Requests for bulk distribution of court records.
Dissemination of bulk information for resale is prohibited pursuant to § 1-27-1. Any other bulk dissemination is prohibited except as authorized by the State Court Administrator or the Chief Justice of the Supreme Court.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SDCL § 15-15A-8; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005.
15-15A-12. Access to compiled information from court records.
(1) Compiled information is defined as information that is derived from the selection, aggregation or reformulation by the Supreme Court of some of the information from more than one individual court record.
(2) Any member of the public may request compiled information that consists solely of information that is publicly accessible and that is not already available in an existing report. The Supreme Court may compile and provide the information if it determines, in its discretion, that providing the information meets criteria established by the Court, that the resources are available to compile the information and that it is an appropriate use of public resources. The State Court Administrator's Office will make the initial determination as to whether to provide the compiled information.
(a) Compiled information that includes information to which public access has been restricted may be requested by any member of the public only for scholarly, journalistic, political, governmental, research, evaluation, or statistical purposes.
(b) The request shall a) identify what information is sought; b) describe the purpose for requesting the information and explain how the information will benefit the public interest or public education, and c) explain provisions for the secure protection of any information requested to which public access is restricted or prohibited.
(c) The Supreme Court may grant the request and compile the information if it determines that doing so meets criteria established by the Court, is consistent with the purposes of the access rules, that the resources are available to compile the information, and that it is an appropriate use of public resources.
(d) If the request is granted, the Supreme Court may require the requestor to sign a declaration that:
(i) The data will not be sold or otherwise distributed directly or indirectly, to third parties, except for journalistic purposes;
(ii) The information will not be used directly or indirectly to sell a product or service to an individual or the general public, except for journalistic purposes; and
(iii) There will be no copying or duplication of information or data provided other than for the stated scholarly, journalistic, political, governmental, research, evaluation, or statistical purpose.
The Supreme Court may make such additional orders as may be needed to protect information to which access has been restricted or prohibited.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SDCL § 15-15A-9; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005.
15-15A-13. Requests to prohibit public access to information in court records.
A request to prohibit public access to information in a court record may be made by any party to a case, the individual about whom information is present in the court record, or on the court's own motion. Notice of the request must be provided to all parties in the case and the court may order notice be provided to others with an interest in the matter. The court shall hear any objections from other interested parties to the request to prohibit public access to information in the court record. The court must decide whether there are sufficient grounds to prohibit access according to applicable constitutional, statutory and common law. In deciding this the court should consider the purpose of this rule as set forth in § 15-15A-1. In restricting access, the court will use the least restrictive means that will achieve the purposes of this access rule and the needs of the requestor.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SDCL § 15-15A-10; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005.
15-15A-14. When court records may be accessed.
(1) Court records will be available where available for public access in the courthouse during hours established by the court. Court records in electronic form to which the court allows remote access under this rule will be available for access at least during the hours established by the court for courthouse access, subject to unexpected technical failures or normal system maintenance announced in advance.
(2) Upon receiving a request for access to information the court will respond within a reasonable time regarding the availability of the information and provide the information within a reasonable time.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SDCL § 15-15A-11; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005.
15-15A-15. Fees for accessing court records.
The Supreme Court may charge a fee for access to and copies of court records in electronic form, for remote access or compiled information. The fee shall be reasonable and may include costs for labor, materials and supplies. Fees for record searches are set forth in § 16-2-29.5. Some entities, and other entities under certain conditions, are exempt from paying a record search fee pursuant to § 16-2-29. Copying and certification fees shall be charged as determined by statute or Supreme Court Rule.
Source: SL 2004, ch 333 (Supreme Court Rule 04-06), eff. July 1, 2004; SDCL § 15-15A-12; SL 2005, ch 291 (Supreme Court Rule 05-05), eff. Feb. 25, 2005.
_______________________________
Case No. _______________
Plaintiff/Petitioner
_______________________________
Defendant/Respondent
The information on this form is protected and shall not be placed in a publicly accessible
portion of the court record. The filing documents will be placed in the public part of the court
record devoid of this information.
| NAME |
SOCIAL SECURITY NUMBER, EMPLOYER
|
|
IDENTIFICATION NUMBER, TAXPAYER
|
|
|
IDENTIFICATION NUMBER, AND
|
|
|
FINANCIAL ACCOUNT NUMBERS
|
Defendant/Respondent
1. ___________________________________________________________________________
Other Parties (including minor children)
1. ___________________________________________________________________________
2. ___________________________________________________________________________
3. ___________________________________________________________________________
4. ___________________________________________________________________________
5. ___________________________________________________________________________
6. ___________________________________________________________________________
7. ___________________________________________________________________________
8. ___________________________________________________________________________
Information supplied: ____________________
Signed: ____________________
| Firm: | |
| Address: | |
| Date: |
Source: SL 2005, ch 291 (Supreme Court Rule 05-05), effective Feb. 25, 2005; SL 2006, ch 331
(Supreme Court Rule 06-57), eff. July 1, 2006.
CONFIDENTIAL FINANCIAL DOCUMENTS INFORMATION FORM
(Required by SDCL 15-15A-9)
_______________________________
Case No. ________________
Plaintiff/Petitioner
_______________________________
Defendant/Respondent
This form and the attached documents are protected and will be filed in a non-public part of
the record.
| Document | Period Covered | |
| Income Tax Returns | ||
| Financial Account Statements | ||
| Wage Stubs | ||
| Credit Card Account Statements | ||
| W2's and Schedules | ||
| Check Registers | ||
| Other (list below) | ||
Signed: _____________________
| Firm: | |
| Address: | |
| Date: |
Source: SL 2005, ch 291 (Supreme Court Rule 05-05), effective Feb. 25, 2005; SL 2006, ch 331 (Supreme Court Rule 06-57), eff. July 1, 2006.
15-15A-16. Access to certain court security information.
Any information maintained by the Unified Judicial System for safeguarding and enhancing court security is not accessible to the public unless authorized by an order of the court. This includes information pertaining to the protection of the public, court staff and public property such as:
a.Any vulnerability or threat assessments;
b.Response plans intended to prevent or mitigate criminal acts;
c.Emergency management or response protocols or standards;
d.Training materials or after-action reports for courthouse security training and assessment;
e.Intelligence information, complaints, and incident or threat reporting forms; and
f.Security manuals, standards, procedures, policies, or plans.
Source: SL 2022, ch 261 (Supreme Court Rule 22-08), eff. Feb. 28, 2022.
15-16-1
Judgment for possession or damages in action for recovery of personal property.
15-16-2
Delivery of possession to purchaser in judgment for sale of real property.
15-16-3
Interest added to money judgment.
15-16-4
Repealed.
15-16-5
Docketing of circuit court money judgment with clerk of courts.
15-16-6
Entry and indexing of judgments in judgment docket--Contents of entries.
15-16-7
Lien of docketed judgment on real property within county--Duration of lien.
15-16-8
Repealed.
15-16-9
Transcript and docketing of magistrate's judgment--Lien on real property--Docketing
in other counties.
15-16-10
Docket entry as to judgment stayed pending appeal--Lien suspended.
15-16-11
Assignment of judgment--Docket entry.
15-16-12
Leave of court required for action on judgment.
15-16-13
Action on magistrate's judgment prohibited within five years--Circumstances under
which action permitted.
15-16-14
Cancellation and discharge of judgment permitted on acknowledgment of
satisfaction.
15-16-15
Cancellation of judgment on return of satisfaction--Docket entry.
15-16-16
Partial satisfaction of judgment--Docket entry and partial discharge of liens.
15-16-17
Release of specific property from judgment lien--Docket entries.
15-16-18
Docket entries on court order discharging or canceling judgment.
15-16-19
Docket entries in other counties on judgment discharged or canceled on original
docket.
15-16-20 to 15-16-27. Repealed.
15-16-28
Docketing of federal court judgments--Effect.
15-16-29
Lien of federal court judgment.
15-16-30
Assignment of federal court judgment--Docket entry.
15-16-31
Discharge and cancellation of federal court judgments--Docket entry.
15-16-32
Setoff of mutual judgments.
15-16-33
Renewal of certain judgments by affidavit--Contents of affidavit.
15-16-34
Filing and docketing of affidavit of renewal--Copy.
15-16-35
Operation as judgment lien--Continuation of lien--Execution.
15-16-36
Incorporation in a judgment of original promissory note or other instrument of debt.
15-16-37
Application for discharge of civil judgment debt discharged in bankruptcy.
15-16-38
Contents of application--Service on judgment creditors.
15-16-39
Clerk to discharge judgment--Exception--Objection to discharge--Service.
15-16-40
Motion and order for discharge except to extent that debt not discharged in
bankruptcy.
15-16-41
Form of application for discharge of judgment.
15-16-42
Judgment ceases to be lien upon discharge.
15-16-43
Applicability to general judgment liens only.
15-16-44
Conditions for not recognizing out-of-country foreign judgments.
15-16-45
Criteria for recognition of out-of-country foreign judgments.
15-16-46
Required findings for recognition of out-of-country foreign defamation judgment.
15-16-47
Application of §§ 15-16-44 to 15-16-46.
15-16-1. Judgment for possession or damages in action for recovery of personal property.
In an action to recover the possession of personal property, the judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof in case a delivery cannot be had, and of damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof in case a return cannot be had, and damages for taking and withholding the same.
Source: SDC 1939 & Supp 1960, § 33.1709.
15-16-2. Delivery of possession to purchaser in judgment for sale of real property.
Every judgment that contains a direction for the sale of any specific real property may also direct the delivery of the possession of such property to the purchaser; and the officer receiving the execution or order of sale may enforce such judgment by putting the purchaser in possession of the premises, in like manner and with like authority as if special execution had been directed to him for that purpose.
Source: SDC 1939 & Supp 1960, § 33.1710.
15-16-3. Interest added to money judgment.
When a judgment is for the recovery of money, interest from the time of the verdict or decision until judgment be finally entered must be added to the judgment of the party entitled thereto.
Source: SDC 1939 & Supp 1960, § 33.1815.
15-16-5. Docketing of circuit court money judgment with clerk of courts.
A judgment of a circuit court directing in whole or in part the payment of money shall be docketed with the clerk of the court in which it was rendered and in any other county upon filing with the clerk of courts for that county a transcript of the original docket.
Source: SDC 1939 & Supp 1960, § 33.1717; SL 1983, ch 157, § 1.
15-16-6. Entry and indexing of judgments in judgment docket--Contents of entries.
The clerk shall docket the judgment by entering alphabetically in the judgment docket the names of the judgment debtor or debtors, and also alphabetically, the name of each party against whom a judgment for money or costs is rendered, the names of the party or parties in whose favor the judgment was rendered, the sum recovered or directed to be paid, in figures, the date of the judgment, the year, day, hour, and minute when the judgment or transcript was filed, the year, day, hour, and minute when the judgment was docketed in his office; the name of the court in which the judgment was rendered; the name of any attorneys for the party recovering the judgment, and if there are two or more judgment debtors, such entries shall be repeated under the initial letter of the surname of each.
Source: SDC 1939 & Supp 1960, § 33.1712; SL 1990, ch 149, § 5.
15-16-7. Lien of docketed judgment on real property within county--Duration of lien.
When a judgment has been docketed with a clerk of the circuit court, it shall be a lien on all the real property, except the homestead, in the county where the same is so docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the county where it was rendered, and no judgment shall become a lien on real property as herein provided unless it be docketed in the county where the land is situated.
Source: SDC 1939 & Supp 1960, § 33.1717.
15-16-9. Transcript and docketing of magistrate's judgment--Lien on real property--Docketing in other counties.
A magistrate, on the demand of a party in whose favor he shall have rendered a judgment must give a certified transcript thereof which shall be filed in the office of the clerk of courts of the county in which the judgment was rendered and such clerk must thereupon enter such judgment in the judgment books, and upon the judgment docket; and, from the time of the docketing thereof, it becomes a judgment of the circuit court and a lien upon real property, and a certified transcript of the docket of such judgment may be filed, and the judgment docketed accordingly in any other county with the same effect as if the judgment had been rendered in the circuit court where such judgment is so docketed.
Source: SDC 1939 & Supp 1960, § 33.1716; SL 1974, ch 153, § 8.
15-16-10. Docket entry as to judgment stayed pending appeal--Lien suspended.
Whenever an appeal from any judgment shall be pending and the undertaking requisite to stay execution on such judgment shall have been given and the appeal perfected as provided in this title, the court in which such judgment was recovered may, on motion, after notice to the person owning the judgment, direct the clerk to make an entry on the judgment docket that the judgment is secured on appeal, and thereupon it shall cease, during the pendency of the appeal, to be a lien on the real property of the judgment debtor as against purchasers and mortgagees in good faith and for value.
Source: SDC 1939 & Supp 1960, § 33.1717.
15-16-11. Assignment of judgment--Docket entry.
Every clerk of courts, upon the presentation to the clerk of an assignment of any judgment rendered or docketed in the office of the clerk of courts, signed by the party in whose favor the judgment is rendered, the party's personal representative, successor in interest, or the duly appointed agent for the specific purpose thereof and acknowledged in the manner prescribed by law for the acknowledgment of deeds, shall immediately note the fact of such assignment, the date thereof, and the name of the assignee upon the docket of such judgment.
Source: SDC 1939 & Supp 1960, § 33.1718; SL 1990, ch 149, § 4; SL 2011, ch 105, § 1.
15-16-12. Leave of court required for action on judgment.
No action shall be brought upon a judgment rendered in any court of this state, except a magistrate court, between the same parties, without leave of court for good cause shown, on notice to the adverse party.
Source: SDC 1939 & Supp 1960, § 33.0105; SL 1974, ch 153, § 9.
15-16-13. Action on magistrate's judgment prohibited within five years--Circumstances under which action permitted.
No action on a judgment rendered by a magistrate shall be brought in the same county, within five years after its rendition, except in case of his death, resignation, incapacity to act, or removal from the county, or if the process was not personally served on the defendant, or on all the defendants, or in case of the death of some of the parties, or where the docket or record of such judgment shall have been lost or destroyed.
Source: SDC 1939 & Supp 1960, § 33.0105; SL 1974, ch 153, § 10.
15-16-14. Cancellation and discharge of judgment permitted on acknowledgment of satisfaction.
Any judgment rendered or docketed in the circuit courts of this state may be canceled and discharged by the clerk thereof upon the filing with him of an acknowledgment of the satisfaction thereof signed by the party in whose favor the judgment was obtained, his attorney of record, his personal representative, or assignee, and duly acknowledged in the manner required to admit a deed of real property to record.
Source: SDC 1939 & Supp 1960, § 33.1719 (1).
15-16-15. Cancellation of judgment on return of satisfaction--Docket entry.
Upon the return of any execution, issued upon any judgment rendered or docketed in the circuit court, wholly satisfied or the presentation of a satisfaction piece duly executed and acknowledged as provided in § 15-16-14, to the clerk of any circuit court, he shall immediately note upon the judgment docket the date of such cancellation and the manner thereof, by satisfaction piece filed, execution returned satisfied, or otherwise.
Source: SDC 1939 & Supp 1960, § 33.1719 (2); SL 1990, ch 149, § 3.
15-16-16. Partial satisfaction of judgment--Docket entry and partial discharge of liens.
Any partial satisfaction of any judgment rendered or docketed in the circuit courts of this state may be made and noted upon the records in like manner; and thereupon all judgments and liens thereby created, must be taken and deemed to be canceled and discharged to the extent of the entries so made upon the judgment docket and no more.
Source: SDC 1939 & Supp 1960, § 33.1719 (3).
15-16-17. Release of specific property from judgment lien--Docket entries.
Upon the filing of any duly acknowledged release signed by the owner of the judgment as shown by the docket entry thereof, his successor in interest, or attorney of record, releasing any specific item or items of real or personal property from the lien and effect of such judgment, the clerk shall note the same on the docket entry of the judgment and such property shall thereupon be released from the lien and effect of the judgment accordingly without prejudice to the lien and effect of the judgment otherwise.
Source: SDC 1939 & Supp 1960, § 33.1719 (4).
15-16-18. Docket entries on court order discharging or canceling judgment.
Upon the filing of any order of the court in which a judgment was rendered, or of any other court which has acquired jurisdiction so to do, directing satisfaction, discharge, or cancellation of the judgment in whole or in part, the clerk shall note such order on the docket entry of the judgment and the same shall be satisfied, discharged, or canceled accordingly, subject to any appeal which may be available or pending from such order.
Source: SDC 1939 & Supp 1960, § 33.1719 (5).
15-16-19. Docket entries in other counties on judgment discharged or canceled on original docket.
The clerk of courts of any other county wherein any judgment canceled or discharged pursuant to §§ 15-16-14 to 15-16-18, inclusive, shall have been docketed must cancel the same in like manner upon his judgment docket, upon the filing in his office of a certified copy of the original judgment docket entry duly canceled as provided in said sections.
Source: SDC 1939 & Supp 1960, § 33.1719 (6).
15-16-20 to 15-16-27. Repealed by SL 2012, ch 110, §§ 8 to 15.
15-16-28. Docketing of federal court judgments--Effect.
The clerks of courts of this state are authorized and required to file and docket in their offices judgments and decrees of the district court of the United States within this state, and duly authenticated copies thereof, and transcripts therefrom in like manner as judgments and decrees of the circuit courts of this state are filed and docketed.
Source: SDC 1939 & Supp 1960, § 33.1715.
15-16-29. Lien of federal court judgment.
When judgments and decrees of the district court of the United States, or duly authenticated copies thereof, or transcripts therefrom containing the facts needed for a docket entry of a judgment or decree of the circuit courts of this state, are filed and docketed as provided in § 15-16-28, such judgments and decrees are liens to the same extent as judgments and decrees of the circuit courts of this state.
Source: SDC 1939 & Supp 1960, § 33.1715.
15-16-30. Assignment of federal court judgment--Docket entry.
Such judgments and decrees of the district court of the United States, filed and docketed pursuant to § 15-16-28, may be assigned of record by filing a copy thereof together with the assignment duly authenticated, or a transcript thereof containing the facts needed for a docket entry and the fact of assignment, date thereof, and name of assignee, duly authenticated, and the clerk shall note the facts of assignment on the docket.
Source: SDC 1939 & Supp 1960, § 33.1715.
15-16-31. Discharge and cancellation of federal court judgments--Docket entry.
Such judgments and decrees of the district court of the United States, filed and docketed pursuant to § 15-16-28, may be discharged and canceled of record by filing a copy thereof and of the fact of such discharge or cancellation, duly authenticated, or a transcript therefrom containing the facts needed for a docket entry, and the fact of discharge and cancellation, duly authenticated, and the clerk shall note the fact of such discharge and cancellation on the docket.
Source: SDC 1939 & Supp 1960, § 33.1715.
15-16-32. Setoff of mutual judgments.
Mutual final judgments may be set off, pro tanto, the one against the other by the court upon proper application and notice.
Source: SDC 1939 & Supp 1960, § 33.1720.
15-16-33. Renewal of certain judgments by affidavit--Contents of affidavit.
Any judgment which in whole or in part directs the payment of money and which may be docketed in the office of the clerk of any court in this state may be renewed by the affidavit of the judgment creditor or of his personal representative, agent, attorney, or assignee at any time prior to the expiration of ten years from the first docketing of such judgment. The affidavit shall be entitled as in the original judgment and shall set forth:
(1) The names of the parties plaintiff and defendant;
(2) The name of the court in which docketed;
(3) The date and amount of the original judgment;
(4) The name of the owner of said judgment, and, if not the party in whose name the judgment was entered, the source of his title thereto and a statement of each assignment of the judgment necessary to track the title thereof from the original judgment creditor;
(5) If the judgment was entered upon a certified transcript from any other court, a statement of this fact;
(6) A statement of each county in which a transcript of the judgment has been filed;
(7) A statement that no execution is outstanding and unreturned upon said judgment, or, if any execution is outstanding, that fact shall be stated;
(8) The date and amount of each payment upon the judgment, whether collected under execution or otherwise and that all payments have been duly credited upon said judgment, and whether any amount has been realized that has not been credited upon the records in the court in which the judgment was originally rendered, or in any other court to which it has been transcribed;
(9) That there are no offsets or counterclaims against the person for whose benefit the renewal is sought and in favor of the judgment debtor or debtors, or, if a counterclaim or offset does exist in favor of the judgment debtor, a statement of the amount, if ascertained or certain, and an offer to allow the same as a credit pro tanto upon the amount due from the judgment debtor, or, if the counterclaim or offset is unsettled or undetermined, by suit or otherwise, the same may be allowed as a payment or credit upon the judgment to the full amount which subsequently may be adjudged due the judgment debtor thereon;
(10) The exact amount due upon judgment, after allowing all offsets and counterclaims known to the affiant; and
(11) Any other facts or circumstances necessary to a complete disclosure as to the exact condition of the judgment.
Source: SL 1988, ch 176, § 1; SL 1990, ch 149, § 1.
15-16-34. Filing and docketing of affidavit of renewal--Copy.
If the judgment was rendered in a court of this state, the affidavit for renewal shall be filed with the clerk of the court where such judgment was first docketed. If the judgment filed and docketed was a foreign judgment, the affidavit for renewal may be filed with the clerk of any court where the judgment has been docketed. The clerk of the court immediately shall enter on the docket of the original judgment, the fact of renewal, the date of renewal, and the amount for which the judgment is renewed. The affidavit of renewal upon receipt by the clerk of the court shall be given a current filing date, and filed, docketed, and indexed in the current judgment records using the same method as for a newly received original judgment. A copy of the affidavit of renewal and the docket entries thereon, certified by the clerk of court wherein the same is filed, may be likewise filed and docketed and indexed in the current judgment records in any other county of the state in which a transcript of the original judgment was filed.
Source: SL 1988, ch 176, § 2; SL 1990, ch 149, § 2; SL 1993, ch 164.
15-16-35. Operation as judgment lien--Continuation of lien--Execution.
The entry and docketing of an affidavit of renewal of a judgment shall operate to continue the lien of the judgment to the extent of the balance due on the judgment as shown by the affidavit on all real property, except the homestead, of the judgment debtor or debtors in the county where the same is docketed which he or they may have at the time of such docketing or may acquire subsequently in such county, for a period of ten years from the time of the docketing of such affidavit. The filing of a certified copy of such affidavit of renewal and the docket entries thereon in a county wherein a transcript of the original judgment was docketed likewise shall continue and extend the lien of the judgment in such county. An execution may issue upon the judgment as renewed under the same conditions and with the same force and effect within such renewal period as upon the judgment originally rendered and entered at the date of such renewal, and all other remedies for the enforcement of judgments shall apply to the enforcement of such renewed judgment.
Source: SL 1988, ch 176, § 3.
15-16-36. Incorporation in a judgment of original promissory note or other instrument of debt.
The act of incorporating in a judgment the original promissory note or other instrument of debt merges it into that judgment.
Source: Supreme Court Rule 98-31.
15-16-37. Application for discharge of civil judgment debt discharged in bankruptcy.
Any person who has secured a discharge of a civil judgment debt pursuant to United States Code, Title 11, and any person interested in real property to which the judgment attaches may submit an application for a discharge of the judgment to the clerk of court in which the judgment was entered or transcribed.
Source: SL 2012, ch 110, § 1.
15-16-38. Contents of application--Service on judgment creditors.
An application under § 15-16-37 shall be sworn under oath and identify each judgment to be discharged, shall state that each judgment sought to be discharged was listed on the debtor's bankruptcy schedules, that no judgment sought to be discharged is nondischargeable under 11 USC § 523 or no order was entered by the bankruptcy court declaring any of the judgments nondischargeable, shall be accompanied by a certified copy of the judgment debtor's bankruptcy discharge, shall state the time the judgment creditor has to object as specified in § 15-16-39 and the grounds for objection as specified in § 15-16-40 and shall be served at the expense of the applicant on each judgment creditor either:
(1) In the manner provided for the service of a summons in a civil action accompanied by an affidavit of service; or
(2) By certified mail to the judgment creditor's last known address as it appears in the court record accompanied by an affidavit of mailing.
Source: SL 2012, ch 110, § 2; SL 2013, ch 97, § 1.
15-16-39. Clerk to discharge judgment--Exception--Objection to discharge--Service.
The clerk, without further notice or hearing, shall discharge each judgment except a judgment in favor of a judgment creditor who has filed an objection to discharge of the judgment within ten days after service of the application on the judgment creditor. Service shall be deemed effective from the date deposited in the U.S. mail or from the date of actual service. An objection to discharge of a judgment shall be served on the judgment debtor in the same manner as an answer in a civil action.
Source: SL 2012, ch 110, § 3.
15-16-40. Motion and order for discharge except to extent that debt not discharged in bankruptcy.
If a judgment creditor objects to the discharge of a judgment, on motion of the judgment debtor, the judgment creditor, or other interested party, the court shall order the judgment discharged except to the extent that the debt represented by the judgment was not discharged by the bankruptcy discharge.
Source: SL 2012, ch 110, § 4.
15-16-41. Form of application for discharge of judgment.
The application shall be in substantially the following form:
APPLICATION FOR DISCHARGE OF JUDGEMENT(S)
In the Matter of the Application of:
[Judgment Debtor(s)]
PLEASE NOTICE, the undersigned, acting for the judgement debtor(s) applies for the discharge of the following judgment(s) entered in [Name of County]:
[List judgments, including case number, creditor(s), date of docketing, and amount.]
A certified copy of the judgment debtor's bankruptcy discharge and an affidavit of service for each judgment creditor is attached.
Creditors Please Note: Pursuant to §§ [....], the clerk will discharge the judgment(s) listed within ten days after service of this application unless an objection to discharge is served on the judgment debtor(s) and filed with the clerk.
Creditors may object to discharge if the debt represented by the judgment was not discharged by the bankruptcy discharge.
Dated:
[Signature]
Judgment Debtor,
Person Interested in Real Property
or Attorney for Debtor or Person
Source: SL 2012, ch 110, § 5.
15-16-42. Judgment ceases to be lien upon discharge.
Upon the discharge of a judgment by the clerk pursuant to § 15-16-39, a judgment shall cease to be a lien on any real property that the person discharged in bankruptcy owns or later acquires.
Source: SL 2012, ch 110, § 6.
15-16-43. Applicability to general judgment liens only.
Nothing contained in §§ 15-16-38 to 15-16-42, however, may be construed to apply to any judgment which constituted a valid lien upon any specific property of such judgment debtor, as distinguished from the general judgment lien on real property.
Source: SL 2012, ch 110, § 7.
15-16-44. Conditions for not recognizing out-of-country foreign judgments.
An out-of-country foreign judgment need not be recognized and entitled to full faith and credit in the State of South Dakota, unless there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of the State of South Dakota should not allow it full effect.
Source: SL 2013, ch 98, § 1.
15-16-45. Criteria for recognition of out-of-country foreign judgments.
In deciding whether to enforce and recognize an out-of-country foreign judgment, the court shall consider the following factors when deciding whether to enforce and recognize a out-of-country foreign judgment, to wit:
(1) The foreign court actually had jurisdiction over both the subject matter and the parties;
(2) The judgment was not obtained fraudulently;
(3) The judgment was rendered by a system of law reasonably assuring the requisites of an impartial administration of justice which includes due notice and a hearing;
(4) The judgment did not contravene the public policy of the jurisdiction in which it is relied upon; and
(5) The jurisdiction issuing the order or judgment also grants comity to orders and judgments of South Dakota courts.
Source: SL 2013, ch 98, § 2.
15-16-46. Required findings for recognition of out-of-country foreign defamation judgment.
In matters concerning defamation, the court, before it recognizes an out-of-country foreign judgment, shall by clear and convincing evidence, find that the law applied in the foreign court's adjudication, which resulted in a judgment, provided at least as much protection for freedom of speech and the press as would be provided by the United States Constitution and the Constitution of the State of South Dakota, in addition to the criteria set forth in § 15-16-45.
Source: SL 2013, ch 98, § 3.
15-16-47. Application of §§ 15-16-44 to 15-16-46.
Sections 15-16-44 to 15-16-46, inclusive, apply to judgments rendered in defamation proceedings outside the United States before, on, or after July 1, 2013, but do not apply to any out-of-country foreign judgment already recognized by the courts of this state prior to July 1, 2013.
Source: SL 2013, ch 98, § 4.
15-16A-1
"Foreign judgment" defined.
15-16A-2
Filing of authenticated copy of foreign judgment--Treatment and effect.
15-16A-3
Fees payable.
15-16A-4
Affidavit of names and addresses.
15-16A-5
Notice to judgment debtor--Docket entry--Contents of notice--Notice by creditor--Clerk's failure to mail.
15-16A-6
Stay of enforcement pending appeal or during stay of execution--Proof of security.
15-16A-7
Stay of enforcement on showing of ground--Security.
15-16A-8
Right of action to enforce judgment preserved.
15-16A-9
Uniformity of interpretation.
15-16A-10
Citation of chapter.
15-16A-1. "Foreign judgment" defined.
As used in this chapter, "foreign judgment" shall mean any judgment, decree, or order of a court of the United States or any of the several states which is entitled to full faith and credit in this state.
Source: SL 1975, ch 160, § 1.
15-16A-2. Filing of authenticated copy of foreign judgment--Treatment and effect.
A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the clerk of any circuit court of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the circuit court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings for reopening, vacating, or staying as a judgment of a circuit court of this state and may be enforced or satisfied in like manner.
Source: SL 1975, ch 160, § 2.
15-16A-3. Fees payable.
Any person filing a foreign judgment shall pay to the clerk of courts the fee set by § 16-2-29. Fees for docketing, transcription, or other enforcement proceedings shall be the same as for judgments of the circuit court of this state.
Source: SL 1975, ch 160, § 5; SL 1984, ch 12, § 12.
15-16A-4. Affidavit of names and addresses.
At the time of the filing of the foreign judgment, the judgment creditor or his lawyer shall make and file with the clerk of courts an affidavit setting forth the name and last known post office address of the judgment debtor, and the judgment creditor.
Source: SL 1975, ch 160, § 3.
15-16A-5. Notice to judgment debtor--Docket entry--Contents of notice--Notice by creditor--Clerk's failure to mail.
Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post office address of the judgment creditor and the judgment creditor's lawyer, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
Source: SL 1975, ch 160, § 3.
15-16A-6. Stay of enforcement pending appeal or during stay of execution--Proof of security.
If the judgment debtor shows the circuit court that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.
Source: SL 1975, ch 160, § 4.
15-16A-7. Stay of enforcement on showing of ground--Security.
If the judgment debtor shows the circuit court any ground upon which enforcement of a judgment of any circuit court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.
Source: SL 1975, ch 160, § 4.
15-16A-8. Right of action to enforce judgment preserved.
The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this chapter remains unimpaired.
Source: SL 1975, ch 160, § 6.
15-16A-9. Uniformity of interpretation.
This chapter shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.
Source: SL 1975, ch 160, § 7.
15-16A-10. Citation of chapter.
This chapter may be cited as the Uniform Enforcement of Foreign Judgments Act.
Source: SL 1975, ch 160, § 8.
CHAPTER 15-17
RECOVERY OF DISBURSEMENTS
15-17-1 15-17-1 to 15-17-16. Repealed by SL 1992, ch 148, § 26
15-17-16.1 Imposition of costs and attorneys' fees on grant of mistrial.
15-17-17 15-17-17 to 15-17-35. Repealed by SL 1992, ch 148, § 26
15-17-36 Costs not an indemnity--Disbursements.
15-17-37 Prevailing party recovery--Taxation.
15-17-37.1 Interpreter or translator services--Payment.
15-17-38 Award of attorneys' fees--Taxed as disbursements.
15-17-39 Evidence of debt for attorneys' fees upon default or foreclosure against public policy--Exception.
15-17-40 Recovery limited.
15-17-41 Disbursements taxed against multiple parties.
15-17-42 Application of chapter.
15-17-43 Attorneys' fees allowable in hearing contesting validity of taxation of disbursements.
15-17-44 Taxation of disbursements--Discretion of court.
15-17-45 Reimbursement of plaintiff in action to recover funds misappropriated by public official.
15-17-46 Plaintiff's lien on recovery in taxpayer's action.
15-17-47 Judgment against surety where security for disbursements given.
15-17-48 Disbursements awarded against infant.
15-17-49 Disbursement against personal representative or trustee of express trust.
15-17-50 Expenses of requiring jury to report--Apportionment.
15-17-51 Liability of party for frivolous or malicious action.
15-17-51.1 Inmate financial responsibility for state's costs incurred from abuse of court system.
15-17-51.2 Inmate or prisoner financial responsibility for costs incurred by county from abuse of court system.
15-17-52 Limit of taxation of disbursements.
15-17-53 Reduction or disallowance of disbursements for hardship.
15-17-54 New trial--Taxation of disbursements.
15-17-55 Reversal upon appeal--Taxation of disbursements.
15-17-56 Disbursements taxed by party not prevailing on appeal--Discretion of court.
15-17-57 Disbursements taxed when appeal affirmed in part and reversed in part--Discretion of court.
15-17-58 Reconsideration of disbursements upon Supreme Court ruling--Discretion of court.
15-17-59 Dismissal for lack of jurisdiction--Disbursements.
15-17-60 Disbursements caused by postponement of trial.
15-17-16.1. Imposition of costs and attorneys' fees on grant of mistrial.
When a motion for mistrial is made successfully in any civil action, the court may impose against the party intentionally causing the mistrial the jury costs and attorneys' fees together with such other costs as may be appropriate.
Source: SL 1986, ch 164.
15-17-36. Costs not an indemnity--Disbursements.
The concept of costs as an indemnity to be recovered by a prevailing party is abolished in the courts of South Dakota. Whenever the term, costs, is used, it means disbursements as defined in § 15-17-37.
Source: SL 1992, ch 148, § 1.
15-17-37. Prevailing party recovery--Taxation.
The prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial. Such expenditures include costs of telephonic hearings, costs of telephoto or fax charges, fees of witnesses, interpreter or translator expenditures not otherwise covered pursuant to § 15-17-37.1, officers, printers, service of process, filing, expenses from telephone calls, copying, costs of original and copies of transcripts and reporter's attendance fees, and court appointed experts. These expenditures are termed "disbursements" and are taxed pursuant to § 15-6-54(d).
Source: SL 1992, ch 148, § 2; SL 2021, ch 87, § 1.
15-17-37.1. Interpreter or translator services--Payment.
When a witness or party needs a language interpreter or translator in a civil action or special proceeding, the court shall procure and appoint a disinterested interpreter or translator. The interpreter or translator shall be compensated for services provided in the court proceeding that the court certifies to be reasonable and just. The payment for the services of the interpreter or translator shall be made from funds appropriated for the operation of the courts. A civil action for purposes of this section does not include abuse and neglect, juvenile, involuntary commitment, mental illness, or protection order proceedings.
Source: SL 2021, ch 87, § 2.
15-17-38. Award of attorneys' fees--Taxed as disbursements.
The compensation of attorneys and counselors at law for services rendered in civil and criminal actions and special proceedings is left to the agreement, express or implied, of the parties. However, attorneys' fees may be taxed as disbursements if allowed by specific statute. The court, if appropriate, in the interests of justice, may award payment of attorneys' fees in all cases of divorce, annulment of marriage, determination of paternity, custody, visitation, separate maintenance, support, or alimony. The court may award the fees before or after judgment or order. The court may award attorneys' fees from trusts administered through the court as well as in probate and guardianship proceedings. Attorneys' fees may be taxed as disbursements on mortgage foreclosures either by action or by advertisement.
Source: SL 1992, ch 148, § 3; SL 2006, ch 111, § 1.
15-17-39. Evidence of debt for attorneys' fees upon default or foreclosure against public policy--Exception.
Any provision contained in any note, bond, mortgage, or other evidence of debt that provides for payment of attorneys' fees in case of default of payment or foreclosure is against public policy and void, except as authorized by specific statute.
Source: SL 1992, ch 148, § 4; SL 1993, ch 165.
15-17-40. Recovery limited.
The prevailing party may recover disbursements once, even though he may prevail on several counts or claims in a civil action or special proceeding.
Source: SL 1992, ch 148, § 5.
15-17-41. Disbursements taxed against multiple parties.
In a civil action or special proceeding, in which there are several parties, not united in interest, making separate claims or separate answers, if a party prevails, he may tax disbursements against the parties against whom he has successfully claimed or defended.
Source: SL 1992, ch 148, § 6.
15-17-42. Application of chapter.
This chapter applies to any civil action or special proceeding in which the State of South Dakota or any of its divisions, departments or political subdivisions is a party including counties, municipalities, school districts, townships, and other governmental entities.
Source: SL 1992, ch 148, § 7.
15-17-43. Attorneys' fees allowable in hearing contesting validity of taxation of disbursements.
A circuit court may allow attorneys' fees to the prevailing party in a hearing contesting the validity of the taxation of disbursements pursuant to § 15-6-54(d) if it finds the taxation or part of the taxation of the disbursements was without legal basis or the contestation or part of the contestation of the taxation of the disbursements was without legal basis.
Source: SL 1992, ch 148, § 8.
15-17-44. Taxation of disbursements--Discretion of court.
If there is no specific statutory authorization allowed for taxation of disbursements in a civil action or special proceeding, taxation of disbursements may be allowed in the discretion of the court.
Source: SL 1992, ch 148, § 9.
15-17-45. Reimbursement of plaintiff in action to recover funds misappropriated by public official.
A circuit court, in the event of a recovery by plaintiff, may award a reasonable sum to reimburse the plaintiff for expenses, including attorneys' fees, in an action brought by a taxpayer on behalf of himself and other taxpayers similarly situated, to recover into the treasury of the state, school district, city, county, or other government entity, funds wrongfully expended, misappropriated, or misapplied by a governing body or public official.
Source: SL 1992, ch 148, § 10.
15-17-46. Plaintiff's lien on recovery in taxpayer's action.
The plaintiff in an action referred to in § 15-17-45 shall acquire a lien for the amount awarded by the court against any judgment that may be recovered in the action. Satisfaction of the lien shall be made from the proceeds collected on the judgment and may not be claimed against the governmental entity.
Source: SL 1992, ch 148, § 11.
15-17-47. Judgment against surety where security for disbursements given.
After final judgment in a civil action or proceeding in which security for disbursements has been given as required by law, the circuit court, upon motion of the defendant or other person having a right to all or part of the disbursements, may enter a judgment against the surety and against his personal representatives, for the amount of the disbursements or as much as may be unpaid.
Source: SL 1992, ch 148, § 12.
15-17-48. Disbursements awarded against infant.
If disbursements are awarded or taxed against an infant plaintiff, the guardian, by whom he appeared in the action, is responsible for them.
Source: SL 1992, ch 148, § 13.
15-17-49. Disbursement against personal representative or trustee of express trust.
In a civil action or special proceeding prosecuted or defended by a personal representative, trustee of an express trust, or a person expressly authorized by statute, disbursements may be taxed as in other civil actions or special proceedings, but the disbursements are chargeable only against the estate, fund, or party represented consistent with chapter 55-2.
Source: SL 1992, ch 148, § 14.
15-17-50. Expenses of requiring jury to report--Apportionment.
If a civil jury case is settled within forty-eight hours, or such other time as fixed by the court, of the time the jury is scheduled to report, the trial court may impose against one or all parties the expenses of requiring the jury to report, together with other items as may be appropriate. The court may apportion the expenses.
Source: SL 1992, ch 148, § 15.
15-17-51. Liability of party for frivolous or malicious action.
If a civil action, including an action for appeal of a zoning decision, or special proceeding is dismissed or requested relief is denied and if the court determines that it was frivolous or brought for malicious purposes, the court shall order the party whose claim, cause of action, or defense was dismissed or denied to pay part or all expenses incurred by the party defending the matter, including reasonable attorneys' fees.
Source: SL 1992, ch 148, § 16; SL 1997, ch 113, § 1; SL 2015, ch 114, § 1.
15-17-51.1. Inmate financial responsibility for state's costs incurred from abuse of court system.
If a court finds that an inmate has acted in a manner specified by the provisions of § 24-2-29.1, the court shall order the inmate plaintiff to pay the costs incurred by the person or the state in defending the cause of action, including reasonable attorney's fees.
Source: SL 1997, ch 147, § 2.
15-17-51.2. Inmate or prisoner financial responsibility for costs incurred by county from abuse of court system.
If a court finds that an adult inmate or prisoner has acted in a manner specified by the provisions of § 24-2-29.1 in a county or regional jail, the court shall order the inmate or prisoner plaintiff to pay the costs incurred by the person or the county in defending the cause of action, including reasonable attorney's fees.
Source: SL 1997, ch 147, § 4.
15-17-52. Limit of taxation of disbursements.
The court may limit the taxation of disbursements in the interests of justice.
Source: SL 1992, ch 148, § 17.
15-17-53. Reduction or disallowance of disbursements for hardship.
The court may reduce or disallow a taxation of disbursements that would be oppressive or work a hardship.
Source: SL 1992, ch 148, § 18.
15-17-54. New trial--Taxation of disbursements.
If a new trial is granted, the prevailing party may tax his disbursements as if he would have prevailed at the trial.
Source: SL 1992, ch 148, § 19.
15-17-55. Reversal upon appeal--Taxation of disbursements.
If a case is reversed upon appeal, the prevailing party may tax his disbursements as if he would have prevailed at trial. The prevailing party may also tax, as his disbursements, the expenses of a shorthand reporter's transcript necessarily procured for the purpose of the settled record.
Source: SL 1992, ch 148, § 20.
15-17-56. Disbursements taxed by party not prevailing on appeal--Discretion of court.
Disbursements taxed by a party, in the trial court, who did not prevail on appeal, are void. The trial court may, in its discretion, in the interest of justice, allow the taxation of disbursements by a party who prevailed in the trial court but lost the appeal.
Source: SL 1992, ch 148, § 21.
15-17-57. Disbursements taxed when appeal affirmed in part and reversed in part--Discretion of court.
If an appeal is affirmed in part and reversed in part, disbursements taxed in the trial court are vacated. The trial court may, in its discretion, in the interest of justice, allow or apportion the taxation of disbursements by any party after remand of an appeal which has been affirmed in part and reversed in part by the Supreme Court.
Source: SL 1992, ch 148, § 22.
15-17-58. Reconsideration of disbursements upon Supreme Court ruling--Discretion of court.
If the Supreme Court rules other than affirmance, reversal, or affirmance in part and reversal in part, the circuit court, may in its discretion, in the interest of justice, reconsider any disbursements that have been taxed, and may, in its discretion, in the interest of justice, allow the taxation of disbursements by a party.
Source: SL 1992, ch 148, § 23.
15-17-59. Dismissal for lack of jurisdiction--Disbursements.
If a civil action or special proceeding is dismissed for lack of jurisdiction, the prevailing party may tax disbursements.
Source: SL 1992, ch 148, § 24.
15-17-60. Disbursements caused by postponement of trial.
If a motion is made to a court or referee to postpone a trial, the payment of disbursements caused by the postponement may be awarded in the discretion of the court or referee as a condition of granting the postponement.
Source: SL 1992, ch 148, § 25.
15-18-1
Writ of execution permitted within twenty years after judgment.
15-18-2
Judgments for money or delivery of property executed against property--Additional
execution against person.
15-18-3
Order and cause of arrest required for execution against person of debtor.
15-18-4
Directions in writ to enforce judgment requiring sale of property--Issue to referee, sheriff
or constable.
15-18-5
Signature, attestation, and sealing of writ of execution--Officer defined.
15-18-6
Reference in writ to judgment and record information.
15-18-7
Direction in writ to satisfy judgment from debtor's property.
15-18-8
Direction in writ to satisfy judgment from property held by successors, tenants, or trustees.
15-18-8.1
Execution upon bank asset.
15-18-9
Direction in writ to arrest and commit debtor.
15-18-10
Directions in writ on judgment for delivery of personal property--Recovery of costs and
damages.
15-18-11
Judgment included in writ requiring sale of property.
15-18-12
Execution directing application of principal debtor's property before that of surety.
15-18-13
Officer to whom execution issued--Issue at same time in different counties--Real property
sold in county where it lies.
15-18-14
Power of officer to execute writ according to terms.
15-18-15
Endorsement of receipt of writ by officer--Diligent execution--Return of execution.
15-18-16
Payment by debtor to officer holding execution--Officer's receipt as discharge.
15-18-17
Property subject to levy on execution.
15-18-18
Levy not required for sale of property taken by earlier process.
15-18-19
Money under control of court applied to satisfaction by terms of judgment.
15-18-20
Levy on personal property capable of manual delivery.
15-18-21
Levy on judgment--Notice to parties.
15-18-22
Levy on real property--Recording of notice.
15-18-23
Levy on personal property which cannot be moved--Recording of notice.
15-18-24
Levy on domestic animals running at large--Notice to person in possession.
15-18-25
Receipt, entry and indexing of notices filed with register of deeds.
15-18-26
Immovable property and range animals taken into custody--Additional costs not allowed.
15-18-27
Levy on other personal property or demand.
15-18-28
Selection of property likely to bring amount required--Additional levies if required.
15-18-29
Additional levies if amount produced on sale insufficient.
15-18-30
Levy as lien on personal property.
15-18-31
Adverse claim to property levied on--Trial by special jury--Payment and deposit of fees.
15-18-32
Abandonment of execution--Discharge of levies--Subsequent executions.
15-18-33
Partial abandonment of execution--Subsequent executions.
15-18-34
Collection or sale of property levied on.
15-18-35
Money and receivables appropriated to judgment without sale.
15-18-36
Receivables subject to sale or appropriation--Assignment and delivery by officer.
15-18-37
Levy continues against property unsold--New sale or new execution.
15-18-38
Payment of execution proceeds to judgment creditor.
15-18-39
Surplus applied to other executions against debtor.
15-18-40
Surplus deposited in court--Notice to debtor.
15-18-1. Writ of execution permitted within twenty years after judgment.
The party in whose favor judgment has been given, or, in case of his death or disability or incapacity, his personal representative may, at any time within twenty years after the entry of judgment, proceed to enforce the same by writ of execution, as provided in this title.
Source: SDC 1939, § 33.1901; SL 1939, ch 131; SL 1947, ch 155.
15-18-2. Judgments for money or delivery of property executed against property--Additional execution against person.
When a judgment requires the payment of money or the delivery of real or personal property, it shall be enforced by execution against the property of the defendant. If it be in an action in which the defendant might have been arrested, it may also be enforced by an execution against the person of the judgment debtor as provided in § 15-18-3.
Source: SDC 1939 & Supp 1960, § 33.1902.
15-18-3. Order and cause of arrest required for execution against person of debtor.
No execution shall issue against the person of a judgment debtor unless an order of arrest has been served as provided in this code, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by chapter 15-22.
Source: SDC 1939 & Supp 1960, § 33.1902.
15-18-4. Directions in writ to enforce judgment requiring sale of property--Issue to referee, sheriff or constable.
When a judgment requires the sale of property described therein, the same may be enforced by a writ reciting such judgment, or the material parts thereof, and directing the proper officer to execute the judgment by making the sale and applying the funds in conformity with its mandate. Such a judgment may direct that execution issue to a referee appointed by the court and named in the judgment, or to the sheriff or constable of the county in which the property described therein, or some part of it, is located. The sheriff, constable, or referee, hereinafter referred to as an officer, must execute a certificate of sale to the purchaser as provided in chapter 15-19.
Source: SDC 1939 & Supp 1960, § 33.1903; SL 1973, ch 126, § 2.
15-18-5. Signature, attestation, and sealing of writ of execution--Officer defined.
The writ of execution shall be issued in the name of the State of South Dakota, attested in the name of the judge or the presiding judge, if there is one, sealed with the seal of the court, and subscribed by the clerk, and directed to an officer qualified to execute it. If issued from the court of a magistrate, it shall be signed by the magistrate or clerk and no seal is required. For purposes of this chapter, the term "officer" means sheriff, constable, or referee appointed by the court either in the judgment or by motion after notice following judgment.
Source: SDC 1939 & Supp 1960, § 33.1904; SL 1974, ch 153, § 13; SL 1985, ch 162; SL 1986, ch 165.
15-18-6. Reference in writ to judgment and record information.
The writ of execution shall intelligently refer to the judgment, stating the court, the county where the judgment or transcript is filed, the names of the parties, the amount of the judgment, if it be for money, and the amount actually due thereon, and the time of docketing in the county to which the execution is issued.
Source: SDC 1939 & Supp 1960, § 33.1904; SL 1990, ch 149, § 11.
15-18-7. Direction in writ to satisfy judgment from debtor's property.
The writ of execution, if it be against the property of the judgment debtor, shall require the officer substantially to satisfy the judgment with interest and accruing costs out of the property of such debtor.
Source: SDC 1939 & Supp 1960, § 33.1904 (1).
15-18-8. Direction in writ to satisfy judgment from property held by successors, tenants, or trustees.
The writ of execution, if it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, or tenants of real property or trustees, shall require the officer substantially to satisfy the judgment out of such property.
Source: SDC 1939 & Supp 1960, § 33.1904 (2).
15-18-8.1. Execution upon bank asset.
Judgments, liens, or attachments shall not be executed upon any asset of a bank until the time for appeal has expired.
Source: SL 1988, ch 377, § 78A.
15-18-9. Direction in writ to arrest and commit debtor.
The writ of execution, if it be against the person of the judgment debtor, shall require the officer substantially to arrest such debtor and commit him to the jail of the county until he shall pay the judgment, or be discharged according to law.
Source: SDC 1939 & Supp 1960, § 33.1904 (3).
15-18-10. Directions in writ on judgment for delivery of personal property--Recovery of costs and damages.
An execution issued upon a judgment for the delivery of the possession of personal property shall substantially require the officer to deliver the possession of the same, particularly describing it, to the party entitled thereto; and may, at the same time, require the officer to satisfy any costs or damages recovered by the judgment out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered to be specified therein if a delivery cannot be had.
Source: SDC 1939 & Supp 1960, § 33.1904 (4).
15-18-11. Judgment included in writ requiring sale of property.
If it be in execution of a judgment requiring the sale of specific property, an execution shall include a copy of the judgment or the material parts thereof.
Source: SDC 1939 & Supp 1960, § 33.1904 (5).
15-18-12. Execution directing application of principal debtor's property before that of surety.
In all cases where judgment is rendered upon any instrument in writing in which two or more persons are severally bound, and it shall be made to appear to the court, by parol or other testimony, that one or more of said persons so bound signed the same as surety or bail for his codefendant, the court must in entering the judgment thereon state which of the defendants is principal debtor and which are sureties or bail. An execution issued on such judgment must command the sheriff or other officer to cause the money to be made out of the property of the principal debtor, but, for want of sufficient property of the principal debtor to make the same, to cause the same to be made out of the property of the surety or bail. In all cases the property, both real and personal, of the principal debtor, within the jurisdiction of the court must be exhausted before any of the property of the surety or bail shall be taken in execution.
Source: SDC 1939 & Supp 1960, § 33.1905.
15-18-13. Officer to whom execution issued--Issue at same time in different counties--Real property sold in county where it lies.
When the execution is against the property of the judgment debtor, it may be issued to an officer of any county where the judgment is docketed, but it must be issued from the county where the judgment was rendered. When it requires the delivery of real or personal property, it must be issued to an officer of the county where the property, or some part thereof, is situated. Executions may be issued at the same time to different counties. Real property levied upon must be sold in the county wherein it lies, by an officer of such county who must execute a certificate of sale to the principal as provided in chapter 15-19.
Source: SDC 1939 & Supp 1960, § 33.1902; SL 1973, ch 126, § 3; SL 1987, ch 398 (Supreme Court Rule 86-24).
15-18-14. Power of officer to execute writ according to terms.
When a writ, warrant, or execution is placed in the hands of an officer, he shall have power and authority to execute the same according to its mandate and the law, and he shall be required to do so.
Source: SDC 1939 & Supp 1960, § 33.1907.
15-18-15. Endorsement of receipt of writ by officer--Diligent execution--Return of execution.
When a writ, warrant, or execution is delivered to any officer he must endorse thereon the day and hour when he receives it. He must proceed to execute the same with diligence. If executed, an exact description of the property seized with the date of levy, sale, or other act done by virtue thereof, must be endorsed upon or appended to the execution. If the writ was not executed, or executed in part only, the reason therefor must be stated in the return. The failure or neglect of the officer to make his return thereon as required by law shall not void his proceedings.
Source: SDC 1939 & Supp 1960, § 33.1908.
15-18-16. Payment by debtor to officer holding execution--Officer's receipt as discharge.
After the issuing of execution against property any person indebted to the judgment debtor may pay to the officer the amount of such indebtedness, or so much thereof as is necessary to satisfy the execution, and the officer's receipt shall be sufficient discharge thereof, except in cases of negotiable instruments which the officer does not have in possession.
Source: SDC 1939 & Supp 1960, § 33.1918; SL 1973, ch 126, § 4.
15-18-17. Property subject to levy on execution.
All property and interests therein and rights appurtenant thereto, tangible or intangible, including shares or interests in any corporations, credits, choses in action, and whether capable of manual delivery or not, belonging to the party against whom the execution was issued, and not exempt by law may be taken on execution and sold or otherwise applied to the satisfaction of the judgment as provided by law.
Source: SDC 1939 & Supp 1960, § 33.1911.
15-18-18. Levy not required for sale of property taken by earlier process.
In all cases where property or any interest therein has been levied upon or impounded by attachment, garnishment, or other mesne process, or where the property consists of personal property in the possession of a party or a receiver appointed in the action, who is foreclosing a lien thereon, or where it consists of real estate and the action involves the foreclosing of a lien thereon, no levy shall be required for the sale thereof, but the officer may make sale and return thereon pursuant to the judgment and execution issued thereon.
Source: SDC 1939 & Supp 1960, § 33.1912.
15-18-19. Money under control of court applied to satisfaction by terms of judgment.
In cases where the property consists of money under control of the court, the judgment may order the application of it toward satisfaction thereof and all persons having custody or control of such money shall be authorized so to apply it upon receipt of a certified copy of such judgment.
Source: SDC 1939 & Supp 1960, § 33.1912.
15-18-20. Levy on personal property capable of manual delivery.
A levy under a writ, warrant, or execution upon personal property capable of manual delivery, including bonds, promissory notes, or other instruments for the payment of money must be made by taking the same into the officer's actual custody. He must thereupon without delay deliver a notice of levy to the person from whose custody such property is taken.
Source: SDC 1939 & Supp 1960, § 33.1913 (3); SL 1973, ch 126, § 5.
15-18-21. Levy on judgment--Notice to parties.
A levy under a writ, warrant, or execution upon a judgment, must be made by serving a notice of levy upon the clerk of the court in which it is docketed, describing the judgment by the title of its action, date, amount, book, and page of docketing, and by mailing copies of such notice of attachment by registered or certified mail to the judgment debtor, and the present owner of the judgment as shown by the docket, and to their attorneys of record, if any, at their last known post office addresses.
Source: SDC 1939 & Supp 1960, § 33.1913 (4).
15-18-22. Levy on real property--Recording of notice.
A levy under a writ, warrant, or execution upon real property, must be made by the officer filing with the register of deeds of the county in which the property is situated, a notice of the levy subscribed by him, stating the names of the parties to the action, the amount of the plaintiff's claim as stated in the execution, and a description of the property levied upon, which notice must be recorded and indexed by the register of deeds in like manner and in the same book as a notice of the pendency of an action.
Source: SDC 1939 & Supp 1960, § 33.1913 (1); SL 1973, ch 126, § 6.
15-18-23. Levy on personal property which cannot be moved--Recording of notice.
A levy under a writ, warrant, or execution upon personal property which by reason of its bulk or other cause cannot be conveniently removed, must be made by the officer filing with the register of deeds a notice of the same kind as described in § 15-18-22; and such levy shall be equally valid and effectual as if the articles had been seized and the possession and control thereof retained by the officer.
Source: SDC 1939 & Supp 1960, § 33.1913 (2); SL 1973, ch 126, § 7.
15-18-24. Levy on domestic animals running at large--Notice to person in possession.
A levy under a writ, warrant, or execution upon domestic animals, must be made by the officer filing with the register of deeds of the county in which such property is running at large a notice of the same kind as described in § 15-18-22, and mailing a copy to the person in possession of such animals, specifying the number as near as may be and containing a description of same by marks and brands, if any; and such levy shall be equally valid and effectual as if such animals had been seized and the possession and control thereof retained by the officer.
Source: SDC 1939 & Supp 1960, § 33.1913 (2); SL 1973, ch 126, § 8.
15-18-25. Receipt, entry and indexing of notices filed with register of deeds.
The register of deeds shall receive and file all notices under §§ 15-18-23 and 15-18-24, numbering the same consecutively, keep the same in his office in regular and orderly files, and shall make entry thereof in the book kept for the registry of personal property instruments in the order in which they are received, which entry shall contain in separate columns the names of the defendants alphabetically arranged, the names of the plaintiffs, the number endorsed upon the notice, the amount claimed by the plaintiff and the time of filing.
Source: SDC 1939 & Supp 1960, § 33.1913 (2).
15-18-26. Immovable property and range animals taken into custody--Additional costs not allowed.
Notwithstanding the provisions of §§ 15-18-23 to 15-18-25, inclusive, a levy may, by direction of the plaintiff or his attorney, be made upon the property mentioned in said sections in accordance with § 15-18-20; but if additional costs are made by such a levy the same shall not be allowed to the plaintiff, if in the judgment of the court the taking of the property into the custody of the sheriff was unnecessary.
Source: SDC 1939 & Supp 1960, § 33.1913 (2).
15-18-27. Levy on other personal property or demand.
A levy under a writ, warrant, or execution upon other personal property, must be made by leaving a notice of levy showing the property levied upon with the person holding the same; or, if it consists of a demand other than specified in §§ 15-18-20 and 15-18-21, with the person against whom it exists.
Source: SDC 1939 & Supp 1960, § 33.1913 (5).
15-18-28. Selection of property likely to bring amount required--Additional levies if required.
The officer must in all cases select such property, and in such quantities as will be likely to bring the amount required to be raised, and having made one levy, may, at any time thereafter make other levies if he deems it necessary.
Source: SDC 1939 & Supp 1960, § 33.1914.
15-18-29. Additional levies if amount produced on sale insufficient.
If the property taken under a levy does not on a sale thereof produce a sum sufficient to satisfy such execution, the officer must proceed to make an additional levy on which he shall proceed as on other executions.
Source: SDC 1939 & Supp 1960, § 33.1914.
15-18-30. Levy as lien on personal property.
When the officer has made a levy upon any personal property pursuant to the provisions of this code, he shall have a lien thereon for all purposes essential to carrying out the execution, but no execution shall constitute any lien upon personal property until an actual levy upon such property has been made thereunder.
Source: SDC 1939 & Supp 1960, § 33.1915.
15-18-31. Adverse claim to property levied on--Trial by special jury--Payment and deposit of fees.
If the property levied on be claimed by a third person as his property, the officer may summon from his county six persons qualified as jurors to try the validity of the claim. He must also give notice of the claim and of the time of trial to the plaintiff, who may appear and contest the claim before the jury. The jury and the witnesses must be sworn by the officer; and if their verdict be in favor of the claimant the officer may relinquish the levy unless the judgment creditor give him a sufficient indemnity for proceeding thereon. The fees of the jury, the officer, and the witnesses must be paid by the claimant if the verdict be against him; otherwise by the plaintiff. Each party must deposit with the officer, before the trial, the amount of his fees, and the fees of the jury, and the officer must return to the prevailing party the amount so deposited by him.
Source: SDC 1939 & Supp 1960, § 33.1921; SL 1973, ch 126, § 9.
15-18-32. Abandonment of execution--Discharge of levies--Subsequent executions.
The party for whom the execution was issued or the party's attorney of record, or otherwise authorized, may abandon proceedings under any execution at any time by filing with the court from which issued a written statement of such abandonment, or by causing the writ to be returned and filed with an endorsement to the effect that it had been so abandoned, and by paying the costs of such execution and proceedings thereunder, including any actual out-of-pocket expenses and reasonable costs incurred by the sheriff, and by discharging of record any notice of levy which has been filed in any recording or registry office, and by releasing any property seized thereunder. All proceedings, notices, levies, and liens taken pursuant to such execution shall be deemed abandoned, discharged, and released upon the filing of such statement or endorsement. The abandonment of an execution as herein permitted shall be without prejudice to the issue of subsequent executions.
Source: SDC 1939 & Supp 1960, § 33.1910; SL 2007, ch 129, § 1.
15-18-33. Partial abandonment of execution--Subsequent executions.
The party for whom the execution was issued or his attorney of record, or otherwise authorized, may likewise abandon an execution after it has been partially enforced or performed, or after a portion of his claim or other demand has been satisfied, by the same procedure as is provided in § 15-18-32, stating in his statement of such partial abandonment, or report, or return with the writ, the extent to which his claim or demand has been satisfied, and the extent remaining unsatisfied. Such partial abandonment shall not affect the right of such party or other persons interested to have subsequent executions issued.
Source: SDC 1939 & Supp 1960, § 33.1910.
15-18-34. Collection or sale of property levied on.
After making levy thereon an officer may collect things in action by suit in his own name, or by selling the same at public sale.
Source: SDC 1939 & Supp 1960, § 33.1917.
15-18-35. Money and receivables appropriated to judgment without sale.
Money levied upon may be appropriated without being advertised or sold. The same may be done with bank bills, drafts, promissory notes, judgments, or other papers of like character, if the plaintiff will receive them at their full market value as cash, or if the officer can exchange them for cash at that value.
Source: SDC 1939 & Supp 1960, § 33.1916.
15-18-36. Receivables subject to sale or appropriation--Assignment and delivery by officer.
Judgments, bank bills, and other things in action may be sold at public sale, or appropriated as provided by § 15-18-35, and assignment and delivery thereof by the officer shall have the same effect as if made by the defendant.
Source: SDC 1939 & Supp 1960, § 33.1917.
15-18-37. Levy continues against property unsold--New sale or new execution.
When property is unsold for want of bidders, the levy still holds good; and if there be sufficient time it may again be advertised or the execution returned, and one issued again commanding the officer to sell such property.
Source: SDC 1939 & Supp 1960, § 33.1919.
15-18-38. Payment of execution proceeds to judgment creditor.
After first paying his costs and expenses the officer shall pay to the judgment creditor the proceeds of sale, or of moneys appropriated, or so much thereof as will satisfy the execution.
Source: SDC 1939 & Supp 1960, § 33.1920.
15-18-39. Surplus applied to other executions against debtor.
If there be any surplus and if the officer has other unsatisfied executions against the debtor, he may apply such surplus towards satisfaction of the same in the order of their respective priorities and account for any final surplus as provided in § 15-18-40.
Source: SDC 1939 & Supp 1960, § 33.1920.
15-18-40. Surplus deposited in court--Notice to debtor.
If there be any surplus, and the officer has no other executions against the debtor, the officer shall forthwith deposit it in the court from which the execution issued and notify the execution debtor by registered or certified mail at his last known post office address of such deposit, and make report thereof in his return of the execution.
Source: SDC 1939 & Supp 1960, § 33.1920.
15-18-41. Time of return of execution--Extension where levy made.
The execution must be returned within sixty days after its receipt by the officer, and filed in the office of the court or its clerk. If within said sixty days the officer shall have levied under said execution, the time for return is extended for sixty days from the date of such levy and, if an additional or several levies be made, it is extended for a period of sixty days after the date of the last levy.
Source: SDC 1939 & Supp 1960, § 33.1922.
15-18-42. Contents and verification of return of execution.
The return of the officer must be verified by him or his deputy and must show with reasonable detail all his proceedings from the time of receipt of such levy to the final return thereof and all items of receipts and disbursements from funds in disposition of property, and fees and expenses, and must report the net amount credited toward satisfaction of the judgment and any surplus or deficiency remaining, and generally, must show compliance with all provisions of this code relating to such matters.
Source: SDC 1939 & Supp 1960, § 33.1922.
15-18-43. Mailing of return of execution issued in another county--Officer not liable for delay in mails.
When execution shall be issued in any county, and directed to an officer of another county, it shall be lawful for such officer having the execution, after having discharged all the duties required of him by law to transmit such execution by mail to the clerk who issued the same. On proof being made by such officer that the execution was mailed soon enough to have reached such clerk within the time prescribed by law, the officer shall not be liable for any amercement or penalty, if it does not reach the office in due time.
Source: SDC 1939 & Supp 1960, § 33.1922; SL 1973, ch 126, § 10.
15-18-44. Neglect of duty by officer as contempt of court--Liability in damages--Amercement.
If an officer to whom any writ, warrant, or execution is delivered, willfully neglects or fails to perform the duties required thereby or under the provisions of this chapter, which he may have authority to perform, he may be punished by the court as for contempt and shall be liable in damages to any person injured by such neglect or failure, and may be amerced therefor or the same recovered by civil action, as the party injured may elect.
Source: SDC 1939 & Supp 1960, § 33.1909.
15-19-1
Process under which sales made--Title conveyed to purchaser.
15-19-2
Procedure governed by rules of court.
15-19-3
Publication of notice of sale of personal property--Contents--Posting in lieu of
notice.
15-19-4
Perishable property sold by court order--Notice.
15-19-5
Time and place of sale of personal property--Access of bidders to property--Notice of place.
15-19-6
Property within view of bidders during sale--Designation of place of sale when
property not capable of manual delivery.
15-19-7
Sale at public auction to highest bidder--Designation by debtor of order in which
items offered.
15-19-8
Publication of notice of real property sale.
15-19-9
Contents of notice of real property sale.
15-19-10
Time and place of real property sales.
15-19-11
Foreclosure sale of real estate situated in several counties.
15-19-12
Place of sale of real property where no courthouse in county.
15-19-13
Real property sold at public auction to highest bidder.
15-19-14
Distinct parcels of real property sold separately--Exceptions.
15-19-15
Order of sale of parcels of real property designated by owner or judgment debtor.
15-19-16
Real property sale terminated when sufficient amount raised.
15-19-17
Title acquired by purchaser of real property--Right of redemption.
15-19-17.1
Debtor entitled to harvest crops planted prior to issuance of deed.
15-19-18
Real property purchaser's title unaffected by reversal of judgment--Restitution by
judgment creditor.
15-19-19
Certificate of sale issued to purchaser of real property--Contents--Execution and
recording--Prima facie evidence.
15-19-20
Return of sale of real property--Contents.
15-19-21
Exceptions to sale of real property--Service and determination.
15-19-22
Confirmation of sale of real property--Recitals in court order.
15-19-23
Time allowed for redemption from sale of real property--Foreclosure provisions
unaffected.
15-19-24
Sheriff's deed to real property sold.
15-19-25
Contents, execution, and recording of sheriff's deed.
15-19-26
Sheriff's deed as evidence of legality of proceedings--Title vested in grantee.
15-19-27
Purchaser's recovery of damages for injury to real property after sale and before
possession delivered.
15-19-28
Demand by officer making sale of advance payment of publication fees.
15-19-29, 15-19-30.
Repealed.
15-19-31
Adjournment of sales to following day.
15-19-32
Postponement of sale by sheriff.
15-19-33
Officers not to purchase at sale.
15-19-34
Termination of sale when sufficient money raised.
15-19-35
Application of proceeds of sale.
15-19-36
Cancellation or endorsement of instrument on which judgment based--Attachment
to return of execution.
15-19-1. Process under which sales made--Title conveyed to purchaser.
Execution sales of property may be made under judgment, decree, order, writ, execution, or other appropriate process rendered and issued from any of the courts of this state having jurisdiction over the party and the subject matter, and when made in compliance with the statutes and rules of court, shall convey all the rights, titles, and interests of the party to the property involved.
Source: SDC 1939 & Supp 1960, § 33.2001.
15-19-2. Procedure governed by rules of court.
The procedure for making the sales referred to in § 15-19-1 and all records thereof shall be as prescribed by the rules of the Supreme Court of this state.
Source: SDC 1939 & Supp 1960, § 33.2001.
15-19-3. Publication of notice of sale of personal property--Contents--Posting in lieu of notice.
Public notice of all sales of personal property shall be given by the officer or person making the sale by publishing in some legal newspaper in the county where the sale is to be made, in one issue, at least ten days before the sale, a notice of sale, which shall contain the title of the action, a reference to the order, judgment, or execution pursuant to which the sale is made, and the date thereof; if on decree of foreclosure, or execution, the amount of the judgment; a description of the property to be sold, the terms of sale, and the time and place of sale.
If there be no legal newspaper in the county, the notice must be posted in five of the most public places in the county, not less than ten days before sale.
Source: SDC 1939 & Supp 1960, § 33.2002.
15-19-4. Perishable property sold by court order--Notice.
Perishable property may be sold by order of the court or a judge thereof, prescribing such notice, time, and manner of sale as may be reasonable, considering the character and condition of the property.
Source: SDC 1939 & Supp 1960, § 33.2003.
15-19-5. Time and place of sale of personal property--Access of bidders to property--Notice of place.
Sales of personal property under execution may be made on any day except Sunday and shall be made between the hours of nine in the morning and ten in the evening.
Such sales may be made at the front door of the courthouse or at any other public place within the county or at any private place, provided that public access thereto for inspection, bidding, and removal of the property is freely given at all times after the publication of the notice of sale and a reasonable time thereafter for removal of the property, and provided that all places fixed for a sale shall be described with certainty in the notice so that the public generally may readily locate the same.
Source: SDC 1939 & Supp 1960, § 33.2004; SL 1986, ch 166.
15-19-6. Property within view of bidders during sale--Designation of place of sale when property not capable of manual delivery.
When the sale is of personal property, capable of manual delivery, it must be within view of those who attend the sale, and when it consists of property not conveniently capable of manual delivery, such as heavy machinery, stocks of goods, or grain in bulk, it may be held at such place as the officer conducting the sale may designate as most likely to enable him to secure the best price therefor. If it consists, in part, of property not capable of manual delivery, the officer conducting the sale shall likewise designate one place of sale most likely to produce the best price and have the property capable of manual delivery there for sale and sell the other property by description or sample.
Source: SDC 1939 & Supp 1960, § 33.2004.
15-19-7. Sale at public auction to highest bidder--Designation by debtor of order in which items offered.
Personal property must be sold on execution at public auction to the highest bidder. The property sold must be offered in such parcels and items as are likely to bring the highest price. A judgment debtor may direct the order in which the parcels or items of property are to be sold by a request in writing delivered to the officer before the sale, or orally if he be present at the sale.
Source: SDC 1939 & Supp 1960, § 33.2005.
15-19-8. Publication of notice of real property sale.
Before making an execution sale of real property, the officer conducting the same shall cause public notice thereof to be given by advertisement published in a legal newspaper, published in each county wherein any part of it is situated, once each week for four consecutive weeks, prior to the date of sale. If publication is made upon at least one day in each calendar week, the same shall be sufficient, even though more or less than seven days may intervene between publications. If no newspaper is published in such county, the notice must be published in the nearest legal newspaper in the state likely to give notice, and the designation of such newspaper by the sheriff, and subsequent confirmation of the sale by the court, shall be conclusive as to such designated newspaper being the proper paper for such publication of such notice thereof.
Source: SDC 1939, § 33.2006; Supreme Court Rule adopted September 12, 1942.
15-19-9. Contents of notice of real property sale.
The notice of sale of real property must state the title of the proceeding under which it is made; the decree, order, or execution, which is authority for the sale, must be named and referred to by the date thereof; the amount of the judgment or other lien upon which sale is to be made; the legal description of the property to be sold; that such sale will be made to the highest bidder for cash; if the sale be upon special execution, on a decree of foreclosure, the notice shall also state whether there are prior liens of record and if there are the nature and amount of such liens so far as can be ascertained from the records; whether or not the property is sold subject to redemption; and the time and place of sale.
Source: SDC 1939, § 33.2006; Supreme Court Rule adopted September 12, 1942.
15-19-10. Time and place of real property sales.
Judicial sales of real estate may be held on any day except Sunday and must be held between the hours of nine o'clock in the forenoon and four o'clock in the afternoon.
Such sales shall be held at the front door of the courthouse of the county in which the real property is situated, except as provided in §§ 15-19-11 and 15-19-12.
Source: SDC 1939 & Supp 1960, § 33.2007.
15-19-11. Foreclosure sale of real estate situated in several counties.
If the real estate is sold pursuant to a judgment of foreclosure of a mortgage or other lien in which real estate situated in several counties is described and which instrument has been duly recorded prior to the commencement of the action, in all of said counties, or if it is sold pursuant to an attachment of real estate in several counties and the notice of levy of such attachment has been duly recorded in all such counties, any or all of said real estate may be sold in the county in which the judgment was rendered, by the sheriff of such county, unless the court shall in the judgment of foreclosure or upon the attachment proceedings otherwise specifically direct.
Source: SDC 1939 & Supp 1960, § 33.2007.
15-19-12. Place of sale of real property where no courthouse in county.
In any case where there is no courthouse in the county where a judicial sale of real estate is to be made, the same may be made at the door of the building in which the circuit court was last held. If there has been no circuit court held in such county, and there is no courthouse therein, then the officer making the sale shall designate some public place for the same.
Source: SDC 1939 & Supp 1960, § 33.2007.
15-19-13. Real property sold at public auction to highest bidder.
Execution sales of real property must be made at public auction, to the highest bidder, for cash.
Source: SDC 1939 & Supp 1960, § 33.2008.
15-19-14. Distinct parcels of real property sold separately--Exceptions.
When the real property consists of several distinct farms, tracts, lots, or parcels, they must be sold separately, unless:
(1) They consist of platted lots having a structure partly upon each, in which case they must be sold as one tract; or
(2) There is a paramount lien upon two or more separate farms, tracts, lots, or parcels, in which case such distinct farms, tracts, lots, or parcels must be sold as one tract, subject to such paramount lien.
Source: SDC 1939 & Supp 1960, § 33.2008.
15-19-15. Order of sale of parcels of real property designated by owner or judgment debtor.
The owner of the property, person liable for or upon a lien against the same, or the judgment debtor may by written notice served on the sheriff or other person making the sale, before the time of sale, or personally at the time and place of sale, direct the order in which the several known lots, parcels, or tracts of real property shall be sold, and the sheriff or other person making the sale shall offer the lands accordingly, unless to do so he would be required to violate the provisions of subdivision 15-19-14(1) or (2).
Source: SDC 1939 & Supp 1960, § 33.2008.
15-19-16. Real property sale terminated when sufficient amount raised.
When the total amount realized from the sale of one or more distinct farms, tracts, lots, or parcels of real property equals or exceeds the amount necessary to satisfy the judgment, no more property shall be sold.
Source: SDC 1939 & Supp 1960, § 33.2008.
15-19-17. Title acquired by purchaser of real property--Right of redemption.
Upon a sale of real property the purchaser is substituted to, and acquires all the right, title, interest, and claim of the judgment debtor thereto; and when the estate is less than a leasehold of two years unexpired term, the sale is absolute. In all other cases the real property is subject to redemption as provided in this code.
Source: SDC 1939 & Supp 1960, § 33.2009.
15-19-17.1. Debtor entitled to harvest crops planted prior to issuance of deed.
Whenever crops have been sown on the debtor's premises, before the issuance of a sheriff's deed, the debtor shall be entitled to the crops grown thereon and the right to enter on the premises to harvest the crops after the issuance of the deed.
Source: SL 1986, ch 177, § 3.
15-19-18. Real property purchaser's title unaffected by reversal of judgment--Restitution by judgment creditor.
If any judgment, in satisfaction of which any real property be sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of the purchaser; but in such case restitution must be made by the judgment creditor of the money for which such real property was sold, with lawful interest thereon from the day of sale.
Source: SDC 1939 & Supp 1960, § 33.2009.
15-19-19. Certificate of sale issued to purchaser of real property--Contents--Execution and recording--Prima facie evidence.
Upon the execution sale of real property the officer making the sale must give to the purchaser a certificate of sale containing:
(1) A particular description of the real property sold;
(2) The price bid for each distinct lot or parcel;
(3) The whole price paid;
(4) A statement of the time within which redemption may be made if property be sold subject to redemption, which time shall begin to run only from date of sale;
(5) The name and address of the purchaser.
Such certificate must be executed by the officer and acknowledged and must be recorded in the office of the register of deeds of the county wherein the real property is situated.
Such certificate of sale or the record thereof in the office of the register of deeds shall be prima facie evidence of the facts therein recited.
Source: SDC 1939 & Supp 1960, § 33.2010.
15-19-20. Return of sale of real property--Contents.
The officer or person making an execution sale of real property shall within ten days after such sale file in the court a verified written return of such sale reciting generally his proceedings and which must contain among other things, the following:
(1) A description of the judgment, execution, order, and other authority for making the sale, which description may be made by reference sufficient to identify the same;
(2) Proof of publication of notice of sale and copy of the notice as published;
(3) A description of the property sold, the price bid and paid for each part thereof, and the name of the purchaser;
(4) A fully itemized statement and account of the items due and the costs, fees, and expenses of the sale, and the total amount realized and the surplus or deficiency, if any;
(5) If the order of sale was directed by the owner, debtor, or other person having authority so to do, a recital of such proceedings;
(6) A statement that the said sale was in all respects lawfully and honestly conducted and that the officer conducting the sale was not directly or indirectly interested therein in his private or individual right;
(7) A statement of any postponements of the sale and proof of publication or announcement of notice thereof.
Source: SDC 1939 & Supp 1960, § 33.2011.
15-19-21. Exceptions to sale of real property--Service and determination.
At any time within ten days after such return has been filed, any party interested may file exceptions to such sale, and serve same upon purchaser, and they shall thereupon be determined by the court either upon motion to confirm such sale, or to set it aside.
Source: SDC 1939 & Supp 1960, § 33.2012.
15-19-22. Confirmation of sale of real property--Recitals in court order.
If no exceptions be filed as aforesaid upon the certificate of the clerk to that effect, the report may be presented to the court for confirmation ex parte, and if the court shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this code, the court must make an order confirming the sale, which shall recite that the court is satisfied of the legality of such sale and shall direct that the officer make to the purchaser a deed of such real property, or interest therein, at the expiration of the period of redemption, unless the same be redeemed as herein provided.
Source: SDC 1939 & Supp 1960, § 33.2013.
15-19-23. Time allowed for redemption from sale of real property--Foreclosure provisions unaffected.
If no redemption be made within one year after the sale, the purchaser or his assignee is entitled to a conveyance; or, if so redeemed, whenever sixty days have lapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner, or his assignee, is entitled to a sheriff's deed; but in all cases the judgment debtor shall have the entire period of one year from the date of the sale to redeem the property.
This section shall not affect the provisions of law relating to the postponement of the period of redemption in foreclosure cases.
Source: SDC 1939 & Supp 1960, § 33.2201.
15-19-24. Sheriff's deed to real property sold.
Upon the expiration of the period for redemption, the sheriff or other officer who made the sale, his successor, or some other person appointed by the court for that purpose, must make the purchaser, or the party entitled thereto, a deed of the real property sold.
Source: SDC 1939 & Supp 1960, § 33.2202.
15-19-25. Contents, execution, and recording of sheriff's deed.
A sheriff's deed must recite the execution or executions, or the substance thereof, and the names of the parties, the amount and date of rendition of the judgment by virtue whereof such real property was sold, and must be executed, acknowledged, or proved, and recorded as other conveyances of real property.
Source: SDC 1939 & Supp 1960, § 33.2203.
15-19-26. Sheriff's deed as evidence of legality of proceedings--Title vested in grantee.
The sheriff's deed shall be sufficient evidence of the legality of such sale and the proceedings therein, until the contrary is proved, and shall vest in the purchaser, or other party as aforesaid, as good and as perfect title in the premises therein described as was vested in the debtor at or after the time when such real property became liable to the satisfaction of the judgment.
Source: SDC 1939 & Supp 1960, § 33.2202.
15-19-27. Purchaser's recovery of damages for injury to real property after sale and before possession delivered.
When real property has been sold on execution, the purchasers thereof, or any person who may have succeeded to his interest, may, after his estate becomes absolute, recover damages for injury to the property by the tenant in possession after sale, and before possession is delivered under the conveyance.
Source: SDC 1939 & Supp 1960, § 37.1521.
15-19-28. Demand by officer making sale of advance payment of publication fees.
The officer who levies upon property, or who is charged with the duty of selling the same by virtue of any writ of execution, may refuse to publish a notice of the sale thereof by advertisement in a newspaper until the party for whose benefit such execution is issued, his agent or attorney, shall advance to such officer so much money as will be sufficient to discharge the fees of the printer for publishing such notice. Before any officer shall be excused from publishing the notice as aforesaid, he must demand of the party for whose benefit the execution was issued, his agent or attorney, provided either of them reside in the county, the amount of money for such fees.
Source: SDC 1939 & Supp 1960, § 33.2017.
15-19-31. Adjournment of sales to following day.
Whenever any sale has commenced at the time and place specified in the notice therefor and because of the amount of property to be sold or other events beyond the control of the officer conducting it, the sale cannot be completed on that day, it may be adjourned to any of the hours within which such sales may be made on the next succeeding business day by announcement of the officer at the time such adjournment is made.
Source: SDC 1939 & Supp 1960, § 33.2014.
15-19-32. Postponement of sale by sheriff.
When there are no bidders or when the amount offered is grossly inadequate, or when from any cause the sale is prevented from taking place on the day fixed, the sheriff may postpone the sale for not more than three days without being required to give any further notice thereof, but he shall not make more than two such postponements, and such postponement must be publicly announced when and where the sale should have taken place.
Source: SDC 1939 & Supp 1960, § 33.2014.
15-19-33. Officers not to purchase at sale.
No public officer nor officer of the court, nor any deputy of such, may be a purchaser at any execution sale held under his order or direction.
Source: SDC 1939 & Supp 1960, § 33.2015.
15-19-34. Termination of sale when sufficient money raised.
When sufficient property has been sold to satisfy any judgment or execution and the accrued costs of sale, no more property shall be sold, but this shall not affect the sale of property in single items of personal property or farms, tracts, or lots of real property as in this code provided, when the highest bid for such entire item, farm, tract, or lot shall exceed such total due, but in all such cases, the surplus shall be accounted for as in this code provided.
Source: SDC 1939 & Supp 1960, § 33.2015.
15-19-35. Application of proceeds of sale.
Every officer or person who conducts an execution sale shall apply the proceeds of such sale:
(1) To the payment of the costs and expenses of the sale, including any actual out-of-pocket expenses and reasonable costs incurred by a sheriff;
(2) To the satisfaction of the execution under which the sale is made;
(3) To the satisfaction of any other execution in the officer's or person's hands, to which such proceeds may be lawfully applied;
(4) To pay the surplus, if any, to the defendant, or into court for the use of the defendant or the person entitled thereto, subject to the order of the court. If such surplus or any part thereof remains in the court for the term of three months without being applied for, the court may direct the same to be put out at interest for the benefit of the defendant, the defendant's representatives, or assigns, subject to the order of the court.
Source: SDC 1939 & Supp 1960, § 33.2016; SL 2007, ch 129, § 2.
15-19-36. Cancellation or endorsement of instrument on which judgment based--Attachment to return of execution.
When the proceeds are sufficient to discharge the entire judgment, including costs and disbursements, the officer or the person making the sale, or the clerk of the court, shall cancel the note or other evidence of the debt upon which the judgment is founded, by a plain and legible notation on the face thereof, and such note or other evidence shall be attached to and filed with the return upon the execution; when the proceeds are insufficient for that purpose, the amount applied on the debt shall be endorsed on such note or other evidence, with the date of the application, by the officer or person making the sale, or by the clerk of the court, and such note or other evidence, so endorsed, shall be attached to and made a part of the return on the execution, but the officer or person making such sale may retain the proceeds thereof until after the sale shall have been confirmed, as provided in § 15-19-22.
Source: SDC 1939 & Supp 1960, § 33.2016.
15-20-1
Order to judgment debtor to appear and answer after execution returned unsatisfied.
15-20-2
Order to judgment debtor to appear and answer on refusal to apply property to judgment.
15-20-3
Procedure available against joint debtors not served with summons.
15-20-4
Application of procedure to magistrate court judgments filed in circuit court.
15-20-5
Arrest to prevent absconding by judgment debtor--Undertaking required--Commitment
in default of undertaking.
15-20-6
Appointment of referee.
15-20-7
Attendance of witnesses required--Examination certified by referee.
15-20-8
Examination of witnesses and debtor on oath.
15-20-9
Self-incrimination not ground for refusing to answer--Immunity from prosecution.
15-20-10
Witness fees and disbursements allowed.
15-20-11
Concealment of assets or transfers as misdemeanor.
15-20-12
Court order applying property to satisfaction of judgment--Restriction on application of
wages.
15-20-13
Court order forbidding transfer of property.
15-20-14
Appointment of receiver for debtor's property--Consolidation of proceedings--Control of
receivership.
15-20-15
Filing with clerk of order for appointment of receiver.
15-20-16
Recording by register of deeds of order appointing receiver--Destruction of records.
15-20-17
Possession of real property taken by receiver.
15-20-18
Action by receiver to determine adverse claims to property--Order prohibiting transfer
pending determination.
15-20-19
Disobedience of order of judge or referee as contempt.
15-20-20
Discharge from imprisonment of person committed.
15-20-1. Order to judgment debtor to appear and answer after execution returned unsatisfied.
When an execution upon a judgment for twenty-five dollars or more, exclusive of costs and disbursements, against property of the judgment debtor, or of any one of several debtors in the same judgment, issued to the sheriff of the county where such debtor resides or has a place of business, or if he does not reside in this state or has no place of business therein, to the sheriff of the county where such judgment was obtained, is returned unsatisfied in whole or in part, the judgment creditor at any time after such return is entitled to an order from a judge of the circuit court within the county to which the execution was issued, requiring such judgment debtor to appear and answer concerning his property before such judge, within such county, at a time and place specified in the order.
Source: SDC 1939 & Supp 1960, § 33.2401.
15-20-2. Order to judgment debtor to appear and answer on refusal to apply property to judgment.
After the issuing of an execution against property and upon proof by affidavit of a party or otherwise to the satisfaction of the court or a judge thereof that any judgment debtor residing in the circuit where such judge resides has property which he unjustly refuses to apply to the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor to the satisfaction of the judgment as are provided upon a return of an execution.
Source: SDC 1939 & Supp 1960, § 33.2401.
15-20-3. Procedure available against joint debtors not served with summons.
The procedure provided in this chapter may be taken upon the return of an execution unsatisfied issued upon a judgment recovered in an action against joint debtors in which some of the defendants have not been served with the summons by which said action was commenced so far as relates to the joint property of such debtors; and all actions by creditors to obtain satisfaction of judgments out of the property of joint debtors are maintainable in the same manner and to the same effect.
Source: SDC 1939 & Supp 1960, § 33.2403.
15-20-4. Application of procedure to magistrate court judgments filed in circuit court.
The provisions of this chapter shall apply to judgments of magistrates' courts, transcripts of which have been filed in the circuit court, with the same force and effect as to judgments rendered by that court.
Source: SDC 1939 & Supp 1960, § 33.2409; SL 1974, ch 153, § 14.
15-20-5. Arrest to prevent absconding by judgment debtor--Undertaking required--Commitment in default of undertaking.
Instead of the order requiring the attendance of the judgment debtor the judge may, upon proof by affidavit or otherwise to his satisfaction that there is danger of the debtor leaving the state or concealing himself and that there is reason to believe he has property which he unjustly refuses to apply to such judgment, issue a warrant requiring the sheriff of any county where such debtor may be to arrest him and bring him before such judge. Upon being brought before the judge he may be examined on oath and if it then appears that there is danger of the debtor leaving the state and that he has property which he unjustly refuses to apply to such judgment, he may be ordered to enter into an undertaking with one or more sureties that he will from time to time attend before the judge as he shall direct and that he will not, during the pendency of the proceeding dispose of any portion of his property not exempt from execution. In default of entering into such undertaking he may be committed to prison by warrant of the judge as for contempt.
Source: SDC 1939 & Supp 1960, § 33.2401.
15-20-6. Appointment of referee.
A referee may be appointed in the discretion of the judge upon stipulation of the parties or upon the initiative of the judge at any time.
Source: SDC 1939 & Supp 1960, § 33.2402.
15-20-7. Attendance of witnesses required--Examination certified by referee.
Witnesses may be required to appear and testify on any proceeding under this chapter, in the same manner as upon the trial of any issue. The party or witness may be required to attend before the judge or a referee appointed by the court or judge. If the examination is taken before a referee, it shall be certified by such referee to the judge.
Source: SDC 1939 & Supp 1960, §§ 33.2401, 33.2402.
15-20-8. Examination of witnesses and debtor on oath.
On an examination under this chapter either party may examine witnesses on his behalf and the judgment debtor may be examined in the same manner as a witness. All examinations and answers under this chapter shall be on oath except that when a corporation answers, the answer shall be on the oath of an officer thereof, and when a limited liability company answers, the answer shall be on the oath of a manager, or member thereof if such limited liability company has no managers.
Source: SDC 1939 & Supp 1960, §§ 33.2401, 33.2402; SL 1994, ch 351, § 37.
15-20-9. Self-incrimination not ground for refusing to answer--Immunity from prosecution.
No person shall on examination pursuant to this chapter be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution. Nor shall he be excused from answering any question on the ground that he has, before the examination, executed any conveyance, assignment, or transfer of his property for any purpose, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution.
Source: SDC 1939 & Supp 1960, § 33.2401.
15-20-10. Witness fees and disbursements allowed.
The judge may allow to the judgment creditor or any party so examined whether a party to the action or not witness fees and disbursements.
Source: SDC 1939 & Supp 1960, § 33.2402.
15-20-11. Concealment of assets or transfers as misdemeanor.
Every person who, having been called upon, by the lawful order of any court, to make a true exhibit of his real and personal effects, either:
(1) Intentionally conceals any of his estate or effects, or any books or writing relative thereto; or
(2) Intentionally fails to disclose to the court any debts or demands which he has collected, or any transfer of his property which he had made after being ordered to make an exhibit thereof;
is guilty of a Class 1 misdemeanor.
Source: SDC 1939, § 13.1221; SL 1984, ch 12, § 3; SL 1985, ch 163.
15-20-12. Court order applying property to satisfaction of judgment--Restriction on application of wages.
The judge may order any property of the judgment debtor not exempt from execution in the hands either of himself or any other person or due the judgment debtor to be applied to the satisfaction of the judgment; except that the earnings of the debtor for his personal services at any time within sixty days next preceding the order cannot be so applied when it is made to appear by the debtor's affidavit or otherwise that such earnings are necessary for the use of a family supported wholly or partly by his labor.
Source: SDC 1939 & Supp 1960, § 33.2404.
15-20-13. Court order forbidding transfer of property.
The judge may also by order forbid a transfer or other disposition of the property of a judgment debtor not exempt from execution and any interference therewith.
Source: SDC 1939 & Supp 1960, § 33.2406.
15-20-14. Appointment of receiver for debtor's property--Consolidation of proceedings--Control of receivership.
The judge may also by order appoint a receiver of the property of the judgment debtor in the same manner and with the same authority as if the appointment was made by the court according to chapter 21-21. But before the appointment of such receiver the judge shall ascertain, if practicable, by the oath of the party or otherwise, whether any other supplementary proceedings are pending against the judgment debtor, and if such proceedings are so pending, the plaintiff therein shall have notice to appear before him, and shall likewise have notice of all subsequent proceedings in relation to said receivership. No more than one receiver of the property of a judgment debtor shall be appointed. The receiver of the judgment debtor shall be subject to the direction and control of the court in which the judgment was obtained upon which the proceedings are founded.
Source: SDC 1939 & Supp 1960, §§ 33.2406, 33.2407.
15-20-15. Filing with clerk of order for appointment of receiver.
An order for the appointment of a receiver of the property of a judgment debtor shall be filed in the office of the clerk of the court where the judgment was obtained. The clerk shall record the time of filing and docket the judgment in the judgment docket.
Source: SDC 1939 & Supp 1960, § 33.2407; SL 1983, ch 157, § 2.
15-20-16. Recording by register of deeds of order appointing receiver--Destruction of records.
A certified copy of the order appointing the receiver must be filed and recorded in the office of the register of deeds of the county in which the judgment debtor resides and also in any county wherein personal property to be affected by the order is situated before the receiver may take possession and control of any such personal property. However, the register of deeds may destroy any record which the records destruction board, acting pursuant to § 1-27-19, declares to have no further administrative, legal, fiscal, research, or historical value.
Source: SDC 1939 & Supp 1960, § 33.2407; SL 1981, ch 45, § 16.
15-20-17. Possession of real property taken by receiver.
Upon the filing and recording of a certified copy of the order appointing the receiver in the office of the register of deeds in any county in which real estate to be affected is situated the receiver may take possession and control of any such real estate.
Source: SDC 1939 & Supp 1960, § 33.2407.
15-20-18. Action by receiver to determine adverse claims to property--Order prohibiting transfer pending determination.
If it appear that a person or corporation alleged to have property of the judgment debtor or to be indebted to him claims an interest in the property adverse to him or denies the debt, such interest or debt shall be recoverable only in an action against such person or corporation by the receiver; but the judge may by order forbid a transfer or other disposition of such property or interest until a sufficient opportunity be given to the receiver to commence the action and prosecute the same to judgment and execution; but such order may be modified or dissolved by the judge granting the same at any time on such security as he shall direct.
Source: SDC 1939 & Supp 1960, § 33.2405.
15-20-19. Disobedience of order of judge or referee as contempt.
If any person, party, or witness disobey an order of the judge or referee duly served, such person, party, or witness may be punished by the judge as for a contempt.
Source: SDC 1939 & Supp 1960, § 33.2408.
15-20-20. Discharge from imprisonment of person committed.
In all cases of commitment under this chapter the person committed may, in case of inability to perform the act required or to endure the imprisonment, be discharged from imprisonment by the court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just.
Source: SDC 1939 & Supp 1960, § 33.2408.
15-21-1
Grounds for amercement of officer directed to execute writ--Amount of amercement.
15-21-2
Amercement of clerk for failure to pay over money received.
15-21-3
Notice of amercement given to officer of county other than that from which execution
issued.
15-21-4
Amount of amercement on refusal to pay over money collected.
15-21-5
Entry of amercements on court record--Effect as judgment.
15-21-6
Action joining officer's surety as party to judgment--Officer's property applied first.
15-21-7
Amercement alternative to other remedies.
15-21-8
Subrogation of officer after amercement.
15-21-1. Grounds for amercement of officer directed to execute writ--Amount of amercement.
If any sheriff or other officer shall refuse or neglect to execute any writ of execution to him directed which has come to his hands; or to sell any personal or real property; or to return any writ of execution to the proper court on or before the return day; or, on demand to pay over to the plaintiff, his agent, or attorney of record, all moneys by him collected or received for the use of said party at any time after collecting or receiving the same, except as otherwise provided; or on demand made by the defendant, his agent, or attorney of record, to pay all overplus received from any sale, such sheriff or other officer shall, on motion in court upon two days' notice thereof in writing, be amerced in the amount of said debt, damages, and costs, with ten percent thereon to and for the use of said plaintiff or defendant, as the case may be.
Source: SDC 1939 & Supp 1960, § 33.2501.
15-21-2. Amercement of clerk for failure to pay over money received.
If any clerk of a court shall neglect or refuse on demand made by the person entitled thereto, his agent, or attorney of record, to pay over all money by him received in his official capacity for the use of such person, every such clerk may be amerced; and the proceedings against him and his sureties shall be the same as provided for in § 15-21-1, against sheriffs and their sureties.
Source: SDC 1939 & Supp 1960, § 33.2502.
15-21-3. Notice of amercement given to officer of county other than that from which execution issued.
In all cases of a motion to amerce a sheriff or other officer of any county, other than the one from which the execution issued, notice in writing shall be given to such officer as required in § 15-21-1 by leaving it with him or at his office at least fifteen days before the hearing of such motion; or by transmitting the notice by mail at least thirty days prior to the hearing thereof.
Source: SDC 1939 & Supp 1960, § 33.2504.
15-21-4. Amount of amercement on refusal to pay over money collected.
When the cause of amercement is for refusing to pay over money collected as provided in § 15-21-1 or 15-21-2 the sheriff or other officer shall not be amerced in a greater sum than the amount so withheld with ten percent thereon.
Source: SDC 1939 & Supp 1960, § 33.2503.
15-21-5. Entry of amercements on court record--Effect as judgment.
All amercements procured under this chapter shall be entered on the record of the court, and shall have the same force and effect as a judgment.
Source: SDC 1939 & Supp 1960, § 33.2504.
15-21-6. Action joining officer's surety as party to judgment--Officer's property applied first.
Each and every surety of any sheriff or other officer may be made a party to the judgment rendered as aforesaid against the sheriff or other officer by action to be commenced and prosecuted as in other cases; but the property, personal or real, of any such surety shall not be liable to be taken on execution when sufficient property of the sheriff or other officer against whom execution may be issued can be found to satisfy the same.
Source: SDC 1939 & Supp 1960, § 33.2505.
15-21-7. Amercement alternative to other remedies.
Nothing contained in this chapter shall prevent either party from proceeding against such sheriff or other officer by attachment or other proceeding at his election.
Source: SDC 1939 & Supp 1960, § 33.2505.
15-21-8. Subrogation of officer after amercement.
In cases where a sheriff or other officer may be amerced and shall not have collected the amount of the original judgment he must be permitted to take out execution and collect the amount of such judgment in the name of the original plaintiff for his own use.
Source: SDC 1939 & Supp 1960, § 33.2506.
15-24-1
Circuit court procedure applicable except as otherwise provided.
15-24-2
Adjournment of court by one judge--Announcement and filing of opinions.
15-24-3
Order of causes on Supreme Court calendar--Preference to appeals on adoption,
abuse and neglect, suppression of evidence in criminal cases and cases involving
public agencies.
15-24-4
Number of judges required for decision--Rehearing--Disposition in case of
disagreement.
15-24-5
Definitions.
15-24-6
General.
15-24-7
Objections.
15-24-8
Advance Notification.
15-24-9
Conduct and Attire.
15-24-10
Media Coordinator.
15-24-11
Technical.
15-24-12
Equipment and Pooling.
15-24-13
Expanded media coverage permanent effective date.
15-24-1. Circuit court procedure applicable except as otherwise provided.
Except as otherwise indicated by statute or rule, the statutes and rules of practice and procedure in the circuit courts of this state shall apply to practice and procedure in the Supreme Court.
Source: SDC 1939 & Supp 1960, § 33.0501.
15-24-2. Adjournment of court by one judge--Announcement and filing of opinions.
Any one or more of the judges of the Supreme Court may adjourn the court with the same effect as if all were present, and may announce and have placed on file an opinion of the court.
Source: SDC 1939 & Supp 1960, § 33.0503.
15-24-3. Order of causes on Supreme Court calendar--Preference to appeals on adoption, abuse and neglect, suppression of evidence in criminal cases and cases involving public agencies.
The Supreme Court shall direct the order in which causes shall be assigned on its calendar for hearing, except that preference in the assignment of causes for hearing shall be as follows:
(1) First preference shall be given to appeals taken of adoption or abuse and neglect judgments or orders, including judgments or orders terminating parental rights;
(2) Second preference shall be given to appeals taken pursuant to § 23A-32-5;
(3) Third preference shall be given whenever the state, any state board, or state officer; any county or municipal corporation, or any officer thereof; in a purely official capacity, shall be plaintiff or defendant in any action or proceeding, or directly interested therein.
Source: SDC 1939 & Supp 1960, § 33.0504; SL 1978, ch 178, § 570; SL 1997, ch 310 (Supreme Court Rule 97-7).
15-24-4. Number of judges required for decision--Rehearing--Disposition in case of disagreement.
The concurrence of three judges of the Supreme Court is necessary to pronounce a decision. If three do not concur the cause must be reheard; and if on the second hearing three judges do not concur, the judgment or order appealed from must be affirmed; or, in case of an original action or proceeding, the same must be dismissed without prejudice.
Source: SDC 1939 & Supp 1960, § 33.0502.
15-24-5. Definitions.
As used in §§ 15-24-5 to 15-24-12, inclusive, the following terms mean:
(a) "Judicial proceeding" or "proceeding" referenced in these rules includes all public appellate arguments, hearings, or other proceedings before the Supreme Court, except those specifically excluded by the rules. These rules do not apply to coverage of ceremonial or nonjudicial proceedings.
(b) "Expanded media coverage" includes broadcasting, televising, electronic recording, or photographing of judicial proceedings for the purpose of gathering and disseminating news and educational or instructional information to the public. Any other use, absent express written permission of the court, is prohibited.
(c) "Supreme Court" or the "court" means the Supreme Court of South Dakota.
(d) "Chief Justice" means the Chief Justice of the Supreme Court of South Dakota.
(e) "Clerk" means the clerk of the Supreme Court of South Dakota.
(f) "Media coordinator" means the representative from the news media appointed by the court to coordinate expanded media coverage of judicial proceedings of the court under these rules.
(g) "News media" means personnel of a newspaper or other periodical, news service, radio station, television station, or television network, who deliver news to the general public on a regular and consistent basis in print, electronic or digital format.
Source: Supreme Court Rule 01-08; SL 2014, ch 260 (Supreme Court Rule 14-01), eff. Feb. 20, 2014.
15-24-6. General.
(a) Expanded media coverage must be conducted in conformity with applicable statutes, rules, and caselaw.
(b) Nothing herein shall alter the obligation of any attorney to comply with the provisions of the Rules of Professional Conduct governing trial publicity.
(c) Except as otherwise provided by these rules, electronic recording by moving camera, still camera, and audio tape, and broadcasting will be permitted of all judicial proceedings in the courtroom during sessions of the Supreme Court.
(d) There shall be no audio or video recording or broadcast of conferences between the attorneys and their clients, co-counsel, or justices.
(e) There shall be no audio or video recording or broadcast of in-chambers court conferences.
(f) There shall be no focusing on and photographing of materials on counsel or law clerk tables or the judicial bench.
(g) The courtroom shall not be used to conduct interviews before or after the judicial proceedings.
(h) No media film, videotape, still photograph or audio reproduction of a judicial proceeding shall be admissible as evidence in any subsequent or collateral proceeding, including any retrial or appeal thereof, except by order of the Supreme Court.
(i) The quantity and type of equipment permitted in the courtroom shall be subject to the discretion of the court within the guidelines set out in these rules.
(j) Notwithstanding the provisions of these rules, the court, upon written application, may permit the use of equipment or techniques at variance with these rules, provided the application for variance is made at least ten days prior to the scheduled judicial proceeding. Variances may be allowed by the court without advance application or notice if all counsel and parties consent.
(k) It shall be the responsibility of the media to settle disputes among media representatives, facilitate pooling where necessary, and implement procedures that meet the approval of the court prior to any coverage and without disruption to the court. The media coordinator will coordinate media coverage and act as liaison between the media and the court.
(l) The court reserves the right to obtain, for historical purposes, a copy of any audio recordings, visual tape or film recordings or published photographs made of its proceedings. The media coordinator will be responsible for providing the court with this duplicate copy.
(m) All expenses incurred in expanded media coverage of the judicial proceedings, including duplication of materials to provide to the court, shall be the responsibility of the news media.
(n) The rights provided for herein may be exercised only by persons or organizations that are part of the news media.
(o) Under all circumstances, the court retains the discretion to exclude or terminate electronic coverage or broadcast of its proceedings. This discretion is not to be exercised in an effort to edit the proceedings, but where deemed necessary in the interests of justice or where these rules have been violated. This rule does not otherwise limit or restrict the first amendment rights of the news media to cover and report judicial proceedings.
(p) The court shall retain ultimate control of the application of these rules over the broadcasting, recording or photographing of its proceedings. Any decision made by the court or Chief Justice for the court under these rules is final and not subject to appeal.
(q) These rules are designed primarily to provide guidance to media and courtroom participants and are subject to withdrawal or amendment by the court at any time.
(r) Failure to comply with the court's rules or orders regarding coverage and broadcast is punishable by sanction or contempt proceedings pursuant to South Dakota law.
Source: Supreme Court Rule 01-08.
15-24-7. Objections.
(a) All public appellate proceedings are presumed open for expanded media coverage under these rules. A party to a proceeding objecting to expanded media coverage under these rules shall file a written objection, stating the grounds therefor, at least ten days prior to commencement of the proceeding. Time for filing objections may be extended or reduced in the discretion of the court, which may also, in appropriate circumstances, extend the right of objection to persons other than the parties to the appeal.
(b) All objections shall be reviewed and determined by the court prior to commencement of the proceeding. Expanded media coverage of the proceedings shall not be limited by objection of parties or others except for good or legal cause shown that such coverage would materially interfere with rights of the parties and the interests of justice.
(c) Where expanded media coverage of a proceeding has been prohibited by decision of the court, the clerk shall notify the media coordinator who shall notify the appropriate media personnel prior to commencement of the proceeding.
Source: Supreme Court Rule 01-08.
15-24-8. Advance Notification.
The court calendar is published on its website at www.sdjudicial.com. News media interested in video, still camera, or audio coverage of any judicial proceeding must notify the media coordinator, who will notify the clerk no later than two business days before commencement of the court term and make all necessary assignments and arrangements if pool coverage is required. For good cause shown, relief from this notification requirement may be granted by the court.
Source: Supreme Court Rule 01-08; SL 2003, ch 260 (Supreme Court Rule 03-01).
15-24-9. Conduct and Attire.
(a) Media representatives are expected to present a neat appearance in keeping with the dignity of the proceedings and be sufficiently familiar with court proceedings to conduct themselves so as not to interfere with the dignity of the proceedings, or to distract counsel or the court. All media personnel shall be properly attired. Clothing and equipment shall not display insignia of the media organization.
(b) All photographing and recording equipment and media representatives must be in place fifteen minutes before the scheduled commencement of the proceeding to be recorded. When court is in session, media representatives will not be permitted to move from the location they have been assigned by the court, change film, lenses or tape, make repairs or otherwise disrupt the proceedings. Equipment shall be installed or removed before proceedings, after proceedings, or during a recess of adequate length to assure that the courtroom will not be disrupted. Media representatives may be removed from the courtroom for failure to comply with this provision of the rules.
Source: Supreme Court Rule 01-08.
15-24-10. Media Coordinator.
The media coordinator and an alternate shall be appointed by the court from a list of nominees provided by a representative of the news media designated by the court. The media coordinator and the alternate shall serve until such time as the court names a replacement. The name, business address, e-mail address, and telephone number of the media coordinator and the alternate shall be on file with the clerk. The court and all interested members of the media shall work, whenever possible, with and through the media coordinator regarding all arrangements for expanded media coverage.
Source: Supreme Court Rule 01-08.
15-24-11. Technical.
(a) Video cameras, still cameras, audio equipment, and other equipment to be used by the media in the courtroom during judicial proceedings must be unobtrusive and must not produce distracting sound or bear the insignia of any media organization. Cameras are to be designed or modified so participants in the judicial proceedings are unable to determine when recording occurs.
(b) When practical, media organizations may use existing audio recording systems in the courtroom. If the media representatives determine that the existing system does not produce sound of sufficient quality, they may provide equipment. All such equipment shall be unobtrusive and shall be of adequate technical quality to prevent interference with the judicial proceedings being covered. No modifications of existing systems shall be made at public expense and without court approval.
(c) With the approval of the court or Chief Justice for the court, modifications may be made in light sources existing in the courtroom (e.g., higher wattage light bulbs), provided such modifications are installed and maintained without public expense.
Source: Supreme Court Rule 01-08.
15-24-12. Equipment and Pooling.
The following limitations on the amount of equipment and number of media personnel in the courtroom shall apply:
(a) Video cameras. Not more than two video cameras, each operated by not more than one cameraperson, shall be permitted in the courtroom during a judicial proceeding. Where possible, recording and broadcast equipment that is not a component part of a video camera shall be located outside of the courtroom at a place designated by the court.
(b) Still cameras. Not more than two still camera photographers shall be permitted in the courtroom during a judicial proceeding. Each photographer will be allowed two camera bodies.
(c) Audio. Not more than one audio system shall be set up in the courtroom for media coverage of a judicial proceeding. Audio recording shall be accomplished from any existing audio system present in the courtroom, with the court's approval, if such recording would be technically suitable for media use. Where possible, electronic audio recording equipment and any operating personnel shall be located outside of the courtroom at a place designated by the court.
(d) Personal Recorders. Reporters, in the interest of accuracy, may use hand-held audio recorders in the courtroom. Such devices must have built-in microphones that are no more sensitive than the human ear. These personal recording devices are to be used for reporters' notes and not to gather sound for redistribution by the media. As with other media equipment, such personal recorders must not produce distracting sound or bear a media organization's insignia. Tapes may not be changed when court is in session.
(e) Pooling. Where the above limitations on equipment and personnel make it necessary, the media shall be required to pool equipment and personnel. Pooling arrangements shall be the sole responsibility of the media coordinator. The court shall not be called upon to mediate any dispute as to the appropriate media representatives authorized to cover a particular judicial proceeding.
(f) Location of equipment and personnel. Equipment and operating personnel permitted inside the courtroom by these rules shall be located in, and coverage of the proceedings shall take place from, an area or areas within the courtroom designated by the court or Chief Justice for the court. The area or areas designated shall provide reasonable access to the proceeding to be covered.
Source: Supreme Court Rule 01-08.
15-24-13. Expanded media coverage permanent effective date.
The rules of procedure for expanded media coverage of Supreme Court proceedings were adopted July 24, 2001, as a pilot project. These rules shall become permanent effective July 1, 2003.
Source: SL 2003, ch 269, (Supreme Court Rule 03-11).
15-24A-1
Power to answer.
15-24A-2
Superseded.
15-24A-3
Method of invoking.
15-24A-4
Contents of certification order.
15-24A-5
Preparation of certification order.
15-24A-6
Costs of certification.
15-24A-7
Briefs and argument.
15-24A-8
Opinion.
15-24A-9
Severability.
15-24A-10
Construction.
15-24A-11
Short title.
15-24A-1. Power to answer.
The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a court of appeals of the United States, or a United States district court, if there are questions of law of this state involved in any proceeding before the certifying court which may be determinative of the cause pending in the certifying court and it appears to the certifying court and to the Supreme Court that there is no controlling precedent in the decisions of the Supreme Court of this state.
Source: SL 1984, ch 154, § 1; Supreme Court Rule 85-7, § 1.
15-24A-3. Method of invoking.
In the discretion of any of the courts referred to in § 15-24A-1, this chapter may be invoked by an order of said court upon its own motion or upon the motion of any party to the cause.
Source: Supreme Court Rule 85-7, § 2.
15-24A-4. Contents of certification order.
A certification order shall set forth
(1) The questions of law to be answered; and
(2) A statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.
Source: Supreme Court Rule 85-7, § 3.
15-24A-5. Preparation of certification order.
The certification order shall be prepared by the certifying court, signed by the judge presiding at the hearing, and forwarded to the Supreme Court by the clerk of the certifying court under its official seal. The Supreme Court may require the original or copies of all or of any portion of the record before the certifying court to be filed with the certification order, if, in the opinion of the Supreme Court, the record or portion thereof may be necessary in answering the questions.
Source: Supreme Court Rule 85-7, § 4.
15-24A-6. Costs of certification.
Fees and costs shall be the same as in civil appeals docketed before the Supreme Court and shall be equally divided between the parties unless otherwise ordered by the certifying court in its order of certification.
Source: Supreme Court Rule 85-7, § 5.
15-24A-7. Briefs and argument.
Once the Supreme Court has agreed to consider the certified question, the moving party or such party as the Supreme Court may designate shall serve and file its brief within twenty-five days after the filing of the order of acceptance. The other parties shall serve and file their briefs within twenty-five days after service of the moving or designated party's brief. The moving or designated party may serve and file a reply brief within fifteen days after service of the last brief of the other parties.
Proceedings in the Supreme Court shall be those provided in chapter 15-26A.
Source: Supreme Court Rule 85-7, § 6.
15-24A-8. Opinion.
The written opinion of the Supreme Court stating the law governing the questions certified shall be sent by the clerk under the seal of the Supreme Court to the certifying court and to the parties.
Source: Supreme Court Rule 85-7, § 7.
15-24A-9. Severability.
If any provision of this chapter or the application thereof to any person, court, or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
Source: Supreme Court Rule 85-7, § 8.
15-24A-10. Construction.
This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
Source: Supreme Court Rule 85-7, § 9.
15-24A-11. Short title.
This chapter may be cited as the Uniform Certification of Questions of Law Rule.
Source: Supreme Court Rule 85-7, § 10.
CHAPTER 15-25
ORIGINAL PROCEEDINGS IN SUPREME COURT
15-25-1 Matters in which original jurisdiction exercised.
15-25-2 Application to commence proceeding--Fee--Filing.
15-25-3 Petition for rehearing on decision.
15-25-4 Reply to petition for rehearing.
15-25-5 Docketing in circuit court and enforcement of Supreme Court judgment for money.
15-25-1. Matters in which original jurisdiction exercised.
The exercise of the original jurisdiction granted the Supreme Court by S.D. Const., Art. V, § 5, is reserved for the consideration of matters of prerogative, extraordinary, and general concern.
Source: SDC 1939 & Supp 1960, § 33.0601; SL 1984, ch 12, § 10.
15-25-2. Application to commence proceeding--Fee--Filing.
Application for permission to commence such action or proceeding and to fix the procedure to be followed therein shall be accompanied by the form of plaintiff's proposed pleading and by a filing fee. The application, proposed complaint and supporting papers, if any, shall be filed with the clerk of the Supreme Court.
Source: SDC 1939 & Supp 1960, § 33.0602; Supreme Court Order dated and effective September 14, 1972; SL 2023, ch 218 (Supreme Court Rule 23-02), eff. Apr. 1, 2023.
15-25-3. Petition for rehearing on decision.
Any party may petition for a rehearing upon a decision, in the event that any issue or question of law or fact appears to have been overlooked or misapprehended by the court, by filing and service of such petition at any time within twenty days after copy of the decision has been mailed or delivered by the clerk. Such petition shall state briefly and without argument the issue, fact or law claimed to have been overlooked or misapprehended by the court.
Source: SDC 1939 & Supp 1960, § 33.0603.
15-25-4. Reply to petition for rehearing.
Any party may reply to the petition for rehearing by serving and filing such reply at any time within ten days after the service thereof.
Source: SDC 1939 & Supp 1960, § 33.0603.
15-25-5. Docketing in circuit court and enforcement of Supreme Court judgment for money.
Whenever, in an original action in the Supreme Court, a judgment either in whole or in part directing the payment of money shall be given and entered, a transcript of such judgment may be filed and docketed in the office of the clerk of courts of any county in the state, and from the time of the docketing of such judgment the same shall become a judgment of the circuit court of such county, and shall have the same force and effect and shall be a lien upon real property as a judgment of the circuit court rendered and docketed in said county, and may be enforced as a judgment of such circuit court. This section shall not apply to judgments against the state.
Source: SDC 1939 & Supp 1960, § 33.1714.
15-26-1
Transferred.
15-26-2
Repealed.
15-26-3
Superseded.
15-26-4
Transferred.
15-26-5, 15-26-6.
Superseded.
15-26-7
Repealed.
15-26-8
Repealed.
15-26-9 to 15-26-12.
Superseded.
15-26-13
Transferred.
15-26-14
Transferred.
15-26-15
Transferred.
15-26-16
Superseded.
15-26-17
Transferred.
15-26-18
Superseded.
15-26-19, 15-26-20.
Transferred.
15-26-21
Repealed.
15-26-22
Transferred.
15-26-23 to 15-26-25.1.
Superseded.
15-26-25.2
Transferred.
15-26-25.3
Repealed.
15-26-25.4 to 15-26-25.6.
Superseded.
15-26-26
Transferred.
CHAPTER 15-26A
RULES OF CIVIL APPELLATE PROCEDURE
15-26A-1 Scope of rules.
15-26A-2 Suspension of rules.
15-26A-2.1 15-26A-2.1. Repealed by SL 2014, ch 253 (Supreme Court Rule 13-11), eff. Jan. 1, 2014.
15-26A-3 Judgments and orders of circuit courts from which appeal may be taken.
15-26A-4 Appeals of right--How taken.
15-26A-4.1 Amended notice of appeal.
15-26A-5 Affidavit of indigency in lieu of filing fee.
15-26A-6 Appeals--When taken.
15-26A-6.1 15-26A-6.1. Repealed by SL 2007, ch 306 (Supreme Court Rule 06-74), eff. Jan. 1, 2007.
15-26A-6.01 Transitional provision--Time for taking appeal.
15-26A-7 Orders and determinations of trial court subject to review on appeal from judgment.
15-26A-8 New trial motion not required for review on insufficiency of evidence or error of law.
15-26A-9 Matters subject to review on appeal from order denying new trial.
15-26A-10 Scope of review on appeal from order.
15-26A-11 Combining of appeals in one notice and one undertaking.
15-26A-12 Actions available to Supreme Court on decision.
15-26A-13 Petition for permission to take discretionary appeal.
15-26A-14 Contents of petition for appeal.
15-26A-15 Attachments to petition for appeal.
15-26A-16 Response to petition.
15-26A-17 Grant of permission to appeal--Procedure.
15-26A-18 Noncompliance with requirements and inaccurate statements as grounds for denial of appeal from intermediate order.
15-26A-19 Stay of further proceedings pending petition for appeal from intermediate order--Security required--Filing of order granting stay.
15-26A-20 Certification of record on petition for appeal from intermediate order.
15-26A-21 Terms imposed on unreasonable and vexatious petition for appeal from intermediate order.
15-26A-22 Appellee's right to obtain review.
15-26A-23 Form and amount of bond or deposit for costs.
15-26A-24 Waiver of bond or deposit--Affidavit of indigency.
15-26A-25 Stay of judgment or order in circuit court--When allowed.
15-26A-26 Appellate procedure--Money judgment--Conditions of bond on appeal.
15-26A-27 Judgment directing the assignment or delivery of documents or personal property--Conditions of bond on appeal.
15-26A-28 Judgment directing the sale or possession of real property--Conditions of bond on appeal.
15-26A-29 Judgment directing execution of an instrument--Conditions of stay.
15-26A-30 Sale of perishable property--Deposit of proceeds.
15-26A-31 Conditions of bond on appeal from other judgments and orders.
15-26A-32 Extent of stay on filing of bond.
15-26A-33 Joinder of bonds.
15-26A-34 Notice of application for bond.
15-26A-35 Personal sureties--Exceptions--Justification.
15-26A-36 Service of bond on adverse party.
15-26A-37 Proceedings against sureties on bond.
15-26A-38 Stay of execution without bond by public agency or officer.
15-26A-39 Application to Supreme Court for special relief.
15-26A-40 New undertaking required when security insufficient--Dismissal of appeal or vacation of stay on failure to file new undertaking.
15-26A-41 Deposit in lieu of undertaking--Notice of deposit.
15-26A-42 Waiver of undertaking and deposit.
15-26A-43 Failure to pay after affirmance of judgment as breach of undertaking.
15-26A-44 Liability of sureties on dismissal of appeal.
15-26A-45 Damages determined by referee after affirmance by Supreme Court.
15-26A-46 Failure to pay damages determined by referee as breach of undertaking.
15-26A-47 Composition of the record on appeal.
15-26A-48 Order for transcript of proceedings.
15-26A-49 Waiver by failure to order transcript.
15-26A-50 Determination of parts of transcript to be included.
15-26A-51 Costs of transcript--Endorsement of order by reporter--Extension of time for transcript.
15-26A-52 Form of transcript--Number of copies--Certification.
15-26A-53 Duty of clerk of trial court to assemble and certify the record--Time and manner--Transmittal of index in lieu of entire record.
15-26A-54 Statement of the proceedings when no report was made or when the transcript is unavailable.
15-26A-55 Agreed statement as the record.
15-26A-56 Correction or modification of the record.
15-26A-57 Time for transmission of record--Temporary delay--Documents of unusual bulk or weight and physical exhibits--Motion for intermediate orders.
15-26A-58 Transmittal of record for preliminary hearing.
15-26A-59 Disposition of record after appeal.
15-26A-60 Brief of appellant--Contents.
15-26A-61 Brief of appellee.
15-26A-62 Reply brief.
15-26A-63 References in briefs to parties.
15-26A-63.1 References in briefs to children.
15-26A-64 References in briefs to record.
15-26A-65 Reproduction of statutes, ordinances, rules, regulations, etc.
15-26A-66 Length of briefs.
15-26A-67 Briefs of multiple appellants or appellees.
15-26A-68 Reproduction methods used for briefs.
15-26A-69 Printing and binding specifications for briefs.
15-26A-69.1 Citation of official opinions of the Supreme Court.
15-26A-70 Brief failing to conform to requirements--Duty of clerk of Supreme Court.
15-26A-70.1 Pro se filings by party represented by counsel.
15-26A-71 Amendment of briefs--Terms for allowance.
15-26A-72 Costs not allowed for extraneous matter in briefs--Expense of printing matters omitted from appellant's brief.
15-26A-73 Supplemental brief with late authorities--Service on counsel.
15-26A-74 Brief and argument of amicus curiae.
15-26A-75 Time for serving and filing briefs.
15-26A-76 Extension of time for serving and filing briefs.
15-26A-77 Stipulation waiving default in filing of briefs--Court order extending time.
15-26A-78 Default in filing of briefs waived by court without stipulation.
15-26A-79 Number of copies of briefs to be served and filed.
15-26A-80 Consequence of failure to file briefs.
15-26A-81 Briefs mailed for filing--Time.
15-26A-82 Supreme Court calendar for oral argument--Duty of clerk.
15-26A-83 Time allowed for argument.
15-26A-84 Order and content of argument.
15-26A-85 Number of attorneys allowed to argue.
15-26A-86 Nonappearance of parties.
15-26A-87 Submission on briefs.
15-26A-87.1 Disposition on briefs and record--Grounds--Citation of decisions restricted.
15-26A-87.2 Motions--Answers to motions--Generally.
15-26A-87.3 Motion for attorney fees--Contents, form, and filing of motion.
15-26A-88 Physical exhibits used at argument.
15-26A-89 When member of court absent.
15-26A-90 Prehearing conference.
15-26A-91 Time for petition for reinstatement--Contents, form, and filing of petition.
15-26A-92 Enlargement of time.
15-26A-93 Title of chapter.
15-26A-A APPENDIX OF FORMS
15-26A-1. Scope of rules.
This chapter shall govern procedure in civil appeals to the Supreme Court of South Dakota.
Source: Supreme Court Rule 79-1, Rule 1.
15-26A-2. Suspension of rules.
In the interest of expediting decision in cases of pressing concern to the public or to litigants, or for other good cause shown, the Supreme Court, except as otherwise provided in § 15-26A-92, may suspend the requirement or provision of these rules on application of a party or on its own motion and may order proceedings in accordance with its direction.
Source: Supreme Court Rule 79-1, Rule 2.
15-26A-3. Judgments and orders of circuit courts from which appeal may be taken.
Appeals to the Supreme Court from the circuit court may be taken as provided in this title from:
(1) A judgment;
(2) An order affecting a substantial right, made in any action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken;
(3) An order granting a new trial;
(4) Any final order affecting a substantial right, made in special proceedings, or upon a summary application in an action after judgment;
(5) An order which grants, refuses, continues, dissolves, or modifies any of the remedies of arrest and bail, claim and delivery, injunction, attachment, garnishment, receivership, or deposit in court;
(6) Any other intermediate order made before trial, any appeal under this subdivision, however, being not a matter of right but of sound judicial discretion, and to be allowed by the Supreme Court in the manner provided by rules of such court only when the court considers that the ends of justice will be served by determination of the questions involved without awaiting the final determination of the action or proceeding; or
(7) An order entered on a motion pursuant to § 15-6-11.
Source: SDC 1939 & Supp 1960, § 33.0701; SDCL, § 15-26-1; SL 1971, ch 151, § 2; SL 1986, ch 160, § 2.
15-26A-4. Appeals of right--How taken.
An appeal permitted by § 15-26A-3 as of right shall be taken as follows:
(1) Notice of appeal. The notice shall specify the party or parties taking the appeal; shall designate the judgment, order, or part thereof appealed from; and shall be signed by the appellant or his or her attorney. A notice of appeal filed under chapter 26-8A shall be signed by the appellant and his or her attorney. A notice of appeal filed under chapters 26-7A, 26-8A, 26-8B and 26-8C shall comply with § 15-26A-63.1.
(2) Docketing statement. A docketing statement shall be completed for each civil appeal, other than appeals in habeas corpus actions brought under chapter 21-27, on the form prescribed by the Supreme Court. Appellant shall attach to the docketing statement the findings of fact and conclusions of law, and memorandum decision, if any.
(3) Service of the notice of appeal and docketing statement. The appellant, or his or her counsel, shall serve the notice of appeal and docketing statement on counsel of record of each party other than appellant, or, if a party is not represented by counsel, on the party at his or her last known address.
(4) Filing notice of appeal and docketing statement. Before the expiration of the time to appeal, appellant shall file the notice of appeal and docketing statement with the clerk of the trial court in which the judgment or order was entered. The clerk of the trial court shall not accept for filing a notice of appeal unless accompanied by a docketing statement and proof of service of copies thereof on each party other than the appellant, together with the required statutory filing fees unless exempt by law. The clerk of the trial court shall not accept for filing a notice of appeal under chapter 26-8A that is not signed by the appellant and his or her attorney.
(5) Transmittal to Supreme Court. Upon compliance with subdivision (4) of this section, the clerk of the trial court shall immediately transmit to the clerk of the Supreme Court certified copies of the notice of appeal, docketing statement, proof of service, the judgment or order appealed from, notice of entry thereof, and the required statutory filing fees unless exempt by law. The clerk of the trial court shall redact the signature of the appellant from any certified copy of a notice of appeal filed under chapter 26-8A that is transmitted pursuant to this subdivision.
(6) Joint appeals. If two or more parties are entitled to appeal from a judgment or order and their interests are such as to make joinder practicable, they may serve and file a joint notice of appeal, or may join in appeal after serving and filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant.
Failure of an appellant to take any step other than timely service and filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. The failure of the appellant and his or her attorney to sign a notice of appeal under chapter 26-8A deprives the Supreme Court of jurisdiction to decide the appeal.
Appeals may be consolidated by order of the Chief Justice of the Supreme Court upon motion of a party.
Source: Supreme Court Rule 79-1, Rule 3; SDCL Supp, § 15-26A-3; SL 1986, ch 445 (Supreme Court Rule 86-10); SL 1991, ch 435 (Supreme Court Rule 91-1); SL 1993, ch 390 (Supreme Court Rule 93-7); SL 2007, ch 305 (Supreme Court Rule 06-73), eff. Jan. 1, 2007.
15-26A-4.1. Amended notice of appeal.
An amended notice of appeal shall be limited to the correction of clerical errors or omissions in the original notice of appeal. It may not be used for the purpose of appealing an order or judgment entered subsequent to the filing of the original notice of appeal, except when a subsequent order or judgment amends the order or judgment from which the appeal was initially taken. The amended notice shall be served and filed pursuant to the provisions of § 15-26A-4, provided, however, that no filing fees need be paid and no docketing statement need be filed.
The service and filing of an amended notice of appeal shall not serve to extend the time within which to accomplish the applicable appellate procedure, the time therefor to be computed as hereafter provided from the dates of service or filing of the original notice of appeal.
Source: SL 1988, ch 420 (Supreme Court Rule 87-1); SL 1990, ch 423 (Supreme Court Rule 89-5).
15-26A-5. Affidavit of indigency in lieu of filing fee.
In lieu of the filing fees provided for in § 15-26A-4, appellant may file an affidavit of indigency which may be contested as provided in § 15-26A-35 for the exception to personal surety.
Source: Supreme Court Rule 79-1, Rule 7 (3); SDCL Supp, § 15-26A-13; Supreme Court Rule 82-1.
15-26A-6. Appeals--When taken.
An appeal from a judgment or order must be taken within thirty days after the judgment or order shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party.
A written notice of appeal filed before the attestation and filing of such signed judgment or order shall be deemed as filed on the date of the attestation and filing of the judgment or order.
The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the circuit court by any party pursuant to § 15-6-59 or § 15-6-50(b), or both, and the full time for appeal fixed by this section commences to run after the order made pursuant to such motion shall be signed, attested, filed and written notice of entry thereof shall have been given to the adverse party or if the circuit court fails to take action on such motion or fails to enter an order extending the time for taking action on such motion within the time prescribed, then the date shall be computed from the date on which the time for action by the circuit court expires.
Source: SDC 1939, § 33.0702; SL 1943, ch 124, § 1; SL 1961, ch 179; SDCL § 15-26-2; SL 1976, ch 149, § 2; Supreme Court Rule 79-1, Rule 4; Supreme Court Rule 79-6; SDCL Supp, § 15-26A-4; Supreme Court Rule 80-3; Supreme Court Rule 82-33; Supreme Court Rule 97-8; SL 2006, ch 333 (Supreme Court Rule 06-59), eff. July 1, 2006; SL 2008, ch 288 (Supreme Court Rule 08-02), eff. July 1, 2008; SL 2010, ch 254 (Supreme Court Rule 10-01), eff. Feb. 26, 2010.
15-26A-6.01. Transitional provision--Time for taking appeal.
For any judgment or order for which signing, attestation, filing and the provision of notice of entry thereof is completed before July 1, 2006, the time for taking an appeal under § 15-26A-6 shall be sixty days. For any judgment or order for which signing, attestation, filing and the provision of notice of entry thereof is completed on or after July 1, 2006, the time for taking an appeal under § 15-26A-6 shall be thirty days.
Source: SL 2006, ch 334 (Supreme Court Rule 06-60), eff. July 1, 2006.
15-26A-7. Orders and determinations of trial court subject to review on appeal from judgment.
On appeal from a judgment the Supreme Court may review any order, ruling, or determination of the trial court, including an order denying a new trial, and whether any such order, ruling, or determination is made before or after judgment involving the merits and necessarily affecting the judgment and appearing upon the record.
Source: SDC 1939 & Supp 1960, § 33.0710; SDCL, § 15-26-19.
15-26A-8. New trial motion not required for review on insufficiency of evidence or error of law.
Such of the matters specified in subdivisions 15-6-59(a)(6) and (7) as may have been timely presented to the trial court by motion for directed verdict, request for findings, or other apt motion, offer, or objection may be reviewed on appeal from the judgment without necessity for an application for new trial.
Source: SDC 1939 & Supp 1960, § 33.0710; SDCL, § 15-26-20; SL 1978, ch 178, § 569.
15-26A-9. Matters subject to review on appeal from order denying new trial.
When reviewing an order denying a new trial, the Supreme Court may review all matters properly and timely presented to the court by the application for a new trial.
Source: SDC 1939 & Supp 1960, § 33.0710; SDCL, § 15-26-21.
15-26A-10. Scope of review on appeal from order.
When the appeal is from any order subject to appeal, the Supreme Court may review all matters appearing on the record relevant to the question of whether the order appealed from is erroneous.
Source: SDC 1939 & Supp 1960, § 33.0710; SDCL, § 15-26-22.
15-26A-11. Combining of appeals in one notice and one undertaking.
The appellant may unite in one notice, and under one undertaking of the amount required for a single appeal, all appeals from one or more judgments and from one or more orders made in or pertaining to the same action or proceeding, subject however to all limitations of time for taking appeals.
Source: SDC 1939 & Supp 1960, § 33.0703; SDCL, § 15-26-4.
15-26A-12. Actions available to Supreme Court on decision.
By its judgment, the Supreme Court may reverse, affirm, or modify the judgment or order appealed from, and may either direct a new trial or the entry by the trial court of such judgment as the Supreme Court deems is required under the record.
Source: SDC 1939 & Supp 1960, § 33.0710; SDCL, § 15-26-26.
15-26A-13. Petition for permission to take discretionary appeal.
An appeal from an intermediate order made before trial as prescribed by subdivision 15-26A-3(6) may be sought by filing a petition for permission to appeal, together with proof of service thereof upon all other parties to the action in circuit court, with the clerk of the Supreme Court within ten days after notice of entry of such order. When a petition is forwarded to the clerk for filing by mail it shall be accompanied by an affidavit of mailing or certificate of service of mailing and shall be deemed to be filed as of the date of mailing.
The petition shall be filed with the clerk of the Supreme Court, together with the required statutory filing fees unless exempt by law.
Source: Supreme Court Rule 79-1, Rule 5 (1); SDCL Supp, § 15-26A-5; Supreme Court Rule 81-6; SL 2011, ch 245 (Supreme Court Rule 11-02), eff. July 1, 2011; SL 2023, ch 220 (Supreme Court Rule 23-03), eff. Apr. 1, 2023.
15-26A-14. Contents of petition for appeal.
The petition shall be captioned in the Supreme Court and entitled as in the circuit court. It shall contain:
(1) A statement of facts necessary to understand the question presented;
(2) A statement of the question itself;
(3) The relief sought;
(4) A concise statement, without argument, of law in support of the request;
(5) The reasons why the appeal should be allowed;
(6) Other papers and exhibits petitioner deems relevant and material; and
(7) All papers must conform to typeface specified in § 15-26A-66. Except by the Court's permission, a petition or response may not exceed 10 pages, exclusive of the accompanying documents required by subdivisions 15-26A-15(1), (2) and (3).
Source: Supreme Court Rule 79-1, Rule 5 (2); SDCL Supp, § 15-26A-6; Supreme Court Rule 80-3; Supreme Court Rule 82-14; SL 2005, ch 292 (Supreme Court Rule 05-06), effective Feb. 25, 2005; SL 2013, ch 262 (Supreme Court Rule 13-01), eff. Feb. 14, 2013.
15-26A-15. Attachments to petition for appeal.
Attachments to the petition shall include:
(1) A conformed copy of the order sought to be reviewed;
(2) All findings of fact, conclusions of law, or memorandum opinions relating thereto; and
(3) The notice of entry of the order sought to be appealed.
Source: Supreme Court Rule 79-1, Rule 5 (2) (e); SDCL Supp, § 15-26A-7; Supreme Court Rule 82-15; SL 2005, ch 293 (Supreme Court Rule 05-07), effective Feb. 25, 2005.
15-26A-16. Response to petition.
Within seven days after the service of the petition, any party to the action may serve and file a response thereto. The response shall be filed with the clerk of the Supreme Court. When a response to a petition is forwarded to the clerk for filing by mail it shall be accompanied by an affidavit of mailing or certificate of service of mailing and shall be deemed to be filed as of the date of mailing.
The petition and any response shall be submitted without oral argument unless otherwise ordered.
Source: Supreme Court Rule 79-1, Rule 5 (3); SDCL Supp, § 15-26A-8; SL 2011, ch 246 (Supreme Court Rule 11-03), eff. July 1, 2011; SL 2023, ch 221 (Supreme Court Rule 23-04), eff. Apr. 1, 2023.
15-26A-17. Grant of permission to appeal--Procedure.
If permission to appeal is granted, the clerk of the Supreme Court shall serve notice of the order granting permission to appeal by mailing a copy of the order to the clerk of the trial court and the counsel of record of each party to the action. The appellate petitioner shall then file the bond for costs as required by § 15-26A-23 and shall thereafter proceed as though the appeal had been instituted by service of a written notice of appeal. In the order granting the appeal, the court shall fix the time for the filing of the bond, briefs and the transmitting of the record if necessary.
Source: Supreme Court Rule 79-1, Rule 5 (4); SDCL Supp, § 15-26A-9.
15-26A-18. Noncompliance with requirements and inaccurate statements as grounds for denial of appeal from intermediate order.
In any case where it appears to the Supreme Court that a petitioner has willfully failed to comply with the requirements of §§ 15-26A-13 to 15-26A-17, inclusive, as to the form and contents of a petition for allowance of an appeal from an intermediate order, or has intentionally made an unfair or inaccurate statement in such petition, this shall constitute sufficient grounds for denial of the petition.
Source: SDC 1939 & Supp 1960, § 33.0707; SDCL, § 15-26-13; Supreme Court Rule 80-1.
15-26A-19. Stay of further proceedings pending petition for appeal from intermediate order--Security required--Filing of order granting stay.
Upon the filing of any petition referred to in § 15-26A-13 with the clerk of the Supreme Court, the petitioner may make application to the court for a stay of proceedings pending action of the court on such petition. The court shall grant such stay only when satisfied that the ends of justice require it, and upon such security as the court may direct to safeguard any other party against damage by reason of delay. If the court makes an order granting such stay, a certified copy thereof must be filed with the clerk of the court from which the appeal is sought. The filing of the petition shall not operate to stay proceedings except as provided in this section.
Source: SDC 1939 & Supp 1960, § 33.0705; SDCL, § 15-26-15; Supreme Court Rule 80-1.
15-26A-20. Certification of record on petition for appeal from intermediate order.
The Supreme Court, for purposes of determination of a petition for allowance of an appeal from an intermediate order, may direct the certification to the court of any portion of the record in the court below.
Source: SDC 1939 & Supp 1960, § 33.0706; SDCL, § 15-26-17.
15-26A-21. Terms imposed on unreasonable and vexatious petition for appeal from intermediate order.
In any case where the Supreme Court is satisfied that a petition for allowance of an appeal from an intermediate order has been filed without reasonable grounds, and that the filing of the same may be fairly considered vexatious, the court may impose upon the petitioner such terms as the court deems proper.
Source: SDC 1939 & Supp 1960, § 33.0707; SDCL, § 15-26-14.
15-26A-22. Appellee's right to obtain review.
An appellee may obtain review of a judgment or order entered in the same action which may adversely affect him by filing a notice of review and section B of the docketing statement required by subdivision 15-26A-4(2) with the clerk of the Supreme Court within twenty days after the service of the notice of appeal. The clerk of the Supreme Court shall not accept for filing such notice of review unless accompanied by a docketing statement and proof of service of such notice and docketing statement on all other parties. The notice of review shall specify the judgment or order to be reviewed.
Source: Supreme Court Rule 79-1, Rule 6; SDCL Supp, § 15-26A-10; SL 1986, ch 446 (Supreme Court Rule 86-11).
15-26A-23. Form and amount of bond or deposit for costs.
Unless an appellant is exempted by law, or has filed a supersedeas bond or other undertaking which includes security for the payment of costs on appeal, a bond for costs on appeal or equivalent security shall be filed by the appellant with the clerk of the circuit court within the time provided by § 15-26A-6; but security shall not be required of an appellant who is not subject to costs. The bond or equivalent security shall be in the sum or value of five hundred dollars. A bond for costs shall have sufficient surety and shall be conditioned to secure the payment of costs if the appeal is dismissed, the judgment or order affirmed, or of such costs as the Supreme Court may direct if the judgment or order is modified or affirmed in part. After a bond for costs is filed, appellee may except to the form of the bond or to the sufficiency of the surety.
Source: Supreme Court Rule 79-1, Rule 7 (1); SDCL Supp, § 15-26A-11.
15-26A-24. Waiver of bond or deposit--Affidavit of indigency.
The bond for costs, or deposit of money in lieu thereof, shall be deemed waived if appellant shall file with the clerk of the circuit court, within the time provided by § 15-26A-6, the written consent of each appellee, or an affidavit of indigency. The verity of such affidavit may be contested in the same manner as provided in § 15-26A-35 for exception to personal surety.
Source: Supreme Court Rule 79-1, Rule 7 (2); SDCL Supp, § 15-26A-12.
15-26A-25. Stay of judgment or order in circuit court--When allowed.
An appeal from a judgment or order shall not stay enforcement of proceedings in the circuit court except as provided in § 15-6-62 unless the appellant executes a supersedeas bond in the amount and form approved by the circuit court or otherwise complies with the provisions of this rule.
Source: Supreme Court Rule 79-1, Rule 8 (1); SDCL Supp, § 15-26A-14.
15-26A-26. Appellate procedure--Money judgment--Conditions of bond on appeal.
If the appeal is from a judgment directing the payment of money, the conditions of the bond required by § 15-26A-25 shall be the payment of the judgment or that part of the judgment which is affirmed together with interest thereon from the date of the judgment. The amount of the bond required collectively of all appellants may not exceed twenty-five million dollars regardless of the amount of judgment. If the appellee proves by a preponderance of the evidence that an appellant whose bond has been so limited has been dissipating assets outside the ordinary course of business to avoid payment of a judgment, the court may require the appellant to execute a bond in an amount up to the full amount of judgment.
Source: Supreme Court Rule 79-1, Rule 8 (1) (a); SDCL Supp, § 15-26A-15; SL 2004, ch 314 (Supreme Court Rule 03-13), eff. Jan. 1, 2004.
15-26A-27. Judgment directing the assignment or delivery of documents or personal property--Conditions of bond on appeal.
If the appeal is from a judgment directing the assignment or delivery of documents or personal property, the condition of the bond required by § 15-26A-25 shall be the obedience by appellant to the judgment or order of the Supreme Court. The bond provided by this section need not be furnished if the appellant places the documents or personal property in the custody of such officer or receiver as the presiding judge of the circuit court shall appoint.
Source: Supreme Court Rule 79-1, Rule 8 (1) (b); SDCL Supp, § 15-26A-16.
15-26A-28. Judgment directing the sale or possession of real property--Conditions of bond on appeal.
If the appeal is from a judgment directing the sale or delivery of possession of real property the condition of the bond required by § 15-26A-25 shall be that during the possession of such property by appellant, he will not commit or suffer to be committed any waste thereof, and that if the judgment is affirmed, he will pay the value of the use and occupation of the property, from the time of appeal until the delivery of possession thereof pursuant to the judgment.
Source: Supreme Court Rule 79-1, Rule 8 (1) (c); SDCL Supp, § 15-26A-17.
15-26A-29. Judgment directing execution of an instrument--Conditions of stay.
If the appeal is from a judgment directing the execution of a conveyance or other instrument, its execution shall not be stayed by the appeal unless the instrument shall be properly executed and deposited with the clerk of the circuit court to abide the judgment of the Supreme Court.
Source: Supreme Court Rule 79-1, Rule 8 (1) (d); SDCL Supp, § 15-26A-18.
15-26A-30. Sale of perishable property--Deposit of proceeds.
If the appeal is from a judgment directing the sale or possession of perishable property, the circuit court may order the property to be sold and the proceeds deposited in court to abide the judgment of the Supreme Court.
Source: Supreme Court Rule 79-1, Rule 8 (1) (e); SDCL Supp, § 15-26A-19.
15-26A-31. Conditions of bond on appeal from other judgments and orders.
If the appeal is from any judgment or order not expressly covered by this chapter the bond required by § 15-26A-25 shall be conditioned in such amount and form as the circuit court directs.
Source: Supreme Court Rule 79-1, Rule 8 (1) (f); SDCL Supp, § 15-26A-20.
15-26A-32. Extent of stay on filing of bond.
When an approved supersedeas bond is filed it shall stay all further proceedings in circuit court upon the judgment or order accordingly, except that the circuit court may proceed upon any other matter included in the action, not affected by the judgment or order appealed from.
Source: Supreme Court Rule 79-1, Rule 8 (2); SDCL Supp, § 15-26A-21.
15-26A-33. Joinder of bonds.
The cost bond and supersedeas bond required by this chapter may be in one instrument or several, at the option of appellant.
Source: Supreme Court Rule 79-1, Rule 8 (3); SDCL Supp, § 15-26A-22.
15-26A-34. Notice of application for bond.
When the amount, form, or effect of any bond is required to be fixed or approved by a court or judge, at least twenty-four hours' notice of the application therefor shall be given the adverse party.
Source: Supreme Court Rule 79-1, Rule 8 (4); SDCL Supp, § 15-26A-23.
15-26A-35. Personal sureties--Exceptions--Justification.
Except when the undertaking is with a corporate surety, an undertaking upon an appeal shall be of no effect unless it be accompanied by the affidavit of the sureties, in which each surety shall state that he is worth a certain sum mentioned in such affidavit, over and above all his debts and liabilities, in property within this state not by law exempt from execution, and which sum so sworn to by such sureties shall in the aggregate, be double the amount specified in such undertaking. An appellee may, however, except to the sufficiency of the sureties by service of exception upon appellant within ten days after filing of the bond. Appellant, within the next ten days and upon at least four days' notice to adverse parties, shall produce before the circuit court the sureties who thereupon may be examined on oath by adverse parties as to their sufficiency in such manner as the circuit court deems proper. If the circuit court finds the personal sureties sufficient, it shall endorse its allowance upon the undertakings and cause them to be filed with the clerk. The costs of the justification shall be paid by appellant if the sureties are found insufficient, but if found sufficient, the party or parties excepting to the sureties shall pay the costs of the justification. Unless the sureties justify as so prescribed within the allotted time, the appeal shall be regarded as if no undertaking had been given.
Source: Supreme Court Rule 79-1, Rule 8 (5); SDCL Supp, § 15-26A-24.
15-26A-36. Service of bond on adverse party.
A copy of every bond required to be furnished by §§ 15-26A-25 to 15-26A-31, inclusive, shall be filed with the clerk of the circuit court. The clerk shall not accept such bond for filing without proof of service of a copy thereof on all adverse parties.
Source: Supreme Court Rule 79-1, Rule 8 (6); SDCL Supp, § 15-26A-25.
15-26A-37. Proceedings against sureties on bond.
Whenever a bond for costs or supersedeas bond is given with one or more corporate or individual sureties, each surety thereon submits himself to the jurisdiction of the circuit court and irrevocably appoints the clerk of the circuit court as his agent upon whom any papers affecting his liability on the bond may be served. His or its liability may be enforced on motion in the circuit court without the necessity of an independent action. The motion and such notice of motion as the circuit court shall prescribe shall be served on the clerk of the circuit court, who shall forthwith mail copies to the sureties at their last known address.
Source: Supreme Court Rule 79-1, Rule 8 (7); SDCL Supp, § 15-26A-26.
15-26A-38. Stay of execution without bond by public agency or officer.
When the state, any state board or officer, any county, township, municipal corporation, school district, or its officers, in a purely official capacity, shall take an appeal, service and filing of the notice of appeal shall perfect the appeal and stay the execution or performance of the judgment or order appealed from and no undertaking or bond need be given, but the Supreme Court may, on motion, require security to be given in such form and manner as it shall in its discretion prescribe as a condition of the further prosecution of the appeal.
Source: SDC 1939 & Supp 1960, § 33.0722; SDCL, § 15-27-10; Supreme Court Rule 79-1, Rule 8 (8); SDCL Supp, § 15-26A-27.
15-26A-39. Application to Supreme Court for special relief.
A motion for the relief provided in §§ 15-26A-25 to 15-26A-38, inclusive, may be made to the Supreme Court but said motion shall show that the application to the circuit court for the relief sought is not practicable or that the circuit court has denied an application or has failed to afford the relief which the applicant requested, with the reasons given by the circuit court for its action. Said motion shall also show the reasons for the relief requested and the facts relied upon; and if the facts are subject to dispute, the motion shall be supported by affidavit or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk of the Supreme Court and normally will be considered by all members of the court, but in exceptional cases where such a procedure would be impracticable due to the requirements of time, the application may be made to and considered by a single justice of the court.
Source: Supreme Court Rule 79-1, Rule 8 (9); SDCL Supp, § 15-26A-28; Supreme Court Rule 82-2.
15-26A-40. New undertaking required when security insufficient--Dismissal of appeal or vacation of stay on failure to file new undertaking.
The Supreme Court, upon satisfactory proof that any surety to an undertaking given under this title has become insolvent, or that his circumstances have become so precarious that there is reason to apprehend that the undertaking is insufficient security, may in its discretion require the appellant to file and serve a new undertaking, with such sureties and in such time as shall be prescribed, and that in default thereof the appeal shall be dismissed or the stay of proceedings vacated, and the execution or performance of the judgment or order be allowed to be enforced without further delay.
Source: SDC 1939 & Supp 1960, § 33.0725; SDCL, § 15-28-4.
15-26A-41. Deposit in lieu of undertaking--Notice of deposit.
When the appellant is required, under any provisions of this title, to give an undertaking, he may in lieu thereof deposit with the clerk of the court in which the judgment or order appealed from is entered, a sum of money equal to the amount for which such undertaking is required to be given, and in lieu of the service of such undertaking, serve a notice of the making of such deposit. Such deposit and notice shall have the same effect as the service of the required undertaking, and be held to answer the event of the appeal upon the terms prescribed for the undertaking, in lieu of which the same is deposited.
Source: SDC 1939 & Supp 1960, § 33.0726; SDCL, § 15-28-5.
15-26A-42. Waiver of undertaking and deposit.
Any such undertaking and deposit may be waived in writing by the party for whose benefit the same is required to be made, and such waiver shall have the same effect as the giving of the undertaking would have had.
Source: SDC 1939 & Supp 1960, § 33.0726; SDCL, § 15-28-6.
15-26A-43. Failure to pay after affirmance of judgment as breach of undertaking.
In all cases a neglect for the space of thirty days after the affirmance on appeal of a judgment directing the payment of money and the filing of the remittitur in the trial court to pay the amount directed to be paid on such affirmance, shall be deemed a breach of the undertaking on such appeal.
Source: SDC 1939 & Supp 1960, § 33.0728; SDCL, § 15-28-7.
15-26A-44. Liability of sureties on dismissal of appeal.
The dismissal of an appeal by the appellant, or by the court for want of prosecution, unless the court shall at the time otherwise expressly order, shall render the sureties upon any undertaking, given under this title, liable in the same manner and to the same extent as if the judgment or order appealed from had been affirmed.
Source: SDC 1939 & Supp 1960, § 33.0728; SDCL, § 15-28-8.
15-26A-45. Damages determined by referee after affirmance by Supreme Court.
When the amount of damages to be paid by the appellant on affirmance of the judgment or order appealed from, pursuant to any undertaking, is not fixed by the judgment or decision of the Supreme Court on the appeal, the circuit court may, after the remittitur of the record from the Supreme Court is filed, order a reference to ascertain such damages, the expense of which shall be included in and recoverable with such damages.
Source: SDC 1939 & Supp 1960, § 33.0728; SDCL, § 15-28-9.
15-26A-46. Failure to pay damages determined by referee as breach of undertaking.
A neglect for a space of thirty days after the confirmation of the report of a referee, to whom a reference has been ordered for the purpose of ascertaining the damages to be paid, on the affirmance of any other judgment or order appealed from, to pay the amount of damages so ascertained and the expense of such reference, shall be deemed a breach of the undertaking on such appeal.
Source: SDC 1939 & Supp 1960, § 33.0728; SDCL, § 15-28-10.
15-26A-47. Composition of the record on appeal.
The original pleadings, papers, offered exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases.
Source: Supreme Court Rule 79-1, Rule 10 (1); SDCL Supp, § 15-26A-30; Supreme Court Rule 97-10; SL 2017, ch 226 (Supreme Court Rule 17-03), eff. Jan. 19, 2017.
15-26A-48. Order for transcript of proceedings.
Within ten days after the filing of the notice of appeal, the appellant shall order from the reporter(s) transcript(s) of the proceedings or such parts thereof as deemed necessary. The order shall be in writing on the form prescribed by the Supreme Court, and within the same period service of the order shall be made on all parties to the action and a copy shall be filed with the clerk of the circuit court.
Source: Supreme Court Rule 79-1, Rule 10 (2)(a); SDCL Supp, § 15-26A-31; Supreme Court Rule 80-3; SL 1987, ch 399 (Supreme Court Rule 86-25); SL 1995, ch 309 (Supreme Court Rule 95-2).
15-26A-49. Waiver by failure to order transcript.
Failure to order a transcript within the time fixed by this chapter shall constitute a waiver of the right to such a transcript.
Source: SDC 1939 & Supp 1960, § 33.0737; SDCL, § 15-29-9; Supreme Court Rule 80-2.
15-26A-50. Determination of parts of transcript to be included.
Unless the entire transcript is to be included, the appellant shall within the ten days' time provided in § 15-26A-48 file with the clerk of the circuit court a statement of the issues he intends to present on the appeal and shall serve on the appellee a copy of the order or certificate and of the statement. If the appellee deems a transcript of other parts of the proceedings to be necessary, he shall, within ten days after the service of the order or certificate and the statement of the appellant file with the clerk of the circuit court and serve on the appellant, the court reporter, and the clerk of the Supreme Court a designation of additional parts to be included. Unless within ten days after service of such designation the appellant has ordered such parts and has so notified the appellee, the appellee may within the following ten days either order the parts or move in the circuit court for an order requiring the appellant to do so.
Source: Supreme Court Rule 79-1, Rule 10 (2) (b); SDCL Supp, § 15-26A-32; SL 1981, ch 13, § 3; Supreme Court Rule 82-16.
15-26A-51. Costs of transcript--Endorsement of order by reporter--Extension of time for transcript.
At the time of ordering, a party must make satisfactory arrangements with the reporter for payment of the costs of the transcript and all necessary copies. If the reporter requires a prepayment, he shall immediately notify the party placing the order, who shall then have ten days to make such payment. The reporter shall acknowledge at the foot of the order the date he received it, the date prepayment was received, if such payment was required, and the date on which he expects to have the transcript completed. The reporter shall transmit the order so endorsed to the clerk of the Supreme Court. The transcript shall be completed within forty-five days after receipt of the order or, if prepayment was requested, within forty-five days after receipt of such prepayment. If the reporter cannot complete the transcript within the prescribed time, he shall request an extension of time from the clerk of the Supreme Court, and the action of the clerk of the Supreme Court shall be entered on the record and the parties notified. In the event of the failure of the reporter to file the transcript within the time allowed, the clerk of the Supreme Court shall take such steps as may be directed by the Chief Justice of the Supreme Court.
In the event that the reporter receives a copy of appellee's designation of additional parts of the proceedings to be transcribed, as provided for in § 15-26A-50, his time for preparation of the transcript shall be tolled and commence to run anew when:
(1) He receives an order from either the appellant or the appellee for additional parts of the transcript, in which case he shall endorse the order and transmit it to the clerk of the Supreme Court; or
(2) The trial court has entered its order denying appellee's motion requesting the transcription of additional parts of the proceedings, in which event the trial clerk shall transmit a copy of the order of denial to the reporter and to the clerk of the Supreme Court.
Source: Supreme Court Rule 79-1, Rule 10 (2)(c); SDCL Supp, § 15-26A-33; Supreme Court Rule 82-17; SL 1991, ch 428 (Supreme Court Rule 90-05).
15-26A-52. Form of transcript--Number of copies--Certification.
The transcript shall be in the form prescribed in the appendix of forms. The reporter shall file the original transcript with the clerk of the circuit court and shall transmit a copy to the attorney for each party to the appeal separately represented and directly to any parties not represented. In the event that more than three copies are necessary to comply with the foregoing requirement, appellant may make application, upon notice, to the circuit court for an order determining the number of copies to be served and the time of use by the parties. Copies of the transcript may be reproduced by any duplicating or copying process which produces a clear black image on white paper. The reporter shall certify the correctness of the original and all copies of the transcript. He shall notify the clerk of the Supreme Court that he has filed the original transcript and transmitted the copies.
Source: Supreme Court Rule 79-1, Rule 10 (2) (d); SDCL Supp, § 15-26A-34.
15-26A-53. Duty of clerk of trial court to assemble and certify the record--Time and manner--Transmittal of index in lieu of entire record.
Within five days after the filing of the notice of appeal, it shall be the duty of the clerk of the trial court to assemble and consecutively number the pages of all pleadings, documents, papers, and exhibits filed in said action, including any opinion which the trial court may have filed or authorized for filing, except the parties may stipulate as to the contents of the record. The clerk shall then prepare and attach an alphabetical index to the record and shall promptly serve a copy on all counsel of record and the clerk of the Supreme Court. The clerk's certified record, together with the transcript, shall constitute the record on appeal.
The Supreme Court may provide by rule or order that a certified copy of the alphabetical index shall be transmitted in lieu of the entire record, subject to the right of any party to request at any time during the pendency of the appeal that designated parts of the record be transmitted.
Source: Supreme Court Rule 79-1, Rule 10 (3); SDCL Supp, § 15-26A-35; Supreme Court Rule 81-2; Supreme Court Rule 82-10; SL 2017, ch 227 (Supreme Court Rule 17-04), eff. Jan. 19, 2017.
15-26A-54. Statement of the proceedings when no report was made or when the transcript is unavailable.
If no report of all or any part of the proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may, within fifteen days after service of the notice of appeal, prepare a statement of the proceedings from the best available means, including his recollection, and file a written notice of intention to file such a statement with the clerk of the Supreme Court and with the clerk of the trial court. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within fifteen days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court, and the statement as approved by the trial court shall be filed with the trial clerk and included in the record within fifteen days of submission. The trial clerk shall give written notice of said filing to the clerk of the Supreme Court.
Source: Supreme Court Rule 79-1, Rule 10 (4); SDCL Supp, § 15-26A-36; Supreme Court Rule 80-8.
15-26A-55. Agreed statement as the record.
In lieu of the record as defined in § 15-26A-47, the parties within fifteen days of service of the notice of appeal may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented, and file a written notice of intention to file such statement with the clerk of the Supreme Court and with the clerk of the trial court. If the statement conforms to the truth, it, together with such additions as the trial court may consider necessary to present the issues raised by the appeal, shall be approved by the trial court and filed with the trial clerk within fifteen days of preparation. As so filed, the statement shall be the record on appeal. The trial clerk shall give written notice of said filing to the clerk of the Supreme Court.
Source: Supreme Court Rule 79-1, Rule 10 (5); SDCL Supp, § 15-26A-37; Supreme Court Rule 80-8.
15-26A-56. Correction or modification of the record.
If anything material to either party is omitted from the record, is misstated therein, or is improper, the parties by stipulation, or the trial court, before the record is transmitted to the Supreme Court, or the Supreme Court, on motion by a party or on its own initiative, may direct the record be corrected and if necessary require a supplemental record be approved and transmitted.
Source: Supreme Court Rule 79-1, Rule 10 (6); SDCL Supp, § 15-26A-38.
15-26A-57. Time for transmission of record--Temporary delay--Documents of unusual bulk or weight and physical exhibits--Motion for intermediate orders.
When the briefs have been served and filed in the Supreme Court, or the time for filing briefs has expired, the clerk of the Supreme Court shall so notify the clerk of the trial court in writing, and the clerk of the trial court shall then forthwith transmit the record on appeal to the clerk of the Supreme Court. Transmission of the record is effected when the clerk of the trial court mails or otherwise forwards the record to the Supreme Court. The parties, however, by written stipulation, or the Supreme Court acting through its clerk upon motion of a party may order, for cause shown, a temporary delay in the transmission of the settled record not to exceed thirty days. Such stipulation by the parties shall be subject to review and modification by the Supreme Court upon its own motion and order.
All documents which are, in the determination of the clerk of the trial court, of unusual bulk or weight, all physical exhibits other than documents which are not of unusual bulk or weight, and such other parts of the record as the Supreme Court may designate by rule or order, or the parties may designate by written stipulation, shall not be transmitted by the clerk of the trial court as part of the settled record unless he is otherwise directed to do so in writing by the party or the clerk of the Supreme Court. A party so directing must make advanced arrangement with the clerks of the trial court and the Supreme Court for the cost, transportation, and receipt of exhibits of unusual bulk or weight and those others which he directs to be transmitted.
If prior to the time the record is transmitted, a party desires to make in the Supreme Court a motion for dismissal, for relief, for a stay pending appeal, for additional security on bond on appeal, or on a supersedeas bond, or for any intermediate order, the clerk of the trial court at the request of any party shall transmit to the Supreme Court such parts of the original record as any party shall designate.
Source: Supreme Court Rule 79-1, Rule 11 (1); SDCL Supp, § 15-26A-39; Supreme Court Rule 82-11.
15-26A-58. Transmittal of record for preliminary hearing.
The Supreme Court may also at any time before or after the completion of an appeal by order directed to the clerk of the trial court require the transmission of the record or any part thereof to the clerk of the Supreme Court.
Source: Supreme Court Rule 79-1, Rule 11 (2); SDCL Supp, § 15-26A-40.
15-26A-59. Disposition of record after appeal.
The record on appeal shall remain on file in the office of the clerk of the Supreme Court until the action has finally been disposed of. It shall then be returned to the trial court with the remittitur.
Source: Supreme Court Rule 79-1, Rule 11 (3); SDCL Supp, § 15-26A-41.
15-26A-60. Brief of appellant--Contents.
The brief of the appellant shall contain under appropriate headings and in the order here indicated:
(1) A table of contents, with page references.
(2) A table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.
(3) A jurisdictional statement setting forth the date and form of the judgment or order sought to be reviewed, and the date when the notice of appeal was filed. This statement must make it appear, in cases of appeal, that the order sought to be reviewed is appealable.
(4) A concise statement of the legal issue or issues involved, omitting unnecessary detail. Each issue shall be stated as an appellate court would state the broad issue presented. Each issue shall be followed by a concise statement of how the trial court decided it, and a list of the most relevant cases not to exceed four, and the most relevant constitutional and statutory provisions.
(5) A statement of the case and the facts. A statement of the case shall first be presented identifying the trial court and the trial judge and indicating briefly the nature of the case and its disposition in the trial court. There shall follow a statement of facts relevant to the grounds urged for reversal, modification, or other relief. The facts must be stated fairly, with complete candor, and as concisely as possible. Where it is claimed that a verdict, finding of fact, or other determination is not sustained by the evidence, the statement must set forth the particulars in which the evidence is claimed to be insufficient. Each statement of a material fact shall be accompanied by a reference to the record where such fact appears.
(6) An argument. The argument shall contain the contentions of the party with respect to the issues presented, the reasons therefore, and the citations to the authorities relied on. Each issue shall be separately presented. Needless repetition shall be avoided.
(7) A short conclusion stating the precise relief sought.
(8) An appendix. The appendix shall include:
(a) the judgment, order or decision in question and any relevant written findings of fact and conclusions of law and memorandum decision;
(b) the statements of material facts and record citations required in § 15-6-56(c)(1) and (2);
(c) any relevant portions of the pleadings, instructions, and transcripts;
(d) items enumerated in § 15-26A-65; and
(e) any other parts of the record to which the parties wish to direct the particular attention of the Court.
Any portion of a transcript or deposition included in the appendix shall be accompanied by a copy of the cover sheet which indicates the date(s) of the proceedings and the participants. Summaries, abstracts or narratives shall not be used. The pages of the appendix shall be separately numbered and the appendix shall contain a table of contents with page references. Sections of the appendix shall be tabbed and salient information highlighted.
(9) One copy of the brief filed by the appellant in any appeal from a judgment or order pursuant to chapter 26-8A shall be signed by the appellant and his or her attorney. The appellant's signature shall be omitted from the other copies of the brief that are served or filed. The copy of the brief signed by the appellant shall be filed under seal by the clerk of the Supreme Court and shall be subject to inspection only as permitted by the Court in keeping with the best interests of the child.
Source: Supreme Court Rule 79-1, Rule 12 (1); SDCL Supp, § 15-26A-42; SL 1993, ch 391 (Supreme Court Rule 93-8); SL 2003, ch 261 (Supreme Court Rule 03-02), eff. July 1, 2003; SL 2004, ch 315 (Supreme Court Rule 03-14), eff. Jan. 1, 2004; SL 2007, ch 309 (Supreme Court Rule 06-77), eff. Jan. 1, 2007.
15-26A-61. Brief of appellee.
The brief of the appellee shall conform to the requirements of § 15-26A-60. If a notice of review is filed, the appellee's brief shall contain the judgment, order or decision in question and any relevant written findings of fact, conclusions of law and memorandum decision, if different from those included in the appendix to the appellant's brief.
Source: Supreme Court Rule 79-1, Rule 12 (2); SDCL Supp, § 15-26A-43; SL 2003, ch 262 (Supreme Court Rule 03-3); SL 2004, ch 316 (Supreme Court Rule 03-15), eff. Jan. 1, 2004.
15-26A-62. Reply brief.
The appellant may file a brief in reply to the brief of the appellee. The reply brief must be confined to new matter raised in the brief of the appellee and shall not exceed the page limitation set in § 15-26A-66.
Source: Supreme Court Rule 79-1, Rule 12 (3); SDCL Supp, § 15-26A-44; SL 1993, ch 392 (Supreme Court Rule 93-9).
15-26A-63. References in briefs to parties.
In their briefs and oral arguments counsel should minimize references to parties by such designations as "appellant" and "appellee." It promotes clarity to use the designations used in the trial court, or the actual names of the parties, or descriptive terms such as "employer," "owner," "guest," "injured person," "husband," etc.
Source: Supreme Court Rule 79-1, Rule 12 (4); SDCl Supp, § 15-26A-45.
15-26A-63.1. References in briefs to children.
Pursuant to § 26-7A-112, initials shall appear on appeal record documents in the place of the child and the child's parents, guardian, or custodian who are parties to the action when an intermediate appeal or appeal is taken from a judgment, decree, or order under the provisions of chapters 26-7A, 26-8A, 26-8B, and 26-8C.
Source: SL 1993, ch 393 (Supreme Court Rule 93-10).
15-26A-64. References in briefs to record.
Whenever reference is made in the briefs to any part of the record it shall be made to the particular part of the record, suitably designated, and to the specific pages thereof.
Source: Supreme Court Rule 79-1, Rule 12 (5); SDCL Supp, § 15-26A-46.
15-26A-65. Reproduction of statutes, ordinances, rules, regulations, etc..
If determination of the issues presented requires the study of statutes, ordinances, rules, regulations, etc., or relevant parts thereof, they shall be reproduced in the brief or in an appendix at the end.
Source: Supreme Court Rule 79-1, Rule 12 (6); SDCL Supp, § 15-26A-47.
15-26A-66. Length of briefs.
(a) Monospaced Typeface. Appellant and appellee briefs in monospaced typeface shall not exceed forty pages. A reply brief and amicus curiae brief shall not exceed twenty pages. A supplemental brief shall not exceed ten pages. Monospaced type shall be no more nor no less than ten characters per inch (10 cpi).
(b) Proportionally Spaced Typeface. Appellant and appellee briefs in proportionally spaced typeface shall not exceed thirty-two pages. A reply brief and amicus curiae brief shall not exceed sixteen pages. A supplemental brief shall not exceed five pages. Nonetheless, briefs may exceed these page limitations if they otherwise comply with the type volume limitations in § 15-26A-66(b)(2). A proportionally spaced typeface must include serifs, but sans serif type may be used in headings and captions. A proportionally spaced typeface must be 12-point or larger, in both body text and footnotes.
(1) Type Style. Briefs must be set in a plain, roman style, although italics may be used for emphasis. Case names must be italicized or underlined. Boldface can only be used for case captions, section names, and argument headings. The use of all-capitals text may be applied only for case captions and section names. Nevertheless, quoted passages may use the original type styles and capitalization.
(2) Type Volume Limitation. Appellant and appellee briefs are acceptable if they contain no more than the greater of 10,000 words or 50,000 characters. A reply brief and amicus curiae brief are acceptable if they contain no more than half the type volume specified for appellant and appellee briefs.
(3) Headings, footnotes, and quotations count toward the word and character limitations. The table of contents, table of cases, jurisdictional statement, statement of legal issues, any addendum materials, and any certificates of counsel do not count toward the limitations.
(4) Certificate of Compliance. A brief submitted under § 15-26A-66(b) must include a certificate by the attorney, or an unrepresented party, that the brief complies with the type volume limitation. The certificate must state the number of words or characters in the brief. The person preparing the certificate may rely on the word or character count of the word-processing system used to prepare the brief.
(c) Upon approval of the Supreme Court, page or word limitations for briefs may be exceeded. A written request for such approval to exceed limitations shall be filed at least ten days prior to the filing date of the brief, specifying in detail the reasons why additions are necessary and stating the number of additional pages or words requested.
Source: Supreme Court Rule 79-1, Rule 12 (7); SDCL Supp, § 15-26A-48; Supreme Court Rule 80-3; SL 1993, ch 394 (Supreme Court Rule 93-11); SL 1999, ch 278.
15-26A-67. Briefs of multiple appellants or appellees.
In cases involving more than one appellant or appellee, including cases consolidated for purposes of appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs.
Source: Supreme Court Rule 79-1, Rule 12 (8); SDCL Supp, § 15-26A-49.
15-26A-68. Reproduction methods used for briefs.
Text must be reproduced with a clarity that equals or exceeds the output of a laser printer. The output of a dot-matrix printer or fax machine is not acceptable in either a brief or an appendix.
Source: Supreme Court Rule 79-1, Rule 12(9); SDCL Supp, § 15-26A-50; SL 1988, ch 422 (Supreme Court Order 87-3); SL 1999, ch 279.
15-26A-69. Printing and binding specifications for briefs.
All briefs shall substantially conform to the following standards, requirements, and conditions:
(1) Each brief shall be printed in black in a clear and legible manner on one side only of white, unglazed, opaque paper of good texture, eight and one-half inches wide and eleven inches long.
(2) The printing shall be double-spaced, except for lengthy quotations, which shall be indented and may be single spaced.
(3) The left margin shall be one and one-half inches and all other margins shall not be less than one inch. The printing shall not be right-justified.
(4) Each page of the brief, except the front index, shall be consecutively numbered in Arabic figures centered at the bottom of each page.
(5) The cover of each brief shall state the title of the action, indicating which party is appellant and which is appellee; the name of the court from which the appeal is taken; the name of the judge who tried the action; whether the brief is for the appellant or appellee; the names and addresses of the attorneys for the appellant and appellee; and the date the notice of appeal was filed.
(6) Each brief shall be securely bound on the left margin by substantial staples and binding tape or other approved binding.
Source: Supreme Court Rule 79-1, Rule 12 (9)(b); SDCL Supp, § 15-26A-51; SL 1995, ch 311 (Supreme Court Rule 95-4); SL 1999, ch 280.
15-26A-69.1. Citation of official opinions of the Supreme Court.
(1) The initial citation of any published opinion of the Supreme Court released prior to January 1, 1996, in a brief, memorandum, or other document filed with the court and the citation in the table of cases in a brief shall include a reference to the volume and page number of the South Dakota Reports or North Western Reporter in which the opinion is published. Subsequent citations within the brief, document, or memorandum shall include the page number and sufficient references to identify the initial citation.
(2) The initial citation of any published opinion of the Supreme Court released on or after January 1, 1996, in a brief, memorandum, or other document filed with the court and the citation in the table of cases in a brief shall include a reference to the calendar year in which the decision was announced, the court designation of "S.D.", and a sequential number assigned by the clerk of the Supreme Court. Citation to specific portions of the opinion shall be made to the paragraph number assigned by the clerk of the Supreme Court. A paragraph citation should be placed immediately following the sequential number assigned to the case. Subsequent citations within the brief, document, or memorandum shall include the paragraph number and sufficient references to identify the initial citation.
When available, initial citations shall include the volume and initial page number of the North Western Reporter in which the opinion is published.
Source: SL 1996, ch 312 (Supreme Court Rule 95-13); SL 2011, ch 229 (Supreme Court Rule 10-05), eff. Aug. 30, 2010.
15-26A-70. Brief failing to conform to requirements--Duty of clerk of Supreme Court.
The clerk of the Supreme Court may refuse to file a brief which does not substantially comply with the requirements of §§ 15-26A-60 to 15-26A-69, inclusive, or any brief which is not printed or reproduced in a clear and legible manner. When a brief is refused for filing the clerk shall immediately notify the party or attorney who submitted the same of the rejection. Such party shall then have ten days in which to file a brief in compliance, for which no additional costs may be taxed.
Source: Supreme Court Rule 79-1, Rule 12 (10); SDCL Supp, § 15-26A-52.
15-26A-70.1. Pro se filings by party represented by counsel.
In any appeal where a party is represented by counsel, the clerk of the Supreme Court shall not accept for filing any pro se briefs, pleadings, motions or other documents. In the event that such documents are presented for filing, the clerk shall acknowledge receipt and notify the party, and those the party has served such documents upon, that the documents are not being filed pursuant to this rule. The clerk shall notify counsel of record of the receipt of the documents and their return, including with the notification copies of such documents. This rule shall not apply to pro se pleadings or documents directed to the court concerning the performance of appellate counsel or briefs filed pursuant to State v. Korth, 2002 SD 101, 650 N.W.2d 528.
Source: SL 2009, ch 279 (Supreme Court Rule 08-09), eff. Nov. 1, 2008.
15-26A-71. Amendment of briefs--Terms for allowance.
The Supreme Court, or the Chief Justice, may permit the service and filing of amendments to any of the briefs on file in the appeal, and may in the order therefor, prescribe the time for service and filing of such an amendment and the allowance of time for reply thereto and for such terms therein as to the court may seem warranted.
Source: SDC 1939 & Supp 1960, § 33.0748; SDCL, § 15-29-28; Supreme Court Rule 80-2.
15-26A-72. Costs not allowed for extraneous matter in briefs--Expense of printing matters omitted from appellant's brief.
No costs shall be allowed for printing in the brief matters clearly unrelated to any issue raised by the appeal.
Costs may be taxed in the Supreme Court in favor of appellee and against appellant for the expense of printing in appellee's brief matters which are clearly material to the issues and omitted by the appellant from his brief.
Source: SDC 1939, § 33.0743; Supreme Court Rule, Order No. 2, 1952; SDCL, § 15-29-29; Supreme Court Rule 80-2.
15-26A-73. Supplemental brief with late authorities--Service on counsel.
Whenever a party desires to present late authorities, newly enacted legislation, or other intervening matters that were not available in time to have been included in the party's brief in chief, the party shall serve a copy thereof upon the attorney for each party to the action separately represented and upon any party who is not represented by counsel and file the supplemental brief, restricted to such new matter and otherwise in conformity with this chapter, up to the time the case is called for hearing, or by leave of court thereafter. A supplemental brief shall not exceed ten pages.
Source: Supreme Court Rule 79-1, Rule 12 (11); SDCL Supp, § 15-26A-53; SL 1993, ch 395 (Supreme Court Rule 93-12); SL 2023, ch 222 (Supreme Court Rule 23-05), eff. Apr. 1, 2023.
15-26A-74. Brief and argument of amicus curiae.
A brief of an amicus curiae may be filed only at the request of the court or by leave of the court granted upon motion and notice to the parties. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. An amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the court for cause shown shall grant leave for later filing, in which event it shall specify within what period an opposing party may answer. An amicus curiae brief shall not exceed the page limitation set in § 15-26A-66.
Amici curiae counsel will not be entitled to participate in oral argument unless counsel for either party agrees to share his time and the court allows the appearance of amici curiae counsel.
Source: Supreme Court Rule 79-1, Rule 13; SDCL Supp, § 15-26A-54; SL 1993, ch 396 (Supreme Court Rule 93-13).
15-26A-75.Time for serving and filing briefs.
(1) Appellant's brief. If a transcript is obtained prior to appeal, or if no transcript is ordered, the appellant's brief shall be due within forty-five days after service of the notice of appeal. If a transcript is ordered but not received prior to appeal, or if procedures pursuant to § 15-26A-54 or 15-26A-55 are followed, the appellant's brief shall be due within forty-five days after service of the transcript or filing of the statements provided for in § 15-26A-54 or 15-26A-55.
(2) Appellee's brief. The appellee's brief shall be due for service and filing within forty-five days after service of the appellant's brief, or in the case of multiple appellants, within forty-five days after service of the last appellant's brief.
(3) Appellant's reply brief. The appellant's reply brief shall be due for service and filing within thirty days after service of the appellee's brief, or in the case of multiple appellees, within thirty days after service of the last appellee's brief.
In any appeal from a judgment or order in an adoption or an abuse and neglect proceeding, including a judgment or order terminating parental rights, all time periods under subdivisions (1) and (2) of this section shall be reduced to twenty-five days, and the time period under subdivision (3) shall be reduced to fifteen days.
Source: Supreme Court Rule 79-1, Rule 14 (1); SDCL Supp, § 15-26A-55; Supreme Court Rule 80-3; Supreme Court Rule 80-8; SL 1990, ch 424 (Supreme Court Rule 89-6); Supreme Court Rule 97-11; SL 2007, ch 307 (Supreme Court Rule 06-75), eff. Jan. 1, 2007; SL 2020, ch 247 (Supreme Court Rule 19-17), eff. Sept. 6, 2019.
15-26A-76. Extension of time for serving and filing briefs.
The parties may allow to each other by stipulation, one extension of time not exceeding fifteen days for serving and filing the appellant's and appellee's initial brief, provided such stipulation is made and presented to the clerk of the Supreme Court before the time for filing such brief as provided in § 15-26A-75 has expired. Thereafter, no other extension of time fixed by these rules for filing briefs will be allowed, except upon application and notice. The application shall be made to the Chief Justice of the Supreme Court and shall be allowed only for good cause.
An extension of time for filing a brief in an adoption or an abuse and neglect action will be granted only upon application and notice, said application to be made to the Chief Justice of the Supreme Court and allowed only for good cause.
Source: Supreme Court Rule 79-1, Rule 14 (2); SDCL Supp, § 15-26A-56; Supreme Court Rule 97-12; SL 2007, ch 308 (Supreme Court Rule 06-76), eff. Jan. 1, 2007.
15-26A-77. Stipulation waiving default in filing of briefs--Court order extending time.
Provided that no order of dismissal has been entered, when there has been default in the serving and filing of a brief within the time fixed by § 15-26A-75, counsel may stipulate in writing waiving such default; and if there shall be attached to such stipulation an affidavit setting forth facts constituting reasonable excuse for such default, the court or Chief Justice may, in its or his discretion, make an order excusing such default and extending the time for serving and filing such brief.
Source: SDC 1939 & Supp 1960, § 33.0746; SDCL, § 15-29-24; Supreme Court Rule 80-2.
15-26A-78. Default in filing of briefs waived by court without stipulation.
Provided that no order of dismissal has been entered, when there has been default in the serving and filing of a brief, the court may, for good cause, upon application and notice, permit briefs to be served and filed without stipulation of the parties, provided, however, that opposition to said application may be served and filed within seven days after service of said application.
Source: SDC 1939 & Supp 1960, § 33.0746; SDCL, § 15-29-25; Supreme Court Rule 80-2.
15-26A-79. Number of copies of briefs to be served and filed.
A copy of each brief shall be served on the attorney for each party to the appeal separately represented and upon any party who is not represented by counsel. A copy of each brief shall be filed with the clerk of the Supreme Court. In addition to electronic submission of each brief, an original must be submitted to the clerk. The clerk shall not accept a brief for filing unless it is accompanied by admission or proof of service.
Source: Supreme Court Rule 79-1, Rule 14 (3); SDCL Supp, § 15-26A-57; SL 2019, ch 226 (Supreme Court Rule 19-05); Supreme Court Order dated Aug. 30, 2022; SL 2023, ch 223 (Supreme Court Rule 23-06), eff. Apr. 1, 2023.
15-26A-80. Consequence of failure to file briefs.
If an appellant fails to file his brief within the time provided by § 15-26A-75 or within the time as extended, an appellee may move for dismissal of the appeal. If an appellee fails to timely file his brief, he will not be heard at oral argument except by permission of the court. The clerk may not accept for filing any brief not timely submitted for filing.
Source: Supreme Court Rule 79-1, Rule 14 (4); SDCL Supp, § 15-26A-58.
15-26A-81. Briefs mailed for filing--Time.
When briefs are forwarded to the clerk for filing by mail they shall be accompanied by an affidavit of mailing or certificate of service of mailing and shall be deemed to be filed as of the date of mailing.
Source: Supreme Court Rule 79-1, Rule 14 (5); SDCL Supp, § 15-26A-59.
15-26A-82. Supreme Court calendar for oral argument--Duty of clerk.
The clerk of the Supreme Court shall keep a calendar under the direction of the Chief Justice in which the dates for oral argument shall be entered.
When an appeal or an original proceeding is set for oral argument the clerk shall give written notice by first class mail to all attorneys of record in the case stating the date and place that argument will be heard. If any party is not represented by an attorney, such notice shall be given to such party by mailing to his last known post office address. The court may in its discretion consider the appeal on the briefs and record without oral argument.
Source: Supreme Court Rule 79-1, Rule 15 (1); SDCL Supp, § 15-26A-60.
15-26A-83. Time allowed for argument.
For oral argument, unless otherwise ordered, the appellant shall be allowed twenty minutes to open, the appellee shall be allowed twenty minutes to answer and the appellant shall be allowed ten minutes for rebuttal. If additional time is deemed necessary for adequate presentation, counsel shall obtain permission from the court before commencing the argument. A party is not obliged to use all of the time allowed.
Source: Supreme Court Rule 79-1, Rule 15 (2); SDCL Supp, § 15-26A-61.
15-26A-84. Order and content of argument.
The appellant is entitled to open and conclude the argument. The opening argument shall include a fair statement of the case. Counsel should not read at length from the record, briefs, or authorities.
Source: Supreme Court Rule 79-1, Rule 15 (3); SDCL Supp, § 15-26A-62.
15-26A-85. Number of attorneys allowed to argue.
Not more than two attorneys to the side will be allowed to argue any case, except by special permission which will be granted when there are several parties on the same side with divergent interests.
Source: Supreme Court Rule 75-2, § 7; SDCL Supp, § 15-26-25.2.
15-26A-86. Nonappearance of parties.
If counsel for a party fails to appear to present argument, the court may hear argument of counsel who is present, and the case will be decided on the briefs unless the court otherwise orders.
Source: Supreme Court Rule 79-1, Rule 15 (4); SDCL Supp, § 15-26A-63.
15-26A-87. Submission on briefs.
By agreement of the parties, a case may be submitted for decision on the briefs, but the court may direct that the case be argued.
Source: Supreme Court Rule 79-1, Rule 15 (5); SDCL Supp, § 15-26A-64.
15-26A-87.1. Disposition on briefs and record--Grounds--Citation of decisions restricted.
(A) After all briefs have been filed in any appeal, the Supreme Court by unanimous action may, sua sponte, enter an order or memorandum opinion affirming the judgment or order of the trial court for the reason that it is manifest on the face of the briefs and the record that the appeal is without merit because:
(1) The issues are clearly controlled by settled South Dakota law or federal law binding upon the states;
(2) The issues are factual and there clearly is sufficient evidence to support the jury verdict or findings of fact below;
(3) The issues are ones of judicial discretion and there clearly was not an abuse of discretion; or
(4) Other good cause exists for summary affirmance, in which case the order or memorandum shall contain a succinct statement of the reason for affirmance.
(B) Notwithstanding the provision in section (A) requiring unanimous action, an order or memorandum opinion affirming the judgment or order of the trial court may be entered pursuant to subsections (1) through (4) of section (A) on a majority vote, even though the claim may have merit in the view of the minority, provided that all justices participating in the action shall agree that such summary disposition of the action may be made.
(C) After all briefs have been filed in any appeal, the Supreme Court by unanimous action may, sua sponte, enter an order or memorandum opinion reversing the judgment or order of the trial court for the reason that it is manifest on the face of the briefs and the record that it is clear the order or judgment is erroneous for one or more of the following reasons:
(1) Summary judgment was erroneously granted because a genuine issue of material fact exists;
(2) The judgment or order was clearly contrary to settled South Dakota law or federal law binding upon the states;
(3) The issue on appeal is one of judicial discretion and there clearly was an abuse of discretion; or
(4) Other good cause exists for summary reversal, in which case the order or memorandum shall contain a succinct statement of the reason for reversal.
(D) Notwithstanding the provision in section (C) requiring unanimous action, an order or memorandum opinion reversing the judgment or order of the trial court may be entered pursuant to subsections (1) through (4) of section (C) on a majority vote, even though the claim may have merit in the view of the minority, provided that all justices participating in the action shall agree that such summary disposition of the action may be made.
(E) A list indicating the disposition of all decisions rendered by the Supreme Court under this section shall be published quarterly in the Northwestern Reporter. Such decisions shall not be cited or relied upon as authority in any litigation in any court in South Dakota except when the decision establishes the law of the case, res judicata or collateral estoppel, or in a criminal action or proceeding involving the same defendant or a disciplinary action or proceeding involving the same person.
A petition for rehearing of a cause decided under this section may be served and filed pursuant to the provisions of § 15-30-4.
Costs in favor of the prevailing party shall be assessed as provided in chapter 15-30.
Source: Supreme Court Rule 81-5; Supreme Court Rule 82-20; Supreme Court Rule 82-34; Supreme Court Rule 85-3; SL 1987, ch 400 (Supreme Court Rule 86-26); Supreme Court Rule 89-25; SL 1989, ch 700, § 1; SL 2022, ch 255 (Supreme Court Rule 22-02), eff. Feb. 1, 2022.
15-26A-87.2. Motions--Answers to motions--Generally.
Unless otherwise specifically provided in this chapter, motions shall be served upon the attorney for each party to the action separately represented and upon any party who is not represented by counsel, and the motion, together with proof of service thereof, shall be filed with the clerk of the Supreme Court.
Any party may respond to a motion by filing a response, together with proof of service thereof, with the clerk of the Supreme Court within ten days after service of the motion, or within such time as may be otherwise directed by the court.
Source: SL 1988, ch 421 (Supreme Court Order 87-2); SL 1990, ch 425 (Supreme Court Rule 89-7); SL 2023, ch 224 (Supreme Court Rule 23-07), eff. Apr. 1, 2023.
15-26A-87.3. Motion for attorney fees--Contents, form, and filing of motion.
A motion for appellate attorney fees in actions where such fees may be allowable must comply with the following requirements:
(1) The motion must be accompanied by a verified, itemized statement of legal services rendered, said statement to be exclusive of costs allowable under § 15-30-6;
(2) The motion must be served and filed prior to submission of the action on its merits; and
(3) The motion and itemized statement, together with proof of service thereof, must be submitted for filing.
Consideration of a motion for attorney fees will be held in abeyance until such time as the action is considered on its merits.
Source: SL 1996, ch 317; SL 2023, ch 225 (Supreme Court Rule 23-08), eff. Apr. 1, 2023.
15-26A-88. Physical exhibits used at argument.
If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them placed in the courtroom before the court convenes on the date of the argument. After the argument, counsel shall cause the exhibits to be removed from the courtroom unless the court otherwise directs.
Source: Supreme Court Rule 79-1, Rule 15 (6); SDCL Supp, § 15-26A-65.
15-26A-89. When member of court absent.
Whenever any member of the court is not present at the oral argument of a case, such case shall be deemed submitted to such member of the court on the record, briefs, and recorded arguments. When during the consideration of a case there is a change in the personnel of the court, the case shall be deemed submitted to the members of the court sitting on the case when the case was placed on the court's calendar.
Source: Source: Supreme Court Rule 79-1, Rule 15 (7); SDCL Supp, § 15-26A-66.; SL 2011, ch 230 (Supreme Court Rule 10-06), eff. Aug. 30, 2010.
15-26A-90. Prehearing conference.
At any time before oral argument the court may direct the attorneys for the parties to appear before the court or a justice thereof for a prehearing conference to consider the simplification of the issues and such other matters as may aid in the disposition of the proceedings by the court. The court or a justice shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues to those not disposed of by admissions or agreements of counsel, and such order when entered controls the subsequent course of the proceedings unless modified to prevent manifest injustice.
Source: Supreme Court Rule 79-1, Rule 15 (8); SDCL Supp, § 15-26A-67.
15-26A-91. Time for petition for reinstatement--Contents, form, and filing of petition.
A petition for reinstatement of an appeal dismissed by the Supreme Court may be served and filed within twenty days after entry of the order of dismissal. The petition shall state briefly the ground upon which the reinstatement is sought and any underlying circumstances relevant to the dismissal. Copies of relevant affidavits, documents, and correspondence may be attached to the petition. The petition shall be filed with the clerk of the Supreme Court. Any party may serve and file answer thereto within ten days after service of the petition.
Source: Supreme Court Rule 80-4; SL 2023, ch 226 (Supreme Court Rule 23-09), eff. Apr. 1, 2023.
15-26A-92. Enlargement of time.
The Supreme Court for good cause shown may upon motion enlarge or extend the time prescribed by this chapter for doing any act or may permit an act to be done after the expiration of such time; but the Supreme Court may not enlarge the time for filing or serving a notice of appeal.
Source: Supreme Court Rule 79-1, Rule 16; SDCL Supp, § 15-26A-68; SL 2013, ch 263 (Supreme Court Rule 13-02), eff. Feb. 14, 2013.
15-26A-93. Title of chapter.
This chapter shall be known as the South Dakota Rules of Civil Appellate Procedure and may be cited as S.D.R.C. App.P. Rule ___.
Source: Supreme Court Rule 79-1, Rule 17.
1.
NOTICE OF APPEAL
2.
NOTICE OF REVIEW
3.
APPEAL TRANSCRIPTS
4.
APPELLANT'S BRIEF
5.
DOCKETING STATEMENT
6.
ORDER FOR TRANSCRIPT
Form 1 NOTICE OF APPEAL
State of South Dakota In Circuit Court
County of ________ ________ Judicial Circuit
A.B., Plaintiff,
v. Notice of Appeal
C.D., Defendant,
To: John Jones, Attorney for Plaintiff, A.B.
Please take notice, that the defendant C.D. appeals to the Supreme Court of South Dakota from
the final judgment rendered in this action on the ________ day of ________, 20 ____.
Dated this ________ day of ________, 20 ____.
____________________________
____________________________
Name and address of attorney for C.D.
(Note: The trial court caption is used on the notice of appeal, cost and supersedeas bonds, or
stipulation waiving bonds. The originals and duplicate originals are filed with the clerk of the trial
court. All subsequent documents are captioned in the Supreme Court and are filed with the clerk of
the Supreme Court.)
Admission, certificate, or affidavit of service to be added.
Source: Supreme Court Rule 79-1, Rule 17.
Form 2 NOTICE OF REVIEW
STATE OF SOUTH DAKOTA
IN THE SUPREME COURT
A.B., Plaintiff-Appellee,
v. Notice of Review
C.D., Defendant-Appellant.
To: Smith & Smith, attorneys for defendant-appellant, C.D.
Please take notice that the plaintiff-appellee, A.B., will seek review of the order of the circuit court
entered on the ________ day of ________, 20 ____, denying plaintiff's motion for new trial on the
issue of damages.
Dated this ________ day of ________, 20 ____.
____________________________
____________________________
Name and address of attorney for appellee
Admission, certificate, or affidavit of service added.
Source: Supreme Court Rule 79-1, Rule 17.
MOTIONS AND STIPULATIONS Made On Ruled On
Motion by Defendant for Directed Verdict 214 216
Stipulation, unavailability of Witness 217 218
Todd K. Onnen
CROSS-EXAMINATION
Q (By MR. SUMMER) Okay. With respect to this stocking cap, is State's Exhibit Number 13
similar to the ones you sell?
A They look exactly like the ones he bought. He bought 3 of them.
Q Okay. Go through it again. It could be one that is similar to that as opposed to the actual one.
MR. LINTON: That's argumentative, Your Honor.
THE COURT: Well, he's already answered the question previously.
MR. SUMMER: What was his answer?
THE COURT: I believe he said it could be.
MR. LINTON: Wait just a minute, Your Honor. I move that answer be stricken.
THE COURT: If in fact he answered the question it will be stricken. Any further questions, Mr.
Summer?
MR. SUMMER: No, Your Honor.
RE-DIRECT EXAMINATION
Q (By MR. LINTON) Sir, I'm going to hand you again State's Exhibit 13, and will you examine it
and tell the Court what differences if any you see between this particular exhibit and the stocking
cap you sold on January 7, 1977.
A Well, just that the way it is laying here, it's open and the ones that we have on display are folded
up like this. But other than that I don't really see any difference.
Source: Supreme Court Rule 79-1, Rule 17; SL 2016, ch 242 (Supreme Court Rule 16-03, eff. July
1, 2016.
Form 4 APPELLANT'S BRIEF
Cover Page
IN THE SUPREME COURT
STATE OF SOUTH DAKOTA
A.B., Plaintiff and Appellee,
v.
C.D., Defendant and Appellant.
Appeal from the Circuit Court, First Judicial Circuit, Yankton County, South Dakota.
The Hon. ________ Judge presiding.
Appellant's Brief
Names and addresses of attorneys for Appellant and Appellee.
The notice of appeal was filed on the ________ day of ________, 20 ____.
(1) TABLE OF CONTENTS
Page
Table of authorities 2
Legal issues 3
Statement of case and facts 4
Argument 10
Conclusion 21
Source: Supreme Court Rule 79-1, Rule 17.
Form 5 DOCKETING STATEMENT
Source: SL 1988, ch 423 (Supreme Court Order 87-4); SL 1993, ch 397 (Supreme Court Rule 93-14); SL 1998, ch 301 (Supreme Court Rule 97-44).
Form 6 ORDER FOR TRANSCRIPT
STATE OF SOUTH DAKOTA ) IN CIRCUIT COURT
SS
COUNTY OF ____________ ) ____________ JUDICIAL CIRCUIT
)
)
vs. ) ORDER FOR TRANSCRIPT(S)
)
)
)
____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____ ____
TO: COURT REPORTER(S) ____________________________________________ :
Pursuant to SDCL 15-26A-48, (name(s) of party/parties placing order) hereby orders a transcript(s)
of proceedings in the above-entitled action as indicated below:
DATE OF . TYPE OF NAME OF
PROCEEDING PROCEEDING REPORTER
__________________ _ Arraignment __________________
__________________ _ Closing Statements __________________
__________________ _ Court Trial __________________
__________________ _ Jury Trial __________________
__________________ _ Motion Hearings(s) __________________
__________________ _ Opening Statement(s) __________________
__________________ _ Sentencing __________________
__________________ _ Voir Dire __________________
__________________ _ ______________ __________________
_ (Other-Specify) ___________________
As the ordering party I hereby certify that notice of appeal was filed with the trial clerk on
______________________________, and that this order is timely made within ten days of said
filing date.
I also certify that pursuant to SDCL 15-26A-48, an original of this order has been transmitted to
each Court Reporter who took the requested proceedings; that a copy has been filed with the trial
clerk; and that service has been made upon all parties to the action as reflected in the attached
certificate of service.
DATED this ______ day of __________________________, 20____ .
Source: SL 1995, ch 310 (Supreme Court Rule 95-3).
15-26B-1
Repealed.
15-26B-2
Repealed.
15-26B-2.1
Repealed.
15-26B-3
Repealed.
15-26B-3.1 to 15-26B-13. Repealed.
CHAPTER 15-26C
SUPREME COURT ELECTRONIC FILING RULES
15-26C-1 Electronic filing.
15-26C-2 Electronic document formats.
15-26C-3 Time of filing.
15-26C-4 Electronic service.
15-26C-5 Original documents.
15-26C-6 Technical issues--Relief.
15-26C-7 Scope.
15-26C-1. Electronic filing.
(1) Except as specifically exempted by these rules or court order, attorneys shall electronically file all documents, including petitions, notices of review, motions and briefs, and any appendices with the Supreme Court through the Odyssey® electronic filing system unless advance permission is granted by the court allowing paper filing or filing through any other method. Self-represented litigants may file electronically but shall not be required to file electronically.
(2) Registered users will receive electronic notice when documents are entered into the system. Registration for electronic filing constitutes written consent to electronic service of all documents filed in accordance with these rules.
(3) A document filed electronically has the same legal effect as an original paper document.
(4) The typed attorney or party name or electronic signature on a document filed electronically has the same effect as an original manually affixed signature.
(5) A party electronically filing a document that is not accessible to the public, in whole or in part, is responsible for redaction or designating the document as confidential or sealed before transmitting it to the Supreme Court. For any document containing information where redaction is required, in whole or in part, pursuant to chapter 15-15A or order of the Supreme Court or circuit court, the original unredacted document shall also be filed electronically. It is the responsibility of the parties to seek advance approval from the Supreme Court for submitting a document as sealed or confidential if that document is not already declared confidential or sealed by existing law, court rules or order.
Source: SL 2014, ch 253 (Supreme Court Rule 13-11), eff. Jan. 1, 2014; SL 2019, ch 222 (Supreme Court Rule 19-01), dated Feb. 25, 2019; Supreme Court Order dated Aug. 30, 2022; SL 2023, ch 227 (Supreme Court Rule 23-10), eff. Apr. 1, 2023.
15-26C-2. Electronic document formats.
(1) All documents submitted to the Supreme Court in electronic form must be in portable document format (.pdf) except as follows:
(a) Parties must obtain permission from the Supreme Court Clerk in advance if they seek to submit documents in another format.
(b) Briefs shall comply with chapter 15-26A and shall consist of a single document submitted in pdf and an approved word processing format.
(c) When an appendix is filed, it shall be in .pdf format and shall be included as part of the brief document. Except for limited excerpts showing a court's reasoning, circuit court transcripts that have been filed electronically with the Supreme Court shall not be included in an appendix. A table of contents with page or paragraph reference as appropriate for each document must precede the appendix. Points of particular interest with page or paragraph reference may also be added to the table of contents. When feasible, electronic bookmarks shall be added to note the first page of each document in the appendix and may be added to note the location of points of particular interest.
Source: SL 2014, ch 253 (Supreme Court Rule 13-11), eff. Jan. 1, 2014; SL 2019, ch 223 (Supreme Court Rule 19-02); Supreme Court Order dated Aug. 30, 2022; SL 2023, ch 228 (Supreme Court Rule 23-11), eff. Apr. 1, 2023.
15-26C-3. Time of filing.
(1) A document in compliance with the Rules of Appellate Procedure and this rule and submitted electronically to the supreme court clerk by 11:59 p. m. central standard time or daylight savings time as applicable shall be considered filed on that date.
(2) After reviewing an electronically filed document, the supreme court clerk must inform the filer, through an e-mail generated by the Odyssey® system, whether the document has been accepted or rejected. A document may be rejected (a) if it is filed in the wrong court; (b) applicable filing fees are not paid or waived; (c) the document is incomplete or contains missing information; (d) or fails to comply with applicable statutory requirements or these rules.
(3) Parties filing briefs electronically must also submit an original to the supreme court clerk. For any brief filed in an appeal from a judgment or order pursuant to chapter 26-8A, the appellant shall also file a redacted brief in compliance with subdivision 15-26A-60(9).
(4) The Supreme Court may also order any party to provide additional hardcopies of any documents electronically filed.
Source: SL 2014, ch 253 (Supreme Court Rule 13-11), eff. Jan. 1, 2014; SL 2019, ch 224 (Supreme Court Rule 19-03); Supreme Court Order dated Aug. 30, 2022; SL 2023, ch 229 (Supreme Court Rule 23-12), eff. Apr. 1, 2023.
15-26C-4. Electronic service.
(1) All documents filed electronically must be served electronically through the Odyssey® system except for documents served on or by self-represented litigants. On a showing of good cause, an attorney may be granted leave by the Supreme Court to serve paper documents or to be exempt from receiving electronic service.
(2) Electronic service is not effective if the party making service learns that the attempted service did not reach the person to be served.
Source: SL 2014, ch 253 (Supreme Court Rule 13-11), eff. Jan. 1, 2014; SL 2019, ch 225 (Supreme Court Rule 19-04); Supreme Court Order dated Aug. 30, 2022; SL 2023, ch 230 (Supreme Court Rule 23-13), eff. Apr. 1, 2023.
15-26C-5. Original documents.
An original document submitted for filing in paper form may be scanned by the supreme court clerk and destroyed after thirty days.
Source: SL 2014, ch 253 (Supreme Court Rule 13-11), eff. Jan. 1, 2014.
15-26C-6. Technical issues--Relief.
On a showing of good cause, the court may grant appropriate relief if electronic filing or electronic service was not completed due to technical problems.
Source: SL 2014, ch 253 (Supreme Court Rule 13-11), eff. Jan. 1, 2014.
15-26C-7. Scope.
Unless specifically provided otherwise by this rule or inconsistent with its provisions, the Rules of Appellate Procedure contained in chapter 15-26A shall govern any electronic filings.
Source: SL 2014, ch 253 (Supreme Court Rule 13-11), eff. Jan. 1, 2014.
15-28-1
Repealed.
15-28-2
Repealed.
15-28-3
Repealed.
15-28-4 to 15-28-10. Transferred.
15-29-1
Superseded.
15-29-2
Repealed.
15-29-3 to 15-29-8.
Superseded.
15-29-9
Transferred.
15-29-10 to 15-29-14.
Superseded.
15-29-15
Repealed.
15-29-16 to 15-29-23.
Superseded.
15-29-24, 15-29-25.
Transferred.
15-29-26, 15-29-27.
Superseded.
15-29-28, 15-29-29.
Transferred.
15-29-30
Superseded.
CHAPTER 15-30
DISPOSITION OF APPEALS TO SUPREME COURT
15-30-1 Remand to trial court to permit motion for new trial.
15-30-2 Reversal, affirmance or modification of judgment or order appealed from--Entry of new judgment or order--New trial--Part of judgment or order appealed from.
15-30-3 Judgment directed for party entitled to directed verdict.
15-30-4 Time for petition for rehearing--Contents, form, and filing of petition.
15-30-5 Briefs and argument when rehearing granted--Notice to attorneys of action on petition.
15-30-6 Costs allowed to prevailing party on appeal.
15-30-7 Discretionary allowance of costs on appeal.
15-30-8 Taxation of costs and damages by clerk--Notice to attorneys.
15-30-8.1 Costs--Time and manner of payment.
15-30-9 Objections to taxation of costs on appeal--Reply to objections--Decision by court.
15-30-10 Costs on petition for rehearing.
15-30-11 Remittitur of decision and record to trial court--Further proceedings.
15-30-12 Costs and damages included in remittitur to trial court.
15-30-13 Judgment in trial court for costs and damages.
15-30-14 Supreme Court judgment remitted to trial court--Final judgment in trial court.
15-30-15 Opinion of Supreme Court transmitted with papers.
15-30-16 Repealed by SL 2012, ch 254 (Supreme Court Rule 11-17), eff. Aug. 24, 2011.
15-30-1. Remand to trial court to permit motion for new trial.
Whenever, after appeal to the Supreme Court, it shall appear to the satisfaction of the Supreme Court upon application of a party that the ends of justice require that such party should be permitted to make a motion for a new trial for a cause set forth in subdivision 15-6-59(a)(1), (2), (3), or (4), and that sufficient excuse exists for not having made said motion prior to the appeal, the Supreme Court may remand the record to the trial court for the purpose of making such motion, but no such remand shall be made unless such motion can be made and hearing thereon had in the trial court within sixty days from and after the date on which the time for appeal commences unless the Supreme Court extends the time for good cause shown.
Source: SDC 1939 & Supp 1960, § 33.0711; Supreme Court Rule 84-4; SL 2022, ch 256 (Supreme Court Rule 22-03), eff. Feb. 1, 2022.
15-30-2. Reversal, affirmance or modification of judgment or order appealed from--Entry of new judgment or order--New trial--Part of judgment or order appealed from.
Upon an appeal from a judgment or order, the Supreme Court may reverse, affirm, or modify the judgment or order, and may direct the entry of such judgment or order as the court deems required by the record, as to any or all of the parties; and may, if necessary or proper, order a new trial; and if the appeal is from a part of the judgment or order, may reverse, affirm, or modify as to the part appealed from.
Source: SDC 1939 & Supp 1960, § 33.0730.
15-30-3. Judgment directed for party entitled to directed verdict.
The Supreme Court on appeal from an order granting a new trial, or upon a review of an order denying a new trial in the action in which such motion was made, or on appeal from the judgment, may order and direct judgment to be entered in favor of the party who was entitled to have such verdict directed in his or its favor, whenever it shall appear from the testimony that the party was entitled to have such motion granted.
Source: SDC 1939, § 33.1705; Supreme Court Rule adopted May 25, 1951.
15-30-4. Time for petition for rehearing--Contents, form, and filing of petition.
A petition for the rehearing of a cause heard on appeal to the Supreme Court may be served and filed within twenty days after the date of filing of the formal opinion or the order of summary disposition. Any party may serve and file answer thereto within ten days after service of the petition. The petition shall state briefly the ground upon which a rehearing is asked and the points supposed to have been overlooked or misapprehended by the court, with proper reference to the particular portion of the printed record and to the authorities relied upon. The petition and answer may be typewritten.
Source: SDC 1939 & Supp 1960, § 33.0751; SL 1991, ch 429 (Supreme Court Rule 90-06); SL 2023, ch 231 (Supreme Court Rule 23-14), eff. Apr. 1, 2023.
15-30-5. Briefs and argument when rehearing granted--Notice to attorneys of action on petition.
If a rehearing be granted, the Supreme Court in its order will prescribe the form and time of service of briefs or provide for oral argument as may seem appropriate to the case. The clerk of the court shall notify the attorneys of record by mail of the action of the court granting or denying a petition for rehearing.
Source: SDC 1939 & Supp 1960, § 33.0751.
15-30-6. Costs allowed to prevailing party on appeal.
Costs on appeal to the Supreme Court shall be allowed to the prevailing party in civil actions and special proceedings, provided, however, that the cost of printing or reproducing briefs as set out in (3) and the cost of transcripts as set out in (4) are recoverable only if the required proof of such costs is filed with the clerk of the Supreme Court prior to entry of the court's decision. Allowable costs are set out as follows:
(1) The amount of the statutory fees of the clerk of the Supreme Court and the clerk of the trial court;
(2) For argument in the Supreme Court, thirty dollars;
(3) For printing of brief, exclusive of any appendix thereto, when printed to conform to the rules of the Supreme Court, not to exceed two dollars and fifty cents per page, or for reproduction of brief by other approved method, not to exceed fifteen cents per page times the number of necessary copies not to exceed twenty unless necessary to meet service and filing requirements, provided that the costs taxed for printing or reproducing a brief shall not exceed the actual cost thereof, which actual cost is to be evidenced by an affidavit of counsel setting out the necessary number of briefs reproduced, the number of pages per brief, and the actual per page cost;
(4) The cost of the original and two copies of the transcript necessarily procured for the purpose of an appeal record, if the same has not heretofore been taxed as costs in the trial court, such cost to be evidenced by a copy of the reporter's bill and an affidavit of counsel stating that the cost of the transcript has not been taxed in the trial court; and
(5) When a judgment is affirmed the court may, in its discretion, also award damages for the delay, not to exceed ten percent of the amount of the judgment.
Source: SDC 1939, § 33.0712; SL 1951, ch 184; SL 1961, ch 180; SL 1980, ch 167, § 1; Supreme Court Rule 85-1; SL 1992, ch 367 (Supreme Court Rule 92-2).
15-30-7. Discretionary allowance of costs on appeal.
In the following cases the costs of an appeal must be in the discretion of the Supreme Court:
(1) When a new trial shall be ordered;
(2) When a judgment shall be affirmed in part and reversed in part.
Source: SDC 1939 & Supp 1960, § 33.0713.
15-30-8. Taxation of costs and damages by clerk--Notice to attorneys.
Immediately upon filing in the office of the clerk of the Supreme Court of any opinion, decision, or judgment of the court by virtue of which any costs or damages for delay are awarded or become due as a matter of law to either party, the clerk of the Supreme Court shall compute such costs in the amounts provided by statute and from the receipted vouchers or statements of costs filed by the parties, and shall thereupon tax such costs in favor of the party entitled thereto.
The clerk of the Supreme Court shall immediately thereafter notify the attorneys of record by mail of such taxation of costs specifying the items and amounts of each as determined by him and specifying the names of the parties in favor of and against whom such costs are taxed.
Source: SDC 1939 & Supp 1960, § 33.0753.
15-30-8.1. Costs--Time and manner of payment.
Costs taxed by the Supreme Court are payable upon the expiration of twenty days from the date of the notice of taxation if no petition for rehearing has been filed. The payment for the costs shall be made payable to the prevailing party and transmitted to the clerk of the trial court. Upon receipt of the payment, the clerk shall mark the Supreme Court cost judgment satisfied and transmit the payment for the assessed costs to counsel for the prevailing party, or if the prevailing party has no counsel, directly to the prevailing party.
If a petition for rehearing is granted, costs taxed are not payable until twenty days have expired from the date of the decision entered on the rehearing.
Source: Supreme Court Rule 80-7; SL 1984, ch 12, § 13; SL 1987, ch 29, § 76; SL 1991, ch 437 (Supreme Court Rule 91-3).
15-30-9. Objections to taxation of costs on appeal--Reply to objections--Decision by court.
At any time within ten days after the mailing of such notice of taxation of costs, any party aggrieved may object to the same by serving written objections upon the other parties to the appeal and filing such objections with proof of service thereof with the clerk of the Supreme Court. If any relevant question of fact is raised, the party objecting shall serve and file with the objections, proof in the form of an affidavit or affidavits of the facts as claimed by the party. The objections may be supported by such written argument or authority as the party desires to submit in support of the same. Within five days after the service of such objections, any party to the appeal may reply thereto by serving the same with answering affidavits if any on the other parties and filing the reply with the clerk of the court. Such reply may contain such argument and authority as the party may desire to submit. Upon receipt of such objections and replies, if any, and after the time for serving and filing the same has expired, the court shall consider and decide upon the same and make such order thereon as to it may seem warranted and such order shall be final and not subject to rehearing or appeal excepting that the court will at all times reserve the right to correct any actual mistake or error existing therein.
Source: SDC 1939 & Supp 1960, § 33.0753; SL 2023, ch 232 (Supreme Court Rule 23-15), eff. Apr. 1, 2023.
15-30-10. Costs on petition for rehearing.
In the event that a petition for rehearing of the appeal be filed, the final determination of the costs and return of the same to the trial court in the remittitur shall conform to the decision on the petition for rehearing, and such additional costs as may accrue from the petition for rehearing, if granted, shall be determined likewise and taxed by the clerk or by the order of the court, if objections be made to the determination of the clerk.
Source: SDC 1939 & Supp 1960, § 33.0753.
15-30-11. Remittitur of decision and record to trial court--Further proceedings.
When the action or proceeding has been finally disposed of in the Supreme Court, certified copies of its judgment or decision, and the settled record on appeal shall be remitted to the court from which the appeal was taken, and further proceedings shall be had in accordance therewith.
Source: SDC 1939 & Supp 1960, § 33.0752.
15-30-12. Costs and damages included in remittitur to trial court.
The remittitur as returned by the clerk of the Supreme Court to the clerk of the trial court shall contain a statement of the final award of costs and damages, if any.
Source: SDC 1939 & Supp 1960, § 33.0753.
15-30-13. Judgment in trial court for costs and damages.
Upon the decision of any appeal in a civil action or proceeding by the Supreme Court and filing of the remittitur with the clerk of the court from which the appeal was taken, such clerk shall forthwith enter the judgment in favor of the successful party for the amount of any costs and damages for delay which he may have recovered in the Supreme Court and such judgment shall have the same force and effect as if rendered by the court from which the appeal was taken.
Source: SDC 1939 & Supp 1960, § 33.1713.
15-30-14. Supreme Court judgment remitted to trial court--Final judgment in trial court.
In all cases the Supreme Court shall remit its judgment or decision to the court from which the appeal was taken, to be enforced accordingly; and if from a judgment, final judgment shall thereupon be entered in the court below in accordance therewith, except where otherwise ordered.
Source: SDC 1939 & Supp 1960, § 33.0730.
15-30-15. Opinion of Supreme Court transmitted with papers.
The clerk of the Supreme Court shall in all cases, except when the order or judgment is affirmed, also transmit with the papers so returned by him a certified copy of the opinion of the Supreme Court.
Source: SDC 1939 & Supp 1960, § 33.0730.
15-30-16. Repealed by SL 2012, ch 254 (Supreme Court Rule 11-17), eff. Aug. 24, 2011.
15-38-1 to 15-38-21. Repealed.
15-38-22
(Rule 1) Right to appeal--Time for appeal.
15-38-23
(Rule 2(a)) Contents of notice of appeal--Signature.
15-38-24
(Rule 2(b)) Service of notice of appeal on parties.
15-38-25
(Rule 2(c)) Filing of notice of appeal--Proof of service.
15-38-26
(Rule 2(d)) Notice of appeal transmitted to magistrate.
15-38-27
(Rule 3(a)) Filing fee and cost bond required--Stay of proceedings.
15-38-28
(Rule 3(b)) Waiver of bond and filing fee.
15-38-29
(Rule 3(c)) Failure to prosecute appeal--Dismissal.
15-38-30
(Rule 4(a)) Forwarding record to circuit court.
15-38-31
(Rule 4(b)) Correction of record.
15-38-32
(Rule 5(a)) Verbatim record kept by magistrate--Means of recording.
15-38-33
(Rule 5(b)) Order for transcript of verbatim record--Waiver by stipulation.
15-38-34
(Rule 5(c)) Cost of transcript.
15-38-35
(Rule 5(d)) Form of transcript.
15-38-36
(Rule 6(a)) Form of briefs.
15-38-37
(Rule 6(b)) Times for service and filing of briefs.
15-38-38
(Rule 7(a)) Scope of review on appeal from magistrate judge--Disposition of case.
15-38-39
(Rule 7(b)) Appeal from lay magistrate--Additional evidence--Trial de novo.
15-38-40
(Rule 7(c)) Trial de novo when verbatim record not available.
15-38-22. (Rule 1) Right to appeal--Time for appeal.
Except where an appeal is denied by law, there shall be a right of appeal to the circuit court from any final order or judgment of the magistrate court. Appeals from such final orders and judgments must be taken within ten days after the attestation and filing of the order or judgment appealed from.
Source: Supreme Court Rule 78-4, Rule 1.
15-38-23. (Rule 2(a)) Contents of notice of appeal--Signature.
The notice of appeal shall specify the party or parties taking the appeal, shall designate the order or judgment, or part thereof, appealed from, and shall be signed by the appellant or his attorney.
Source: Supreme Court Rule 78-4, Rule 2 (a).
15-38-24. (Rule 2(b)) Service of notice of appeal on parties.
The appellant, or his counsel, shall service the notice of appeal on counsel of record of each party other than appellant, or, if the party is not represented by counsel, on the party at his last known address.
Source: Supreme Court Rule 78-4, Rule 2 (b).
15-38-25. (Rule 2(c)) Filing of notice of appeal--Proof of service.
Before the expiration of the time of appeal, the appellant shall file the notice of appeal with the clerk of the circuit court to which the appeal is to be taken. The clerk shall not accept for filing a notice of appeal unless accompanied by a proof of service of a conformed copy thereof on each party other than the appellant.
Source: Supreme Court Rule 78-4, Rule 2 (c).
15-38-26. (Rule 2(d)) Notice of appeal transmitted to magistrate.
Upon compliance with § 15-38-25 the clerk of the circuit court shall immediately transmit a certified copy of the notice of appeal to the magistrate whose order or judgment has been appealed.
Source: Supreme Court Rule 78-4, Rule 2 (d).
15-38-27. (Rule 3(a)) Filing fee and cost bond required--Stay of proceedings.
Before the expiration of the time for appeal, the appellant shall file a filing fee of ten dollars and a bond for costs on appeal or equivalent security to be approved by the court in a sum not less than one hundred dollars in any case, nor less than the amount of the judgment and costs, conditioned:
(1) To secure the payment of costs if the appeal is dismissed or the order or judgment affirmed; and
(2) To satisfy the judgment if it is affirmed.
All other proceedings before the magistrate court in the matter shall cease and be stayed from the time of the filing of the undertaking.
If the appellant prevails, the court shall award the filing fee to the appellant as court costs.
Source: Supreme Court Rule 78-4, Rule 3 (a); SL 2012, ch 111, § 1.
15-38-28. (Rule 3(b)) Waiver of bond and filing fee.
The bond described in § 15-38-27 shall be deemed waived if appellant shall file with the clerk the written consent of each appellee, and the filing fee and bond may be waived by the filing of an affidavit of indigency.
Source: Supreme Court Rule 78-4, Rule 3 (b).
15-38-29. (Rule 3(c)) Failure to prosecute appeal--Dismissal.
Failure of an appellant to take any step other than timely service and filing of a notice of appeal does not affect the validity of the appeal, but is grounds for such action as the circuit court deems appropriate, which may include dismissal of the appeal.
Source: Supreme Court Rule 78-4, Rule 3 (c).
15-38-30. (Rule 4(a)) Forwarding record to circuit court.
Upon receipt of the notice of appeal, the clerk of court shall assemble and number the pages of all pleadings, documents, papers, and exhibits filed in the action and forward them to the clerk of the circuit court within ten days of the filing of the notice of appeal.
Source: Supreme Court Rule 78-4, Rule 4 (a); SL 1994, ch 157, § 4.
15-38-31. (Rule 4(b)) Correction of record.
If anything material to either party is omitted from the record or is misstated therein, the parties by stipulation, or the magistrate or circuit court, on motion by a party or on its own initiative, may direct the record be corrected.
Source: Supreme Court Rule 78-4, Rule 4 (b).
15-38-32. (Rule 5(a)) Verbatim record kept by magistrate--Means of recording.
Except in small claims proceedings, a verbatim record of all proceedings and evidence at trials before a magistrate shall be maintained either by electrical devices or by stenographic means, as the magistrate may direct, but if any party to the action requests stenographic reporting of the proceedings, the reporting shall be done stenographically.
Source: Supreme Court Rule 78-4, Rule 5 (a).
15-38-33. (Rule 5(b)) Order for transcript of verbatim record--Waiver by stipulation.
When an appeal is taken, the appellant shall petition the circuit court for an order that a transcript of the verbatim record of the proceedings be prepared. The transcript shall be filed within thirty days of the service of the order upon the court reporter. The transcript may be waived by the filing of a stipulation between the appellant and all appellees dispensing with its preparation.
Source: Supreme Court Rule 78-4, Rule 5 (b); Supreme Court Rule 80-14.
15-38-34. (Rule 5(c)) Cost of transcript.
The cost of the preparation of the transcript shall be paid by the appellant upon the filing of the same.
Source: Supreme Court Rule 78-4, Rule 5 (c).
15-38-35. (Rule 5(d)) Form of transcript.
The transcript shall be prepared in the form and manner prescribed for transcripts in appeals to the Supreme Court.
Source: Supreme Court Rule 78-4, Rule 5 (d).
15-38-36. (Rule 6(a)) Form of briefs.
The briefs shall be prepared in the form and manner prescribed for appeals to the Supreme Court unless otherwise set by rule of the circuit court.
Source: Supreme Court Rule 78-4, Rule 6 (a).
15-38-37. (Rule 6(b)) Times for service and filing of briefs.
Unless the times are shortened by the circuit court, the appellant shall serve and file his brief within thirty days after the filing of the transcript or within thirty days after notice of appeal where there is no transcript. The appellee shall serve and file his brief within thirty days after service of appellant's brief; and appellant may serve and file a reply brief within ten days after service of appellee's brief.
Source: Supreme Court Rule 78-4, Rule 6 (b).
15-38-38. (Rule 7(a)) Scope of review on appeal from magistrate judge--Disposition of case.
When an appeal is taken to the circuit court from a judgment rendered in a magistrate court with a magistrate judge presiding, the circuit may review all matters appearing in the record relevant to the question of whether the judgment appealed from is erroneous; the circuit court may affirm, reverse, remand, or modify the judgment.
Source: Supreme Court Rule 78-4, Rule 7 (a).
15-38-39. (Rule 7(b)) Appeal from lay magistrate--Additional evidence--Trial de novo.
When an appeal is taken to the circuit court from a judgment rendered in a magistrate court with a magistrate presiding who is not law trained, the circuit court shall review the appeal as in § 15-38-38; provided, that the circuit court in its discretion, may receive further evidence, not appearing in the record or may direct that the case be tried de novo.
Source: Supreme Court Rule 78-4, Rule 7 (b).
15-38-40. (Rule 7(c)) Trial de novo when verbatim record not available.
When an appeal is taken to the circuit court from a judgment rendered in a magistrate court and no verbatim record of the proceedings is available, the circuit court shall direct that the case be tried de novo.
Source: Supreme Court Rule 78-4, Rule 7 (c).
CHAPTER 15-39
SMALL CLAIMS PROCEDURE
15-39-1 15-39-1, 15-39-2. Superseded
15-39-3 15-39-3, 15-39-4. Repealed by SL 1980, ch 168, §§ 7, 8
15-39-5 15-39-5 to 15-39-44. Superseded
15-39-45 Uniform rules of practice for circuit and magistrate courts--Purpose and scope of rules--Exemplary damages restricted.
15-39-45.1 Jurisdictional amount of claim.
15-39-46 Alternative to action begun by summons.
15-39-47 Persons authorized to act as attorney--Notice to attorney.
15-39-48 Plaintiff's statement of claim to clerk--Entry in docket--Signature--Contents--Multiple claims--Beginning of action.
15-39-49 Addresses of parties stated to clerk--Filing in docket.
15-39-50 Determination of sufficiency of plaintiff's statement.
15-39-51 Deputy clerk authorized to act--Magistrate to perform clerk's duties.
15-39-52 Entry fee--Summons not required--Statement to clerk or magistrate in lieu of pleading--Fee exemption.
15-39-53 Court rules may provide for modified procedure.
15-39-54 Time of hearing on claim.
15-39-55 Notice valid though refused by defendant--Further notice on failure of delivery.
15-39-56 Jury trial and appeal waived by plaintiff--Right to jury trial if action removed by defendant.
15-39-57 Claim of trial by court or jury by defendant--Affidavit--Special rule in designated judicial circuit governing removal to the regular civil docket of the court--Entry fee and undertaking.
15-39-58 Transmittal of papers upon removal--Pleadings and speedy trial.
15-39-59 15-39-59. Repealed by SL 2000, ch 260
15-39-60 15-39-60. Repealed by Supreme Court Rule 97-17
15-39-61 Separation of parties when removal sought as to part--Copies of papers transmitted in lieu of originals.
15-39-62 Docket entries transmitted on removal to circuit court.
15-39-63 15-39-63. Repealed by Supreme Court Rule 97-19
15-39-64 Default of defendant failing to comply with requirements.
15-39-65 Docket entry as to defense--Contents of entry.
15-39-66 Setoff or counterclaim stated by defendant--Notice to plaintiff and postponement of hearing--Answer by plaintiff--Request for jury trial or petition for removal on non-compulsory counterclaims--Provisions not compulsory.
15-39-67 Amendment of claim or answer.
15-39-68 Disposition of claim on failure of plaintiff to appear for hearing.
15-39-69 Venue.
15-39-70 Subpoenas for witnesses.
15-39-71 Witnesses and evidence received on hearing.
15-39-72 Signature of docket on determination of action.
15-39-73 Items allowable as costs--Costs assessed for delay or vexatious claim or defense--Judgment and execution for costs.
15-39-74 Court order as to method of payment of judgment--Stay of execution during compliance.
15-39-75 Grounds for vacation of judgment and stay of execution--Repayment ordered.
15-39-76 Costs awarded on motion to vacate judgment.
15-39-76.1 Notice of payment of judgment.
15-39-76.2 Cancellation of judgment or transcript--Notice by prevailing party or attorney.
15-39-77 Guardian ad litem.
15-39-78 Forms for use in small claims procedure.
15-39-79 Use of small claims procedure to collect unreimbursed medical or health care costs from other parent.
15-39-45. Uniform rules of practice for circuit and magistrate courts--Purpose and scope of rules--Exemplary damages restricted.
The Supreme Court may amend and repeal uniform rules of practice applicable to circuit and magistrate courts in this state, providing for a simple, informal, and inexpensive procedure, hereinafter called the procedure, for the determination according to the rules of substantive law, of claims in the nature of contract or tort, other than slander and libel; for the collection of fees, costs, or civil penalties assessed by local governmental entities; and for review of judgments upon such claims when justice so requires.
Exemplary or punitive damages may not be awarded under this chapter, except as provided in chapter 60-11, chapter 22-30A, and §§ 43-32-6 and 43-32-24.
Source: SDC 1939, § 33.4101; SL 1959, ch 231; SDCL § 15-39-1; SL 1971, ch 149; SL 1974, ch 153, § 19; SL 1977, ch 178, § 3; SL 1980, ch 168, § 1; Supreme Court Rule 81-4; SL 1983, ch 158, § 2; SL 1986, ch 167, § 1; SL 1992, ch 149, § 1; SL 1992, ch 150; SL 1999, ch 103, § 1; SL 2009, ch 100, § 1.
15-39-45.1. Jurisdictional amount of claim.
No claim pursuant to this chapter may exceed twelve thousand dollars, not including allowable costs or attorney fees.
Source: SL 2011, ch 106, § 1.
15-39-46. Alternative to action begun by summons.
The procedure shall not be exclusive but shall be alternative to the formal procedure for actions begun by summons.
Source: SDC 1939 & Supp 1960, § 33.4101; SDCL, § 15-39-2; Supreme Court Rule 81-4.
15-39-47. Persons authorized to act as attorney--Notice to attorney.
The term, attorney, in this chapter means an attorney-at-law, who is an active member of the State Bar of the State of South Dakota, in good standing, one of a number of partners or joint plaintiffs, acting for all, an officer, manager, or local manager of a corporation acting for it, a member, manager, or local manager of a limited liability company acting for it, or, in the case of actions by or against the State of South Dakota, its agencies, or its employees acting within the scope of their employment, a representative designated in writing by the commissioner of the Bureau of Human Resources and Administration; and, unless and until there is a removal of the action pursuant to § 15-39-57. A representative of the Bureau of Human Resources and Administration is not required to have an appointment from the attorney general in order to appear in small claims court. The term includes an assignee of any claim, or the agent, manager, or officer of an assignee of any claim, if the assignment is bona fide and for a valuable consideration. Any assignment made for collection purposes only is considered bona fide, within the meaning of this chapter. In the event of removal pursuant to § 15-39-57, the term does not include such assignee or officer, agent, manager or local manager thereof or of a corporation or representative designated by the commissioner of human resources and administration.
Notice to such attorney for a party shall be equivalent to notice to such party.
Source: SDC 1939, § 33.4106; Supreme Court Rule adopted May 1, 1942; SDCL § 15-39-7; SL 1978, ch 147, § 1; Supreme Court Rule 81-4; SL 1996, ch 5, § 4; SL 2014, ch 251 (Supreme Court Rule 13-09), eff. Jan. 1, 2014; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
15-39-48. Plaintiff's statement of claim to clerk--Entry in docket--Signature--Contents--Multiple claims--Beginning of action.
The plaintiff initiating the action or the plaintiff's attorney shall complete the information on the small claims form available in the clerk of courts office, and provide a written and signed statement of the cause of action to the clerk who shall docket the action. The statement must contain the facts upon which the claim is based and be accompanied by supporting documents. A cause of action is defined as a claim arising out of the same transaction or incident. Multiple claims or causes of action by multiple parties may be brought against a defendant, or against defendants provided liability is joint and several. The docketing by the clerk shall be deemed the beginning of the action.
Source: SDC 1939 & Supp 1960, § 33.4108; SDCL, § 15-39-8; Supreme Court Rule 81-4; SL 1988, ch 424 (Supreme Court Rule 87-5); Supreme Court Rule 98-29; SL 2001, ch 299 (Supreme Court Rule 01-07).
15-39-49. Addresses of parties stated to clerk--Filing in docket.
The plaintiff or attorney shall also provide in writing to the clerk the plaintiff's and the defendant's place of residence, usual place of business, and the place of employment, or such thereof as the clerk may deem necessary, including the street and number, if any; and the clerk shall file the same in the docket.
Source: SDC 1939 & Supp 1960, § 33.4108; SDCL, § 15-39-9; Supreme Court Rule 81-4.
15-39-50. Determination of sufficiency of plaintiff's statement.
The clerk shall serve in a supervisory role to determine whether or not plaintiff has met the criteria of sufficiency and clarity.
If the clerk deems the statement of a cause of action insufficient, the court at the request of the plaintiff or the clerk shall decide whether such cause of action shall be received.
Source: SDC 1939 & Supp 1960, § 33.4108; SDCL, § 15-39-10; Supreme Court Rule 81-4.
15-39-51. Deputy clerk authorized to act--Magistrate to perform clerk's duties.
The word "clerk" in this chapter shall include a deputy clerk. If a claim is filed with a magistrate, the duties to be performed by the clerk in this chapter shall be performed by the magistrate.
Source: SDC 1939, § 33.4106; Supreme Court Rule adopted May 1, 1942; SDCL, § 15-39-6; SL 1977, ch 173, § 2; Supreme Court Rule 81-4.
15-39-52. Entry fee--Summons not required--Statement to clerk or magistrate in lieu of pleading--Fee exemption.
The procedure shall include the beginning of actions with an entry fee of four dollars for actions up to one hundred dollars, ten dollars for actions up to one thousand dollars, and twenty dollars for actions over one thousand dollars, but without summons, and without requirement, except by special order of the magistrate or court, of other pleading than the written and signed statement to the clerk of courts, or magistrate. No fee may be required of the state, its officers, boards, agencies and commissions, or its political subdivisions, in any action commenced by the state or a political subdivision.
Source: SDC 1939 & Supp 1960, § 33.4101; SL 1961, ch 181; SDCL, § 15-39-5; SL 1977, ch 173, § 1; Supreme Court Rule 81-4; SL 1984, ch 148, § 1.
15-39-53. Court rules may provide for modified procedure.
The procedure shall include notice by registered or certified mail, return receipt, in addition to all other forms of legal service, and shall further include provisions for early hearing of actions thus begun. The provisions may include the modification of any or all of existing rules of pleading and practice and a stay of the entry of judgment or of the issue of execution.
Source: SDC 1939 & Supp 1960, § 33.4101; SDCL, § 15-39-11; Supreme Court Rule 81-4.
15-39-54. Time of hearing on claim.
The clerk shall fix the time set for the hearing or answer which shall not be less than five days from the beginning of the action. The time fixed should be sufficient to enable registered or certified mail, return receipt, by regular course to reach defendant and to enable defendant to appear or answer before the time fixed for the hearing or answer.
Source: SDC 1939 & Supp 1960, § 33.4109; SDCL, § 15-39-12; Supreme Court Rule 81-4.
15-39-55. Notice valid though refused by defendant--Further notice on failure of delivery.
Notice shall be valid although refused by the defendant and, therefore, not delivered. If the notice is returned undelivered, without refusal by the defendant, or if in any other way it appears that notice has not reached the defendant, the clerk shall issue, at the request of the plaintiff and at the expense of the plaintiff, such other or further notice as the court may order. If plaintiff elects not to pursue further notification of the defendant or if the further notification is unsuccessful after ninety days, the clerk may dismiss the action without prejudice.
Source: SDC 1939 & Supp 1960, § 33.4110; SDCL § 15-39-15; Supreme Court Rule 81-4; SL 1988, ch 425 (Supreme Court Rule 87-6); SL 2008, ch 289 (Supreme Court Rule 08-03), eff. July 1, 2008.
15-39-56. Jury trial and appeal waived by plaintiff--Right to jury trial if action removed by defendant.
A plaintiff beginning an action under the procedure shall be deemed to have waived a trial by jury and the right of appeal unless the action is removed, for formal hearing, to the regular civil docket of either circuit or magistrate court as hereinafter provided, in which case the plaintiff shall have the same right to claim a trial by jury and appeal as if the action had been begun in the circuit or magistrate court.
Source: SDC 1939 & Supp 1960, § 33.4102; SDCL, § 15-39-16; Supreme Court Rule 81-4; Supreme Court Rule 97-13; SL 2000, ch 258 (Supreme Court Rule 00-4).
15-39-57. Claim of trial by court or jury by defendant--Affidavit--Special rule in designated judicial circuit governing removal to the regular civil docket of the court--Entry fee and undertaking.
No party may appeal any decision entered under this procedure. In lieu thereof, defendant may, five days prior to the date upon which the defendant is notified to appear or answer, file in the court in which the action is pending, a petition to remove the action to the regular civil docket of the circuit court or magistrate court and state therein whether the defendant intends to proceed with a trial by jury or a trial to the court. Failure to make the request within the time provided shall be deemed an acceptance by the defendant to the jurisdiction of small claims court. The petition shall be supported by an affidavit that makes a showing that there are good reasons why the formal civil trial process is justified and the defendant has a meritorious defense. The sum of thirty-five dollars for entry of the action for trial in the circuit or magistrate court, as the case may be, must accompany the petition and affidavit. The defendant must also deposit the sum of two hundred fifty dollars to secure the plaintiff for costs and/or damages which the court may determine the plaintiff is reasonably entitled to receive.
Source: SDC 1939 & Supp 1960, § 33.4102; SDCL, § 15-39-17; SL 1977, ch 173, § 3; Supreme Court Rule 81-4; SL 1991, ch 168; Supreme Court Rule 97-14; SL 2000, ch 259 (Supreme Court Rule 00-5).
15-39-58. Transmittal of papers upon removal--Pleadings and speedy trial.
Upon removal, the clerk of courts shall forthwith transmit such original papers or attested copies thereof and the circuit or magistrate court may try the action as transmitted or may require pleading as in an action by summons, but the action shall be marked for trial on the list of causes advanced for speedy trial by jury.
Source: SDC 1939 & Supp 1960, § 33.4102; SDCL, § 15-39-18; Supreme Court Rule 81-4; Supreme Court Rule 97-15.
15-39-61. Separation of parties when removal sought as to part--Copies of papers transmitted in lieu of originals.
In any action brought by or against two or more persons in which separate judgments are authorized by law, the party seeking removal may specify in the petition of jury trial the parties as to whom such trial is claimed, in which case the cause shall be removed as to such parties only as are specified in the petition and the court before whom the case is brought shall retain jurisdiction as to the remainder. In such case the clerk of court shall transmit attested copies of the papers in the action to the clerk of the circuit or magistrate court in lieu of the originals.
Source: SDC 1939 & Supp 1960, § 33.4103; SDCL, § 15-39-21; Supreme Court Rule 81-4; Supreme Court Rule 97-18.
15-39-62. Docket entries transmitted on removal to circuit court.
Upon removal of a cause to the circuit or magistrate court the original docket entries, or in case of removal by some of several defendants, an attested copy thereof shall be transmitted to the clerk of the circuit or magistrate court.
Source: SDC 1939 & Supp 1960, § 33.4119; SDCL, § 15-39-22; Supreme Court Rule 81-4.
15-39-64. Default of defendant failing to comply with requirements.
A defendant, unless the court shall otherwise order, shall be defaulted unless he shall, personally or by attorney, comply with the requirements of the notice served upon him.
Source: SDC 1939 & Supp 1960, § 33.4111; SDCL, § 15-39-27; Supreme Court Rule 81-4.
15-39-65. Docket entry as to defense--Contents of entry.
The clerk shall cause the substance of the defense to be entered in the docket, and the docket entry shall be deemed the answer. The answer shall state fully and specifically in writing, but in concise and untechnical form, what parts of the claim are contested, and the grounds of such contest.
Demurrers, dilatory pleas, and the answer of general denial are prohibited.
Source: SDC 1939 & Supp 1960, § 33.4111; SDCL, § 15-39-28; Supreme Court Rule 81-4; SL 1988, ch 427 (Supreme Court Rule 87-8).
15-39-66. Setoff or counterclaim stated by defendant--Notice to plaintiff and postponement of hearing--Answer by plaintiff--Request for jury trial or petition for removal on non-compulsory counterclaims--Provisions not compulsory.
The defendant within the time for answer may, in the manner provided in § 15-39-48, claim any setoff or counterclaim within the jurisdiction of the court in civil cases. Upon the making of such claim by the defendant, the clerk shall give a notice to the plaintiff, at the expense of the defendant, similar to that provided by § 15-39-78, and shall postpone the hearing of the original claim until the time set for hearing the defendant's claim, and shall notify the parties accordingly. The defendant's claim shall be answered within the time and in the manner provided by §§ 15-39-64 and 15-39-65, and the penalties upon defendants provided by § 15-39-64 shall apply to plaintiffs in respect to claims by a defendant. The original claim and the claim of setoff or counterclaim shall be deemed one case. The compulsory counterclaim rule does not apply in small claims court .
Upon the filing of a setoff or counterclaim, plaintiff has the same right of removal as defendant has under § 15-39-57. This request must be made at least five days before the date plaintiff is notified to appear or answer. Unless the action is removed, the plaintiff has no right to appeal a decision reached on any counterclaim or setoff.
Source: SDC 1939 & Supp 1960, § 33.4112; SDCL, § 15-39-29; Supreme Court Rule 81-4; SL 1997, ch 323 (Supreme Court Rule 97-20); SL 2000, ch 261 (Supreme Court Rule 00-7).
15-39-67. Amendment of claim or answer.
The court may at any time allow any claim or answer to be amended.
Source: SDC 1939 & Supp 1960, § 33.4113; SDCL, § 15-39-30; Supreme Court Rule 81-4.
15-39-68. Disposition of claim on failure of plaintiff to appear for hearing.
If the plaintiff does not appear at any time set for hearing, the court may dismiss the claim for want of prosecution or enter a finding on the merits for the defendant or make such other disposition as may be proper.
Source: SDC 1939 & Supp 1960, § 33.4114; SDCL, § 15-39-32; Supreme Court Rule 81-4.
15-39-69. Venue.
The venue is limited to the county of the residence of the defendant, if the defendant is a natural person, or the county in which the cause of action arose. If the defendant is a corporation, limited liability company, or a partnership, the proceedings shall be commenced in any county in which the defendant has its place of business. No change of venue may be recognized except by stipulations of the parties, or by order of the court on a showing of good cause by the defendant. Nothing in this section waives the common law doctrine of sovereign immunity or acts as a consent to suit by the State of South Dakota, its agencies, or its employees acting within the scope of their employment.
Source: SDC 1939 & Supp 1960, § 33.4107; SDCL, § 15-39-33; Supreme Court Rule 81-4; SL 1982, ch 167; SL 1994, ch 351, § 38; SL 1996, ch 5, § 5; SL 2021, ch 14, § 5.
15-39-70. Subpoenas for witnesses.
Subpoenas for witnesses, if requested, will be issued by the clerk and served according to the specifications of § 15-6-45(c).
Source: SDC 1939 & Supp 1960, § 33.4109; SDCL, § 15-39-34; Supreme Court Rule 81-4; SL 1988, ch 428 (Supreme Court Rule 87-9).
15-39-71. Witnesses and evidence received on hearing.
Witnesses shall be sworn; but the court shall conduct the hearing in such order and form and with such methods of proof as it deems best suited to discover the facts and to determine the justice of the case. Interrogatories shall not be filed nor depositions taken, except by leave of court.
Source: SDC 1939 & Supp 1960, § 33.4114; SDCL, § 15-39-35; Supreme Court Rule 81-4.
15-39-72. Signature of docket on determination of action.
After the determination of the action, the judge or magistrate shall affix his signature to the docket card.
Source: SDC 1939 & Supp 1960, § 33.4114; SDCL, § 15-39-36; Supreme Court Rule 81-4.
15-39-73. Items allowable as costs--Costs assessed for delay or vexatious claim or defense--Judgment and execution for costs.
The actual cash disbursements of the prevailing party for entry fee, mailing fees, witness fees, and officers' fees shall be allowed as costs. No other costs shall be allowed either party, except by special order of the court. The court shall have power in its discretion to award costs, including attorney fees, in a sum fixed by the court, not exceeding five hundred dollars (exclusive of such cash disbursements, or in addition thereto) against any party, whether the prevailing party or not, who has set up a frivolous or vexatious claim or defense, or has made an unfair, insufficient, or misleading answer, or has otherwise sought to hamper a party or the court in securing a speedy determination of the claim upon its merits; and to enter judgment and issue execution therefor, or set off such costs against damages or costs, as justice may require.
Source: SDC 1939 & Supp 1960, § 33.4116; SDCL, § 15-39-38; Supreme Court Rule 81-4; SL 1986, ch 167, § 2; Supreme Court Rule 97-21.
15-39-74. Court order as to method of payment of judgment--Stay of execution during compliance.
The court may order that the judgment shall be paid to the prevailing party at a certain date or by specified installments, and may stay the issue of execution and other supplementary process during compliance with such order. Such stay shall at all times be subject to being modified or vacated.
Source: SDC 1939 & Supp 1960, § 33.4117; SDCL, § 15-39-39; Supreme Court Rule 81-4.
15-39-75. Grounds for vacation of judgment and stay of execution--Repayment ordered.
The court may at any time after entry of judgment, upon motion, and after such notice, by mail or otherwise, as it may order, for cause shown, vacate any judgment entered under this procedure, for want of actual notice to a party, for error or for any other cause that the court may deem sufficient, and may stay or supersede execution.
The court may also order the repayment of anything collected under such judgment, and may enter judgment and issue execution therefor; but no order shall affect the title of any bona fide holder for value under said judgment.
Source: SDC 1939 & Supp 1960, § 33.4118; SDCL, § 15-39-40; Supreme Court Rule 81-4.
15-39-76. Costs awarded on motion to vacate judgment.
Costs in an amount fixed by the court not exceeding two hundred fifty dollars may be awarded, in the discretion of the court, for or against either party to a motion to vacate judgment, and judgment may be entered and execution may be issued therefor, and any action by the court may be made conditional upon the payment of such costs of the performance or any other proper condition.
Source: SDC 1939 & Supp 1960, § 33.4118; SDCL, § 15-39-41; Supreme Court Rule 81-4; SL 1987, ch 29, § 77; Supreme Court Rule 97-22.
15-39-76.1. Notice of payment of judgment.
The lienholder shall notify the clerk upon full payment of the judgment, and the clerk shall satisfy the judgment at no charge to the parties involved. Upon receipt of a claim by the debtor that the judgment has been paid in full but has not been satisfied by the lienholder, the court shall issue an order to show cause requiring the lienholder appear and show cause why the judgment should not be satisfied.
Source: Supreme Court Rule 81-7; SL 2005, ch 294 (Supreme Court Rule 05-08), effective Feb. 25, 2005.
15-39-76.2. Cancellation of judgment or transcript--Notice by prevailing party or attorney.
Any judgment or transcript of a judgment rendered or docketed in small claims court shall be cancelled and discharged by the clerk of courts upon written notice by either the party in whose favor the judgment was obtained or that party's attorney.
Source: SL 1988, ch 179.
15-39-77. Guardian ad litem.
When a minor is a party to a small claims action, a parent or guardian or conservator shall be considered a guardian ad litem for purpose of commencing said action or receiving service thereof.
Source: Supreme Court Rule 81-4; SL 1993, ch 213, § 92.
15-39-78. Forms for use in small claims procedure.
The following forms are prescribed for use in small claims procedure, but failure to use or fill out completely or accurately any of the same shall not avoid any acts done pursuant to this chapter provided compliance with the preceding sections is made and the information required by such sections or the following forms is substantially and accurately recorded and furnished in writing as required by this chapter.
STATE OF SOUTH DAKOTA )
) SS IN SMALL CLAIMS COURT
COUNTY OF _____________ )
NOTICE TO PLAINTIFF AND DEFENDANT OF TIME FOR HEARING
TO: ________________________________
Plaintiff
TO: ________________________________
Defendant
The Defendant has denied your claim in whole or in part.
The Court will hold a hearing on this claim on ____, ____, 20____, at ____ M. in the hearing room/courtroom at __________, __________, South Dakota.
If your claim is supported by witnesses, account books, receipts or other documents, you should produce them at the hearing. Subpoenas for witnesses, if requested in advance, will be issued by the Clerk.
If you have any questions you should contact the Clerk of this Court.
Dated this ____ day of ____, 20____.
_____________________________________
Magistrate Clerk
By:
_____________________________________
Address
_____________________________________
Phone
STATE OF SOUTH DAKOTA )
) SS IN SMALL CLAIMS COURT
COUNTY OF _____________ )
_________________________, Plaintiff vs. _________________________, Defendant
NOTICE OF SMALL CLAIMS LAWSUIT
TO:__________________________________
___________________________________ has made a claim against you in this Court for the following sum: $____________________
Amount of Claim
Description of Claim: ___________________________________________________________
You will lose this lawsuit and a judgment by default will be entered against you for the full amount of the claim at ____ o'clock ____ M., ____, ____, 20____, UNLESS you personally appear at or notify this office at least ____ days prior to that time and deny the claim in whole or in part specifying your reason for denial.
IF YOU DENY THIS CLAIM:
____ The matter will be heard at the time and place set forth above.
____ The Plaintiff will be notified of your denial and the matter will be set for hearing and the parties notified of the time and place.
If you make such a denial, you must appear at the hearing and should bring with you such evidence, witnesses, account books, receipts or documents upon which you rely to support your denial. Subpoenas for witnesses, if requested by you in advance of hearing, will be issued by the Clerk.
If you admit the claim but desire time to pay, you must appear on or before the above date personally or by attorney, and state to the Clerk that you desire time to pay and show your reasons therefor.
If you have any questions, you should contact the Clerk of this Court.
Dated this ____ day of ____, 20____.
_____________________________________
Magistrate Clerk
By:
_____________________________________
Address
_____________________________________
Phone
STATE OF SOUTH DAKOTA ) IN CIRCUIT COURT
) ss _______ JUDICIAL CIRCUIT
COUNTY OF __________ ) SMALL CLAIMS COURT
SC Docket No. _______
________________________________ )
Plaintiff, ) AFFIDAVIT
) CLAIMING PAYMENT
vs. ) OF SMALL CLAIMS
) JUDGMENT
________________________________ )
Defendant.
State of South Dakota )
) ss
County of _________ )
__________, being first duly sworn on oath deposes and states that he/she is the defendant in the above entitled small claims case which resulted in a judgment against him/her in the sum of $ ____ entered on __________ and that he/she has paid the judgment and any applicable costs or interest awarded against him/her in full but that the plaintiff has failed or refused to satisfy the judgment of record despite request.
Affiant further states he/she made payment on the following date: __________ in the following manner (please explain in detail the circumstances of payment and attach copies of any supporting documents):
__________
Dated this ____ day of __________, ____.
(Sign form and provide your ______________________________
current and complete mailing ______________________________
address and phone number) ______________________________
______________________________
Subscribed and sworn to before me this ____ day of __________, ____.
_______________________________________
Notary Public
My Commission Expires: __________________
ORDER TO SHOW CAUSE
TO: ____________________, The Plaintiff in this action:
Based upon the foregoing affidavit it appears that this judgment may have been paid in full but that you have failed or refused to satisfy it of record in violation of SDCL § 15-39-76.1;
Now therefore, YOU ARE HEREBY ORDERED to satisfy this judgment of record with the clerk of this court or to appear before this court in the court room of the courthouse in the City of __________ at ____ o'clock __________ m. on the ____ day of __________, 20____ to show cause, if any you have, why the said judgment should not be ordered satisfied of record by this court.
BY THE COURT
_____________________________________
ATTEST ____________________ Judge
Clerk of Courts
AFFIDAVIT OF MAILING
Being first duly sworn on oath, I swear or affirm that on the ____ day of __________, 20____, I served a true and correct copy of the "Affidavit Claiming Payment of Small Claims Judgment" and "Order to Show Cause" in the above captioned matter, by United States mail, first class, postage prepaid, upon:
____________________
____________________
____________________
____________________
_________________________________________
Signature
Subscribed and sworn to before me this ____ day of __________, 20____.
_________________________________________
Notary Public
My commission expires: _____________________
Source: Supreme Court Rule 81-4; SL 2005, ch 294 (Supreme Court Rule 05-08), effective Feb. 25, 2005.
15-39-79. Use of small claims procedure to collect unreimbursed medical or health care costs from other parent.
Notwithstanding any other provision of law, a parent, guardian, or custodian is entitled to use the procedures provided in this chapter to collect unreimbursed medical or health care costs incurred on behalf of a child from the other responsible parent.
Source: SL 2005, ch 134, § 14.