21-38-1. Court records and register of deeds records subject to restoration procedure.

Whenever the loss or destruction of any record or any part thereof, of any circuit or magistrate court, or of any record in the office of the register of deeds of an instrument affecting the title to real property in this state shall have happened, or shall hereafter happen, and the original instrument from which said record was made, or a duly certified copy thereof cannot be produced, the record of such instrument may be established and restored as provided in this chapter.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; SDC 1939 & Supp 1960, § 37.1101.

21-38-2. Venue of restoration proceedings.

The venue of proceedings to establish or restore a lost public record shall be:

(1)    Court records: in the court whose record is sought to be established or restored;

(2)    Register of deeds records: in the circuit court for the county in which the office whose record is sought to be restored is situated.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; SDC 1939 & Supp 1960, § 37.1102.

21-38-3. Title of application for restoration.

The application for restoration of a public record under the provisions of this chapter shall be entitled in the court having jurisdiction and in the name of the person making the application and shall designate in its title in general terms the name of the instrument or record sought to be restored.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; Supreme Court Rule 570, 1939; SDC 1939 & Supp 1960, § 37.1103 (1).

21-38-4. Substance and proposed copy of record shown in application for restoration.

The application for restoration of a public record shall show the substance of the instrument or record as the applicant desires to have restored, together with a proposed copy of such instrument or record as the applicant claims it should be.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; Supreme Court Rule 570, 1939; SDC 1939 & Supp 1960, § 37.1103 (4).

21-38-5. Interest of applicant shown in application for restoration.

The application for restoration of a public record shall show the interest of the applicant in having said instrument or record restored, and the reason or necessity therefor, and the injury, if any, that may result to him if said instrument or record is not restored.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; Supreme Court Rule 570, 1939; SDC 1939 & Supp 1960, § 37.1103 (5).

21-38-6. Circumstances of loss or destruction shown in application for restoration.

The application for restoration of a public record shall show the loss or destruction of the instrument or record and the cause and approximate date thereof, and such other relevant facts as the applicant may be able to show.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; Supreme Court Rule 570, 1939; SDC 1939 & Supp 1960, § 37.1103 (2).

21-38-7. Loss or destruction without fault of applicant shown in application for restoration.

The application for restoration of a public record shall show that such loss or destruction happened without willful act, neglect, or connivance of the applicant.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; Supreme Court Rule 570, 1939; SDC 1939 & Supp 1960, § 37.1103 (3).

21-38-8. Signing and verification of application for restoration.

The application for restoration of a public record shall be signed by a licensed attorney of this state or by the applicant. If signed by an attorney, his signature shall be of the same effect as the signature to a complaint in a civil action. If signed by the applicant it must be verified or supported by his affidavit.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; Supreme Court Rule 570, 1939; SDC 1939 & Supp 1960, § 37.1103 (6).

21-38-9. Time and place of hearing on restoration of record--Notice.

Upon the filing of an application for restoration of a public record with the clerk of the court having jurisdiction, the court shall by order fix a time and place for hearing the same and direct such notice thereof as to the court may seem warranted in each particular case. In case publication is required, the court shall designate the newspaper most likely to give notice to persons who may be interested. In case the proceeding was in rem, and no personal service was made, the instrument or record may be restored upon like notice as nearly as may be as in the original proceeding.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; SDC 1939 & Supp 1960, § 37.1104.

21-38-10. Hearing on restoration of record--Proof required.

At the time and place fixed in the notice, the court shall first require proof of the giving of the notice in accordance with its order and a showing of any appearances or protestations or objections, if any, which have been made. The court shall then proceed to hear the proof of the applicant which may be by testimony or affidavit, certificate, or other methods of proof permitted in this title, and the court shall likewise hear any interested persons in opposition to the application.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; Supreme Court Rule 571, 1939; SDC 1939 & Supp 1960, § 37.1105.

21-38-11. Findings and judgment on restoration of record.

If the application is contested the court shall make findings, conclusions, and judgment as in any civil action tried to the court. If there is no contest the court shall by its judgment establish the instrument or record or the parts thereof in accordance with the application and the proof adduced and the instrument or record as so established shall be incorporated in the judgment as a part thereof or as an exhibit thereto, and thereafter the same shall be of the same legal force and effect as the original instrument or record.

Source: SL 1893, ch 142, § 1; RCCivP 1903, § 879; SL 1903, ch 193; RC 1919, §§ 3047, 3048; SDC 1939 & Supp 1960, § 37.1106.