TITLE 21
JUDICIAL REMEDIES
Chapter
01 Actions For Damages Generally
02 Damages For Breach Of Contract
03 Damages For Torts
03A Periodic Payments Of Certain Judgments And Settlements
03B Structured Settlements
04 Actions For Breach Of Promise And Seduction [Repealed]
05 Wrongful Death Actions
06 Recovery Of Gambling Losses
07 Actions For Waste
08 Injunction
09 Actions For Specific Performance
10 Remedies Against Nuisances
10A Remedies For Protection Of Environment [Transferred]
11 Revision Of Contracts
12 Rescission Of Contracts
13 Cancellation Of Instruments
14 Actions For Recovery Of Property
15 Claim And Delivery Of Personal Property
16 Forcible Entry And Detainer
17 Attachment Of Property [Repealed]
17A Attachment Of Property
18 Garnishment Of Debts And Property
19 Claim Of Homestead And Personal Property Exemptions
20 Relief Against Oppressive Levies
21 Receivership
22 Administration Of Trust Estates
23 Judicial Sales
24 Declaratory Judgment
25 Submission Of Stipulated Case [Repealed]
25A Enforcement Of Arbitration Agreements
25B Arbitration Agreements Relating To Medical Services
26 Confession Of Judgment
27 Habeas Corpus
28 Remedies In Nature Of Quo Warranto And Scire Facias
29 Writ Of Mandamus
30 Writ Of Prohibition
31 Certiorari
32 Remedies Against The State
32A Remedies Against Public Entities
33 Appeals From Administrative Agencies [Repealed]
34 Administrative Process Enforced Under Contempt Powers
35 Condemnation Under Power Of Eminent Domain
36 Actions For Escheat Of Property
37 Change Of Name
38 Restoration Of Public Records
39 Determination Of Heirship
40 Boundary Determinations
41 Actions To Quiet Title To Real Property
42 Actions To Quiet Tax Title
43 Actions To Determine Claims To Personalty And To Release Surety
44 Termination Of Life Estates
45 Partition And Sale Of Real Estate
46 Partition And Sale Of Personal Property
47 Actions To Foreclose Real Property Mortgages
48 Foreclosure Of Real Property Mortgage By Advertisement
48A Nonjudicial Voluntary Foreclosure
49 Short-Term Redemption Mortgages
50 Foreclosure Of Real Estate Contracts
51 Discharge Of Recorded Liens And Real Estate Contracts
52 Redemption From Sale On Execution Or Foreclosure
53 Actions To Foreclose Liens On Personal Property
54 Foreclosure Of Personal Property Liens And Pledges By Advertisement
55 Actions For Wrongful Life Prohibited
56 General Provisions
57 Recovery Of Damages For Instruments Not Paid Upon Presentment
58 Limited Liability For Manufacture, Distribution Or Sale Of Firearms
59 Limited Liability For Year 2000 Litigation [Repealed]
60 Action For Destruction Of Field Crops, Animals And Organisms
61 Commonsense Consumption
62 Prisoners' Actions
63 Aviation Product Liability
64 Unauthorized Commercial Use Of Personality's Right Of Publicity
65 Protection Of Vulnerable Adults
66 Asbestos Trust Claims
67 Uniform Civil Remedies For Unauthorized Disclosure Of Intimate Images Act
68 Limitation Of Liability For Exposure To Covid-19
21-1-1
Right to damages for detriment from unlawful act or omission of another.
21-1-2
Nominal damages for breach of duty without detriment.
21-1-3
Damages to be reasonable.
21-1-4
Exemplary or penal damages only as provided--Interest on damages.
21-1-4.1
Discovery and trial of exemplary damage claims.
21-1-5
Damages for breach of obligation not to exceed gain from full performance--Exceptions.
21-1-6
Market value considered in estimating damage to property.
21-1-7
Market value considered in estimating damages for deprivation of possession of
property.
21-1-8
Peculiar value of property to plaintiff considered in damages against defendant with
notice or willful wrongdoer.
21-1-9
Value of instrument presumed equal to value of property represented.
21-1-10
Damages awarded for detriment after commencement of action.
21-1-11
Repealed.
21-1-12
Acceptance of principal as waiver of interest.
21-1-13
Repealed.
21-1-13.1
Interest on damages--Prejudgment interest--Retroactive application.
21-1-13.2
Application of interest statutes.
21-1-14
Liability of issuer of bad check for collection costs--Costs included in restitution
award.
21-1-15
Definitions.
21-1-16
Residential construction defects--Notice and opportunity to remedy--Time for
inspection and offer to repair or compensate.
21-1-1. Right to damages for detriment from unlawful act or omission of another.
Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages. Detriment is a loss or harm suffered in person or property.
Source: CivC 1877, §§ 1940, 1941; CL 1887, §§ 4574, 4575; RCivC 1903, §§ 2286, 2287; RC 1919, §§ 1959, 1960; SDC 1939 & Supp 1960, § 37.1701.
21-1-2. Nominal damages for breach of duty without detriment.
When a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages.
Source: CivC 1877, § 1986; CL 1887, § 4619; RCivC 1903, § 2331; RC 1919, § 2003; SDC 1939 & Supp 1960, § 37.1703.
21-1-3. Damages to be reasonable.
Damages must in all cases be reasonable, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered.
Source: CivC 1877, § 1985; CL 1887, § 4618; RCivC 1903, § 2330; RC 1919, § 2002; SDC 1939 & Supp 1960, § 37.1704.
21-1-4. Exemplary or penal damages only as provided--Interest on damages.
The general remedy by damages does not include exemplary or penal damages nor interest on any damages unless expressly provided by statute.
Source: CivC 1877, § 1983; CL 1887, § 4616; RCivC 1903, § 2328; RC 1919, § 2000; SDC 1939 & Supp 1960, § 37.1705.
21-1-4.1. Discovery and trial of exemplary damage claims.
In any claim alleging punitive or exemplary damages, before any discovery relating thereto may be commenced and before any such claim may be submitted to the finder of fact, the court shall find, after a hearing and based upon clear and convincing evidence, that there is a reasonable basis to believe that there has been willful, wanton or malicious conduct on the part of the party claimed against.
Source: SL 1986, ch 161.
21-1-5. Damages for breach of obligation not to exceed gain from full performance--Exceptions.
Notwithstanding the provisions of these statutes, no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides, except in the cases specified in statutes providing exemplary damages or penal damages, and in statutes relating to damages for breach of promise to marry, for seduction, or wrongful injuries to animals.
Source: CivC 1877, § 1984; CL 1887, § 4617; RCivC 1903, § 2329; RC 1919, § 2001; SDC 1939 & Supp 1960, § 37.1706.
21-1-6. Market value considered in estimating damage to property.
In estimating the damage to property, except in the cases prescribed in §§ 21-1-8 and 21-1-9, the value of such property to the owner is deemed to be its market value at the time and in the market nearest to the place where it was located at the time of the damage.
Source: CivC 1877, § 1979; CL 1887, § 4612; RCivC 1903, § 2324; RC 1919, § 1996; SDC 1939 & Supp 1960, § 37.1707.
21-1-7. Market value considered in estimating damages for deprivation of possession of property.
In estimating damages except as provided by §§ 21-1-8 and 21-1-9 the value of property to an owner thereof deprived of its possession is deemed to be the price at which he might have bought an equivalent thing, in the market nearest to the place where the property ought to have been put into his possession and at such time after the breach of duty upon which his right to damages is founded as would suffice, with reasonable diligence, for him to make such a purchase.
Source: CivC 1877, § 1980; CL 1887, § 4613; RCivC 1903, § 2325; RC 1919, § 1997; SDC 1939 & Supp 1960, § 37.1708.
21-1-8. Peculiar value of property to plaintiff considered in damages against defendant with notice or willful wrongdoer.
Where certain property has a peculiar value to a person recovering damages for a deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer.
Source: CivC 1877, § 1981; CL 1887, § 4614; RCivC 1903, § 2326; RC 1919, § 1998; SDC 1939 & Supp 1960, § 37.1709.
21-1-9. Value of instrument presumed equal to value of property represented.
For the purpose of estimating damages the value of an instrument in writing is presumed to be equal to that of the property to which it entitles its owner.
Source: CivC 1877, § 1982; CL 1887, § 4615; RCivC 1903, § 2327; RC 1919, § 1999; SDC 1939 & Supp 1960, § 37.1710.
21-1-10. Damages awarded for detriment after commencement of action.
Damages may be awarded in a judicial proceeding for detriment resulting after the commencement thereof, or certain to result in the future.
Source: CivC 1877, § 1942; CL 1887, § 4576; RCivC 1903, § 2288; RC 1919, § 1961; SDC 1939 & Supp 1960, § 37.1702.
21-1-12. Acceptance of principal as waiver of interest.
Accepting payment of the whole principal, as such, waives all claim to interest.
Source: CivC 1877, § 1945; CL 1887, § 4579; RCivC 1903, § 2291; RC 1919, § 1964; SDC 1939 & Supp 1960, § 37.1713.
21-1-13.1. Interest on damages--Prejudgment interest--Retroactive application.
Any person who is entitled to recover damages, whether in the principal action or by counterclaim, cross claim, or third-party claim, is entitled to recover interest thereon from the day that the loss or damage occurred, except during such time as the debtor is prevented by law, or by act of the creditor, from paying the debt. Prejudgment interest is not recoverable on future damages, punitive damages, or intangible damages such as pain and suffering, emotional distress, loss of consortium, injury to credit, reputation or financial standing, loss of enjoyment of life, or loss of society and companionship. If there is a question of fact as to when the loss or damage occurred, prejudgment interest shall commence on the date specified in the verdict or decision and shall run to, and include, the date of the verdict or, if there is no verdict, the date the judgment is entered. If necessary, special interrogatories shall be submitted to the jury. Prejudgment interest on damages arising from a contract shall be at the contract rate, if so provided in the contract; otherwise, if prejudgment interest is awarded, it shall be at the Category B rate of interest specified in § 54-3-16. Prejudgment interest on damages arising from inverse condemnation actions shall be at the Category A rate of interest as specified by § 54-3-16 on the day judgment is entered. This section shall apply retroactively to the day the loss or damage occurred in any pending action for inverse condemnation. The court shall compute and award the interest provided in this section and shall include such interest in the judgment in the same manner as it taxes costs.
Source: SL 1990, ch 156, § 1; SL 2003, ch 242, § 2.
21-1-13.2. Application of interest statutes.
The provisions of § 21-1-13.1 apply to any suit commenced on or after July 1, 1990. The provisions of §§ 21-1-11 and 21-1-13 apply to any suit commenced before July 1, 1990.
Source: SL 1990, ch 156, § 2.
21-1-14. Liability of issuer of bad check for collection costs--Costs included in restitution award.
Any person who violates § 22-30A-24 or 22-30A-25 is liable, pursuant to § 57A-3-420, for damages for the reasonable costs and expenses of collecting the dishonored check. Such reasonable costs and expenses including any necessary service or handling charge paid by any merchant, shall be included in any award of restitution made by the court in any action for a violation of § 22-30A-24 or 22-30A-25.
Source: SL 1983, ch 368, § 3; SL 1986, ch 171, § 1; SL 2005, ch 120, § 139.
21-1-15. Definitions.
Terms used in this section and § 21-1-16 mean:
(1) "Action," any civil lawsuit or action in contract or tort for damage or indemnity brought against a construction professional to assert a claim for damage or the loss of use of real or personal property caused by a construction defect. The term does not include a counterclaim, cross-claim, or civil action in tort alleging personal injury or wrongful death resulting from a construction defect;
(2) "Construction defect," a deficiency in or arising out of the supervision, construction, or remodeling of a residence that results from any of the following:
(a) Defective materials, products, or components used in the construction or remodeling of a residence;
(b) Violation of the applicable building, plumbing, or electrical codes in effect at the time of the construction or remodeling of a residence; or
(c) Failure to construct or remodel a residence in accordance with contract specifications or accepted trade standards;
(3) "Construction professional," a builder, contractor, or subcontractor performing or furnishing the supervision of the construction or remodeling of any residence, whether operating as a sole proprietor, partnership, corporation, or other business entity;
(4) "Home owner," any person, company, firm, partnership, corporation, or association who contracts with a construction professional for the remodeling, construction, or construction and sale of a residence. The term includes a subsequent purchaser of a residence from any home owner;
(5) "Residence," a single-family house or a unit in a multi-unit residential structure in which title to each individual unit is transferred to the owner under a condominium or cooperative system;
(6) "Serve" or "service," personal delivery or delivery by certified mail to the last known address of the addressee.
Source: SL 2007, ch 137, § 1.
21-1-16. Residential construction defects--Notice and opportunity to remedy--Time for inspection and offer to repair or compensate.
Prior to commencing an action against the construction professional for a construction defect, a home owner shall:
(1) Serve on the construction professional a written notice describing the alleged construction defect; and
(2) Allow the construction professional, within thirty days after service of the notice, to inspect the alleged construction defect and serve on the home owner a written offer to repair the construction defect or compensate the owner by monetary payment.
The home owner may not commence an action against the construction professional for a construction defect until thirty days after the notice is served on the construction professional or until the construction professional refuses to remedy the alleged construction defect, whichever occurs first. Upon service of the notice, the statute of limitations set forth in chapter 15-2A is suspended for the thirty-day period or until the refusal, whichever occurs first. If the home owner commences an action against the construction professional without complying with the requirements of this section, the action shall be stayed until the home owner has complied with such requirements. No home owner is required to serve another written notice for any additional defects discovered after the home owner has served an initial written notice of a construction defect pursuant to this section. The provisions of this section do not apply to the initiation of a counterclaim or cross-claim in any action that is already properly commenced.
Source: SL 2007, ch 137, § 2.
21-2-1
General measure of damages for breach of contract--Uncertain damages not
recovered.
21-2-2
Damages for breach of obligation to pay money.
21-2-3
Damages for breach of agreement to convey real property.
21-2-4
Damages for breach of agreement to purchase real property.
21-2-5
Damages for breach of covenant in grant of real property.
21-2-6
Damages for breach of covenant against encumbrances.
21-2-7
Damages for breach of warranty of agent's authority.
21-2-8
Damages for carrier's failure to accept freight, messages or passengers.
21-2-9
Damages for carrier's failure to deliver freight.
21-2-10
Damages for carrier's delay in delivery of freight.
21-2-1. General measure of damages for breach of contract--Uncertain damages not recovered.
For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and their origin.
Source: CivC 1877, §§ 1947, 1948; CL 1887, § 4581; RCivC 1903, § 2293; RC 1919, § 1966; SDC 1939 & Supp 1960, § 37.1801.
21-2-2. Damages for breach of obligation to pay money.
The detriment caused by the breach of an obligation to pay money only is deemed to be the amount due by the terms of the obligation with interest thereon.
Source: CivC 1877, § 1949; CL 1887, § 4582; RCivC 1903, § 2294; RC 1919, § 1967; SDC 1939 & Supp 1960, § 37.1802.
21-2-3. Damages for breach of agreement to convey real property.
The detriment caused by the breach of an agreement to convey an estate in real property is deemed to be the price paid, and the expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon; but adding thereto, in case of bad faith, the difference between the price agreed to be paid, and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses properly incurred in preparing to enter upon the land.
Source: CivC 1877, § 1953; CL 1887, § 4586; RCivC 1903, § 2298; RC 1919, § 1970; SDC 1939 & Supp 1960, § 37.1805.
21-2-4. Damages for breach of agreement to purchase real property.
The detriment caused by the breach of an agreement to purchase an estate in real property, is deemed to be the excess, if any, of the amount which would have been due to the seller under the contract, over the value of the property to him.
Source: CivC 1877, § 1954; CL 1887, § 4587; RCivC 1903, § 2299; RC 1919, § 1971; SDC 1939 & Supp 1960, § 37.1806.
21-2-5. Damages for breach of covenant in grant of real property.
The detriment caused by the breach of a covenant of seizin, of right to convey, or warranty, or of quiet enjoyment, in a grant of an estate in real property, is deemed to be:
(1) The price paid to the grantor, or if the breach is partial only, such proportion of the price as the value of the property affected by the breach bore, at the time of the grant, to the value of the whole property;
(2) Interest thereon for the time during which the grantee derived no benefit from the property, not exceeding six years;
(3) Any expenses properly incurred by the covenantee in defending his possession.
Source: CivC 1877, § 1951; CL 1887, § 4584; RCivC 1903, § 2296; RC 1919, § 1968; SDC 1939 & Supp 1960, § 37.1803.
21-2-6. Damages for breach of covenant against encumbrances.
The detriment caused by the breach of a covenant against encumbrances, in a grant of an estate in real property, is deemed to be the amount which has been actually expended by the covenantee in extinguishing either the principal or interest thereof; not exceeding in the former case a proportion of the price paid to the grantor, equivalent to the relative value, at the time of the grant, of the property affected by the breach, as compared with the whole; or, in the latter case interest on a like amount.
Source: CivC 1877, § 1952; CL 1887, § 4585; RCivC 1903, § 2297; RC 1919, § 1969; SDC 1939 & Supp 1960, § 37.1804.
21-2-7. Damages for breach of warranty of agent's authority.
The detriment caused by the breach of a warranty of an agent's authority is deemed to be the amount which could have been recovered and collected from his principal if the warranty had been complied with, and the reasonable expenses of legal proceedings taken, in good faith, to enforce the act of the agent against his principal.
Source: CivC 1877, § 1965; CL 1887, § 4598; RCivC 1903, § 2310; RC 1919, § 1982; SDC 1939 & Supp 1960, § 37.1809.
21-2-8. Damages for carrier's failure to accept freight, messages or passengers.
The detriment caused by breach of a carrier's obligation by failure to accept freight, messages, or passengers, is deemed to be the difference between the amount he had a right to charge for the carriage and the amount it would be necessary to pay for the same service when it ought to be performed.
Source: CivC 1877, § 1962; CL 1887, § 4595; RCivC 1903, § 2307; RC 1919, § 1979; SDC 1939 & Supp 1960, § 37.1808 (1).
21-2-9. Damages for carrier's failure to deliver freight.
The detriment caused by breach of a carrier's obligation by failure to deliver freight, where he has not converted it to his own use, is deemed to be the value thereof at the place and on the day at which it should have been delivered, deducting the freightage to which he would have been entitled if he had completed the delivery.
Source: CivC 1877, § 1963; CL 1887, § 4596; RCivC 1903, § 2308; RC 1919, § 1980; SDC 1939 & Supp 1960, § 37.1808 (2).
21-2-10. Damages for carrier's delay in delivery of freight.
The detriment caused by breach of a carrier's obligation by delay in delivery of freight, is deemed to be the depreciation in the intrinsic value of the freight during the delay, and also the depreciation, if any, in the market value thereof, otherwise than by reason of depreciation in its intrinsic value, at the place where it ought to have been delivered and between the day at which it ought to have been delivered and the day of its actual delivery.
Source: CivC 1877, § 1964; CL 1887, § 4597; RCivC 1903, § 2309; RC 1919, § 1981; SDC 1939 & Supp 1960, § 37.1808 (3).
CHAPTER 21-3
DAMAGES FOR TORTS
21-3-1 General measure of damages for breach of noncontractual obligation--Foreseeability not required.
21-3-2 Punitive damages in discretion of jury.
21-3-3 Presumed damages for wrongful conversion of personal property--Presumptions conclusive when possession wrongful from beginning.
21-3-4 Lien holder's damages for conversion of personal property.
21-3-5 General measure of damages for wrongful occupation of real property.
21-3-6 Treble damages for forcible exclusion from real property.
21-3-7 Double damages for failure of tenant to give up premises after notice of intention.
21-3-8 Double damages for holding over by tenant after expiration of term and notice to quit.
21-3-9 Measure of damages for holding over real property by conservator, trustee, or life tenant.
21-3-10 Damages for wrongful injury to trees and plants.
21-3-11 Limitation on damages for medical malpractice.
21-3-11.1 Legislative findings--Revival of § 21-3-11.
21-3-12 Evidence of special damages insurance from certain collateral sources admissible in personal injury actions for health care malpractice.
21-3-13 Limitation of damages recoverable for injury or death of rodeo contestant.
21-3-14 Local law where personal injury occurs determines survival of claim.
21-3-15 Limitation of damages recoverable for injury or death resulting from negligence of child welfare agency.
21-3-1. General measure of damages for breach of noncontractual obligation--Foreseeability not required.
For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.
Source: CivC 1877, § 1967; CL 1887, § 4600; RCivC 1903, § 2312; RC 1919, § 1984; SDC 1939 & Supp 1960, § 37.1901.
21-3-2. Punitive damages in discretion of jury.
In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, or in any case of wrongful injury to animals, being subjects of property, committed intentionally or by willful and wanton misconduct, in disregard of humanity, the jury, in addition to the actual damage, may give damages for the sake of example, and by way of punishing the defendant.
Source: CivC 1877, §§ 1946, 1974; CL 1887, §§ 4580, 4607; RCivC 1903, §§ 2292, 2319; RC 1919, §§ 1965, 1991; SDC 1939 & Supp 1960, § 37.1902.
21-3-3. Presumed damages for wrongful conversion of personal property--Presumptions conclusive when possession wrongful from beginning.
The detriment caused by the wrongful conversion of personal property is presumed to be:
(1) The value of the property at the time of the conversion, with the interest from that time;
(2) Where the action has been prosecuted with reasonable diligence, the highest market value of the property at any time between the conversion and the verdict, without interest, at the option of the injured party;
(3) A fair compensation for the time and money properly expended in pursuit of the property.
Such presumptions cannot be repelled in favor of one whose possession was wrongful from the beginning by his subsequent application of the property to the benefit of the owner, without his consent.
Source: CivC 1877, §§ 1970, 1971; SL 1885, ch 42, § 1; CL 1887, §§ 4603, 4604; RCivC 1903, §§ 2315, 2316; RC 1919, §§ 1987, 1988; SDC 1939 & Supp 1960, § 37.1910.
21-3-4. Lien holder's damages for conversion of personal property.
One having a mere lien on personal property cannot recover greater damages for its conversion, from one having a right thereto superior to his, after his lien is discharged, than the amount secured by the lien, and the compensation allowed by § 21-3-3, for the loss of time and expenses.
Source: CivC 1877, § 1972; CL 1887, § 4605; RCivC 1903, § 2317; RC 1919, § 1989; SDC 1939 & Supp 1960, § 37.1912.
21-3-5. General measure of damages for wrongful occupation of real property.
The detriment caused by the wrongful occupation of real property, in cases not embraced in §§ 21-3-6 to 21-3-9, inclusive, is deemed to be the value of the use of the property for the time of such occupation, not exceeding six years next preceding the commencement of the action or proceeding to enforce the rights to damages, and the costs, if any, of recovering the possession.
Source: CivC 1877, § 1968; CL 1887, § 4601; RCivC 1903, § 2313; RC 1919, § 1985; SDC 1939 & Supp 1960, § 37.1903.
21-3-6. Treble damages for forcible exclusion from real property.
For forcibly ejecting or excluding a person from the possession of real property, the measure of damages is three times such a sum as would compensate for the detriment caused to him by the act complained of.
Source: CivC 1877, § 1977; CL 1887, § 4610; RCivC 1903, § 2322; RC 1919, § 1994; SDC 1939 & Supp 1960, § 37.1907.
21-3-7. Double damages for failure of tenant to give up premises after notice of intention.
For the failure of a tenant to give up the premises held by him, when he has given notice of his intention to do so, the measure of damages is double the rent which he ought otherwise to pay.
Source: CivC 1877, § 1975; CL 1887, § 4608; RCivC 1903, § 2320; RC 1919, § 1992; SDC 1939 & Supp 1960, § 37.1905.
21-3-8. Double damages for holding over by tenant after expiration of term and notice to quit.
For willfully holding over real property, by a tenant after the end of his term, and after notice to quit has been duly given, and demand of possession made, the measure of damages is double the yearly value of the property, for the time of withholding, in addition to compensation for the detriment occasioned thereby.
Source: CivC 1877, § 1976; CL 1887, § 4609; RCivC 1903, § 2321; RC 1919, § 1993; SDC 1939 & Supp 1960, § 37.1906.
21-3-9. Measure of damages for holding over real property by conservator, trustee, or life tenant.
For willfully holding over real property by a person who entered upon the same as conservator or trustee for a minor, or by right of an estate terminable with any life or lives, after the termination of the trust or particular estate, without the consent of the party immediately entitled after such termination, the measure of damages is the value of the profits received during such holding over.
Source: CivC 1877, § 1969; CL 1887, § 4602; RCivC 1903, § 2314; RC 1919, § 1986; SDC 1939 & Supp 1960, § 37.1904; SL 1993, ch 213, § 96.
21-3-10. Damages for wrongful injury to trees and plants.
The Guide for Plant Appraisal, Tenth Edition Revised, as published by the International Society of Arboriculture, shall be used as a guide to measure the actual damages for the wrongful injury to trees or plants.
Source: CivC 1877, § 1978; CL 1887, § 4611; RCivC 1903, § 2323; RC 1919, § 1995; SDC 1939 & Supp 1960, § 37.1908; SL 2007, ch 138, § 1; SL 2024, ch 74, § 1.
21-3-11. Limitation on damages for medical malpractice.
In any action for damages for personal injury or death alleging malpractice against any physician licensed pursuant to chapter 36-4, chiropractor, optometrist, podiatrist, dentist, dental hygienist, dental assistant, hospital, critical access hospital, registered nurse, licensed practical nurse, certified registered nurse anesthetist, clinical nurse specialist, certified nurse practitioner, certified nurse midwife, or physician's assistant, or against the practitioner's corporate, limited liability partnership, or limited liability company employer based upon the acts or omissions of the practitioner, under the laws of this state, whether taken through the court system or by binding arbitration, the total general damages which may be awarded may not exceed the sum of five hundred thousand dollars. There is no limitation on the amount of special damages which may be awarded. This section applies only to causes of action arising from injuries or death occurring after July 1, 1976. However, in the case of chiropractors, it applies only to the causes of action arising from injuries or death occurring after July 1, 1978. In the case of optometrists, it applies only to causes of action arising from injuries or death occurring after July 1, 2002. In the case of podiatrists, it applies only to causes of action arising from injuries or death occurring after July 1, 2005.
Source: SL 1976, ch 154, §§ 1, 2; SL 1978, ch 154; SL 1985, ch 167; SL 1986, ch 172; SL 1997, ch 123, § 2; SL 2002, ch 99, § 1; SL 2005, ch 119, § 1; SL 2017, ch 171, § 50.
21-3-11.1. Legislative findings--Revival of § 21-3-11.
As a result of the decision of the South Dakota Supreme Court in Knowles vs. United States, 1996 SD 10, 544 NW2d 183 (1996), the Legislature accepts the court's analysis and finds that Chapter 167 of the Session Laws of 1985 is now and has been part of the South Dakota Codified Laws since its effective date, codified as § 21-3-11. The Legislature finds that amendment of the revived statute is necessary to recognize the evolution of levels of licensure from the time of initial passage of the statute to the present for the practitioners and entities addressed by the original version of the statute.
Source: SL 1997, ch 123, § 1.
21-3-12. Evidence of special damages insurance from certain collateral sources admissible in personal injury actions for health care malpractice.
In any action for damages for personal injury or death alleging health care malpractice on the part of any physician, chiropractor, dentist, hospital, registered nurse, licensed practical nurse, or other practitioner of the healing arts, whether founded upon tort or contract, if it is alleged that the claimant suffered special damages by reason of such injury or death, evidence shall be admissible which is relevant to prove that any such special damages were paid for or are payable by, in whole or in part, insurance which is not subject to subrogation and which was not purchased privately, in whole or in part, by the claimant, claimant's decedent, or a member of the immediate family of claimant or claimant's decedent, or were paid for, or are payable by, in whole or in part, state or federal governmental programs not subject to subrogation.
Source: SL 1977, ch 182.
21-3-13. Limitation of damages recoverable for injury or death of rodeo contestant.
No person who voluntarily participates as a contestant in any rodeo, his representative or his estate may recover damages in excess of one hundred thousand dollars for wrongful death or personal injury arising out of such participation.
Source: SL 1985, ch 168, § 1.
21-3-14. Local law where personal injury occurs determines survival of claim.
In any action arising out of an injury to the person, the local law of the state where the injury occurs determines whether a claim for damages survives the death of the party sought to be held liable or of the injured person. For purposes of this section, the place where the injury occurs is the place where the forces causing the injury first result in actionable injury to the injured person.
Source: SL 2011, ch 112, § 1.
21-3-15. Limitation of damages recoverable for injury or death resulting from negligence of child welfare agency.
In a tort action against an entity licensed as a child welfare agency under subdivision 26-6-14(4), or against any officer, director, or employee of the entity, to recover damages for injury or loss to a person or property arising out of any act or omission within the scope of the entity's license, an award of damages may not exceed one million dollars, exclusive of interest from the date of judgment. If the limit on total damages under this section is determined to be unconstitutional, the limit only applies to noneconomic damages.
Source: SL 2022, ch 58, § 1.
21-3A-1
Definition of terms.
21-3A-1.1
Purposes of chapter.
21-3A-1.2
Applicability of chapter.
21-3A-2
Action for bodily injury--Effective election--Objection to election--Time
requirements--Action not tried under chapter--Withdrawal of election.
21-3A-3
Calculation of damages by trier of fact.
21-3A-4
Evidence and calculation of future damages--Jury instructions concerning future
damages.
21-3A-5
Judgment entered on verdict requiring special damages.
21-3A-6
Judgment for periodic installments--Adjustment--Index factor--Schedule of
payments.
21-3A-7
Security authorized for payment of judgment for periodic installments.
21-3A-8
Posting of security by judgment debtor or insurer--Failure to comply--Right to
lump-sum payment--Wrongful death action--Right of reimbursement.
21-3A-9
Discount factor.
21-3A-10
Survivorship of liability for installment payments--Wrongful death action--Qualifying survivor defined.
21-3A-11
Satisfaction of judgment and discharge of debtor.
21-3A-12
Rules established by director of Division of Insurance.
21-3A-13
Provisions of chapter severable.
21-3A-1. Definition of terms.
Terms used in this chapter, mean:
(1) "Bodily injury," any bodily harm, sickness, disease, or death;
(2) "Economic loss," any pecuniary harm for which damages are recoverable;
(3) "Future damages," any damages arising from bodily injury which the trier of fact finds will accrue after the damages findings are made;
(4) "Noneconomic loss," any nonpecuniary harm for which damages are recoverable, but the term does not include punitive or exemplary damages;
(5) "Past damages," any damages that have accrued when the damages findings are made, including any punitive or exemplary damages allowed by law; and
(6) "Qualified insurer," any insurer, self-insurer, plan, or arrangement approved pursuant to § 21-3A-12.
Source: SL 1986, ch 163, § 1.
21-3A-1.1. Purposes of chapter.
The purposes of this chapter are to fully and fairly compensate injured parties as well as to:
(1) Alleviate some of the practical problems incident to unpredictability of large future losses;
(2) Effectuate more precise awards of damages for actual losses;
(3) Pay damages as the trier of fact finds the losses will accrue; and
(4) Assure that payments of damages more nearly serve the purposes for which they are awarded.
Source: SL 1986, ch 163, § 15, as added by SL 1988, ch 181, § 1.
21-3A-1.2. Applicability of chapter.
The provisions of this chapter apply only to any 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, and to the professional corporation or corporations of any such practitioner of the healing arts.
Source: SL 1986, ch 163, § 16, as added by SL 1988, ch 181, § 6.
21-3A-2. Action for bodily injury--Effective election--Objection to election--Time requirements--Action not tried under chapter--Withdrawal of election.
In order to invoke this chapter, a party to an action for bodily injury shall make an effective election in accordance with this section within one hundred twenty days after service of the complaint.
The election shall be made in accordance with rules of court. Any objection to the election shall be made in accordance with rules of court within thirty days after the election has been made.
An election is effective if:
(1) All parties have consented;
(2) No timely objection is filed by any party; or
(3) A timely objection is filed; but
(a) The electing party is a claimant and shows there is a good faith claim that future damages will exceed two hundred thousand dollars; or
(b) The electing party is a party responding to a claim for future damages in excess of two hundred thousand dollars and shows that security in the amount of the claim for past and future damages or five hundred thousand dollars, whichever is less, can be provided under this chapter.
If an objecting party shows that the purposes of this chapter would not be served by conducting the trial of the claim affecting him under this chapter, the court may determine not to try the claim under this chapter even though the conditions of subsection (a) or (b) of subdivision (3) of this section are satisfied. Such determination shall be made in accordance with rules of court.
If an effective election is on file at the commencement of trial, all actions, including third-party claims, counterclaims and actions consolidated for trial, shall be tried under this chapter unless the court finds that the purposes of this chapter would not be served by doing so or in the interest of justice a separate trial or proceeding should be held on some or all of the claims that are not the subject of the election.
An effective election can be withdrawn only by consent of all parties to the claim to which the election relates.
Source: SL 1986, ch 163, § 2; SL 1988, ch 181, § 2.
21-3A-3. Calculation of damages by trier of fact.
If liability is found in a trial under this chapter, the trier of fact, in addition to other appropriate findings, shall make separate findings for each claimant specifying the amount of:
(1) Any past damages; and
(2) Any future damages and the periods over which they will accrue, on an annual basis, for each of the following types:
(a) Medical and other costs of health care;
(b) Other economic loss; and
(c) Noneconomic loss.
The calculation of future damages for types (a) and (c) described in subdivision (2) of this section shall be based on the costs and losses during the period of time the claimant will sustain those costs and losses and the calculation for type (b) shall be based on the losses during the period of time the claimant would have lived but for the injury upon which the claim is based.
Source: SL 1986, ch 163, § 3.
21-3A-4. Evidence and calculation of future damages--Jury instructions concerning future damages.
In all trials under this chapter, evidence of future damages shall be expressed in current values and those damages shall be calculated by the trier of fact without regard to future changes in the earning power or purchasing power of the dollar.
In all jury trials in which special damages findings are required under this chapter, the jury shall be informed that with respect to future damages:
(1) The law provides for adjustments to be made later to take account of future changes in the purchasing power of the dollar;
(2) The law takes into account the fact that those payments may be made in the future rather than in one lump sum now; and
(3) The jury will make their findings on the assumption that appropriate adjustments for future changes in the purchasing power of the dollar will be made later.
Source: SL 1986, ch 163, § 4.
21-3A-5. Judgment entered on verdict requiring special damages.
In order to determine what judgment is to be entered on a verdict requiring findings of special damages under this chapter, the court shall proceed as follows:
(1) The court shall apply to the findings of past and future damages whether determined by the court or jury, any applicable rules of law, including setoffs, credits, comparative fault, additurs and remittiturs, in calculating the respective amounts of past and future damages each claimant is entitled to recover and each party is obligated to pay.
(2) If the total amount of future damages recoverable by a claimant in an action for bodily injury or by all of the beneficiaries in an action for wrongful death is less than two hundred thousand dollars, the court, unless the claimant or beneficiaries elect to receive a judgment of periodic installments, shall reduce the amounts payable for future damages in accordance with § 21-3A-9, to determine the equivalent lump-sum value and enter judgment for that amount plus the amounts found for past damages.
(3) If the total amount of future damages recoverable by a claimant in an action for bodily injury or by all of the beneficiaries in an action for wrongful death is two hundred thousand dollars, or more, or the claimant or beneficiaries so elect, the court shall enter judgment as follows:
(a) If a judgment for periodic installments is entered, it shall specify payment of attorney's fees and litigation expenses in a manner separate from the periodic installments payable to the claimant, either in lump sum or by periodic installments, pursuant to any agreement entered into between the claimant or beneficiary and his attorney. If any portion of future damages is payable in advance of the period to which it applies in satisfaction of the agreement, the amount of the damages is subject to discount in accordance with § 21-3A-9.
(b) Upon election of a subrogee, including an employer or insurer who provides workers' compensation, filed within the time permitted by rule of court, any part of future damages allocable to reimbursement of payments previously made by the subrogee is payable in lump sum to the subrogee and the appropriate reduction of future damages shall be calculated in accordance with § 21-3A-9.
(c) The court shall enter judgment in lump sum for past damages and for any damages payable in lump sum or otherwise under subsections (3)(a) and (3)(b). Any lump-sum payments for future damages reduce proportionately all periodic installments for future damages.
(d) After making any adjustments prescribed by the preceding subsections, the court shall reduce the remaining amounts for future damages to present value in accordance with § 21-3A-9 to determine the equivalent lump-sum value. If the equivalent lump-sum value is more than one hundred thousand dollars or the claimant or beneficiaries elect to receive a judgment for periodic installments, the court shall enter a judgment for the payment of the remaining amounts of future damages, without reduction in periodic installments in accordance with § 21-3A-1.2, otherwise, the court shall enter a judgment for the equivalent lump-sum value.
(e) In an action for wrongful death, the calculation of the equivalent lump-sum value under subsection (3)(d) of the remaining amounts for future damages shall be based on the total recovery for all beneficiaries of the action. If the lump-sum equivalent of the total is more than fifty thousand dollars, each beneficiary shall be paid in periodic installments in accordance with § 21-3A-1.2.
(4) Upon petition of a party before entry of judgment and a finding of incapacity to post the required security, the court, at the election of the claimant or beneficiaries in an action for wrongful death, shall:
(a) Enter a judgment in accordance with subdivision (3); or
(b) Reduce the amounts payable for future damages in accordance with § 21-3A-9, unless subdivision 21-3A-8(1) applies, to determine the equivalent lump-sum value and enter judgment for that amount plus the amounts found for past damages.
Source: SL 1986, ch 163, § 5; SL 1988, ch 181, § 3.
21-3A-6. Judgment for periodic installments--Adjustment--Index factor--Schedule of payments.
A judgment for periodic installments shall set out:
(1) The findings of the future damages for each calendar year; and
(2) A schedule of the base figure for each calendar year to be used in calculating future payments. The base figure is determined by discounting the findings for each calendar year in accordance with § 21-3A-9.
As of the first day of each calendar year after a judgment for periodic installments is entered, the schedule of all installments not previously due shall be adjusted by adding to the base figure for each installment, in the most recently modified schedule, a sum determined by multiplying the base figure by the index factor defined in this section.
If a judgment for periodic installments has been in effect for:
(1) One year or more at the time of adjustment, the index factor is the annual percentage change in the consumer price index for urban wage earners and clerical workers as computed by the Bureau of Labor Statistics of the United States Department of Labor for the year before the year immediately preceding the year of adjustment;
(2) Less than one year but more than six months at the time of adjustment, the index factor is one-half of the index factor defined in this section; and
(3) Less than six months but more than three months at the time of adjustment, the index factor is one-fourth of the index factor defined in this section.
In all other cases, no adjustment may be made.
Unless the court directs otherwise or the parties otherwise agree, payments shall be scheduled at one-month intervals. Payments for damages accruing during the scheduled intervals are due at the beginning of the intervals.
Source: SL 1986, ch 163, § 6; SL 1988, ch 181, § 4.
21-3A-7. Security authorized for payment of judgment for periodic installments.
Security authorized or required for payment of a judgment for periodic installments entered in accordance with this chapter shall be in one or more of the following forms and approved by the court:
(1) Bond executed by a qualified insurer;
(2) Annuity contract executed by a qualified insurer;
(3) Evidence of applicable and collectible liability insurance with one or more qualified insurers;
(4) An agreement by one or more qualified insurers to guarantee payment of the judgment; or
(5) Any other satisfactory form of security.
Security complying with this section serves also as a required supersedeas bond.
Source: SL 1986, ch 163, § 7.
21-3A-8. Posting of security by judgment debtor or insurer--Failure to comply--Right to lump-sum payment--Wrongful death action--Right of reimbursement.
If the court enters a judgment for periodic installments, each party liable for all or a portion of the judgment, unless found to be incapable of doing so under subdivision 21-3A-5(4), shall separately or jointly with one or more others post security in an amount equal to the present lump-sum equivalent of the unpaid judgment, including past damages, in a form prescribed in § 21-3A-7, within thirty days after the date the judgment is subject to execution. A liability insurer having a contractual obligation and any other person adjudged to have an obligation to pay all or part of a judgment for periodic installments on behalf of a judgment debtor is obligated to post security to the extent of its contractual or adjudged obligation if the judgment debtor has not done so.
A judgment creditor or successor in interest and any party having rights under this section may move that the court find that security has not been posted and maintained with regard to a judgment obligation owing to the moving party. Upon so finding, the court shall calculate the lump-sum equivalent of the obligation under § 21-3A-9 and enter a judgment for that amount in favor of the moving party.
Upon motion by the claimant, or the beneficiaries in an action for wrongful death, the court, in the absence of a showing of good cause, shall enter a lump-sum judgment without applying the discount factor in § 21-3A-9 if:
(1) A responding party elects to have this chapter apply and makes the required showing as to security under § 21-3A-2, but thereafter fails to post security; or
(2) A party fails to maintain security.
If a judgment debtor who is the only person liable for a portion of a judgment for periodic installments fails to post and maintain security, the right to lump-sum payment described in this section applies only against that judgment debtor and the portion of the judgment so owed.
If more than one party is liable for all or a portion of a judgment requiring security under this chapter and the required security is posted by one or more but fewer than all of the parties liable, the security requirements are satisfied and those posting security may proceed under this section to enforce rights for security or lump-sum payment to satisfy or protect rights of reimbursement from a party not posting security.
Source: SL 1986, ch 163, § 8; SL 1988, ch 181, § 5.
21-3A-9. Discount factor.
If future damages are determined in accordance with § 21-3A-4 but are ordered to be paid in advance of the period to which they apply, or base figures are required under § 21-3A-6, the court shall apply a discount factor of three percent, compounded annually.
Source: SL 1986, ch 163, § 9.
21-3A-10. Survivorship of liability for installment payments--Wrongful death action--Qualifying survivor defined.
In all cases covered by this chapter in which future damages are payable in periodic installments, the liability for payment of any installments for medical or other costs of health care or noneconomic loss not yet due at the death of a person entitled to receive these benefits terminates upon the death of that person. The liability for payment of any other installments or portions thereof not yet due at the death of the person entitled to receive them likewise terminates except as provided herein.
If, in an action for wrongful death, a judgment for periodic installments provides payments to more than one person entitled to receive benefits for losses that do not terminate under this section and one or more but fewer than all of them die, the surviving beneficiaries succeed to the shares of the deceased beneficiaries. The surviving beneficiaries are entitled to shares proportionate to their shares in the periodic installments not yet paid, but they are not entitled to receive payments beyond the respective periods specified for them in the judgment.
If, in an action other than one for wrongful death, a judgment for periodic installments is entered and a person entitled to receive benefits for losses that do not terminate under this section under the judgment dies and is survived by one or more qualifying survivors, any periodic installments not yet due at the death shall be shared equitably by those survivors. Amounts due each survivor may not exceed the survivor's economic loss resulting from the death.
Qualifying survivor means a person who, had the death been caused under circumstances giving rise to a cause of action for wrongful death, would have qualified as a beneficiary at the time of the death according to the law that would be applied in an action for wrongful death by the jurisdiction under which the issue of liability was resolved in entering the judgment for periodic installments.
Source: SL 1986, ch 163, § 10.
21-3A-11. Satisfaction of judgment and discharge of debtor.
If security is posted in accordance with § 21-3A-8 and approved under a final judgment entered under this chapter, the judgment is satisfied and the judgment debtor on whose behalf the security is posted is discharged.
Source: SL 1986, ch 163, § 11.
21-3A-12. Rules established by director of Division of Insurance.
The director of the Division of Insurance shall establish rules:
(1) For determining which insurers, self-insurers, plans, or arrangements are financially qualified to provide the security required under this Act and to be designated as qualified insurers;
(2) To require insurers to post security under § 21-3A-8 if found by the court to be obligated and capable of posting security; and
(3) For publishing prior to January first of each year the rate of discount per annum set out in § 21-3A-6.
Source: SL 1986, ch 163, § 12.
21-3A-13. Provisions of chapter severable.
If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable.
Source: SL 1986, ch 163, § 13.
21-3B-1
Definitions.
21-3B-2
Transferee to provide disclosure statement--Information required.
21-3B-3
Transfer effective only upon order of court or administrative authority--Findings
required.
21-3B-4
Rights and obligations following transfer.
21-3B-5
Application for approval of transfer to be made by transferee--Venue--Notice of
proposed transfer.
21-3B-6
Payee may not waive provisions.
21-3B-7
Disputes decided under state law.
21-3B-8
Life-contingent payments not to be transferred--Exception.
21-3B-9
No payee liability for failure to comply with chapter.
21-3B-10
Effect of chapter on existing laws and transfer agreements.
21-3B-11
Transferee solely responsible for certain requirements.
21-3B-12
Applicability of chapter.
21-3B-1. Definitions.
Terms used in this chapter mean:
(1) "Annuity issuer," an insurer that has issued a contract to fund periodic payments under a structured settlement;
(2) "Dependents," a payee's spouse and any minor child and any other person for whom the payee is legally obligated to provide support, including alimony;
(3) "Discounted present value," the present value of future payments determined by discounting such payments to the present using the most recently published applicable federal rate for determining the present value of an annuity, as issued by the United States Internal Revenue Service;
(4) "Gross advance amount," the sum payable to the payee or for the payee's account as consideration for a transfer of structured settlement payment rights before any reductions for transfer expenses or other deductions to be made from such consideration;
(5) "Independent professional advice," advice of an attorney, certified public accountant, actuary, or other licensed professional advisor;
(6) "Interested parties," with respect to any structured settlement, the payee, any beneficiary irrevocably designated under the annuity contract to receive payments following the payee's death, the annuity issuer, the structured settlement obligor, and any other party that has continuing rights or obligations under such structured settlement;
(7) "Net advance amount," the gross advance amount less the aggregate amount of the actual and estimated transfer expenses required to be disclosed under § 21-3B-2(5);
(8) "Payee," an individual who is receiving tax free payments under a structured settlement and proposes to make a transfer of payment rights thereunder;
(9) "Periodic payments," includes both recurring payments and scheduled future lump sum payments;
(10) "Qualified assignment agreement," an agreement providing for a qualified assignment within the meaning of section 130 of the United States Internal Revenue Code, United States Code Title 26, as of January 1, 2001;
(11) "Responsible administrative authority," with respect to a structured settlement, any governmental authority vested by law with exclusive jurisdiction over the settled claim resolved by such structured settlement;
(12) "Settled claim," the original tort claim or workers' compensation claim resolved by a structured settlement;
(13) "Structured settlement," an arrangement for periodic payment of damages for personal injuries or sickness established by settlement or judgment in resolution of a tort claim or for periodic payments in settlement of a workers' compensation claim;
(14) "Structured settlement agreement," the agreement, judgment, stipulation, or release embodying the terms of a structured settlement;
(15) "Structured settlement obligor," with respect to any structured settlement, the party that has the continuing obligation to make periodic payments to the payee under a structured settlement agreement or a qualified assignment agreement;
(16) "Structured settlement payment rights," rights to receive periodic payments under a structured settlement, whether from the structured settlement obligor or the annuity issuer, if at least one of the following applies:
(a) The payee is domiciled in, or the domicile or principal place of business of the structured settlement obligor or the annuity issuer is located in, this state; or
(b) The structured settlement agreement was approved by a court or responsible administrative authority in this state; or
(c) The structured settlement agreement is expressly governed by the laws of this state;
(17) "Terms of the structured settlement," include, with respect to any structured settlement, the terms of the structured settlement agreement, the annuity contract, any qualified assignment agreement, and any order or other approval of any court or responsible administrative authority or other government authority that authorized or approved such structured settlement;
(18) "Transfer," any sale, assignment, pledge, hypothecation, or other alienation or encumbrance of structured settlement payment rights made by a payee for consideration. The term, transfer, does not include the creation of perfection of a security interest in structured settlement payment rights under a blanket security agreement entered into with an insured depository institution, in the absence of any action to redirect the structured settlement payments to such insured depository institution, or an agent or successor in interest thereof, or otherwise to enforce such blanket security interest against the structured settlement payment rights;
(19) "Transfer agreement," the agreement providing for a transfer of structured settlement payment rights;
(20) "Transfer expenses," any expenses of a transfer that are required under the transfer agreement to be paid by the payee or deducted from the gross advance amount, including court filing fees, attorneys fees, escrow fees, lien recordation fees, judgment and lien search fees, finders' fees, commissions, and other payments to a broker or other intermediary. Transfer expenses do not include preexisting obligations of the payee payable for the payee's account from the proceeds of a transfer;
(21) "Transferee," a party acquiring or proposing to acquire structured settlement payment rights through a transfer.
Source: SL 2001, ch 106, § 1.
21-3B-2. Transferee to provide disclosure statement--Information required.
Not less than three days before the date on which a payee signs a transfer agreement, the transferee shall provide to the payee a separate disclosure statement, in bold type no smaller than 14 points, setting forth the following information:
(1) The amounts and due dates of the structured settlement payments to be transferred;
(2) The aggregate amount of such payments;
(3) The discounted present value of the payments to be transferred, which shall be identified as the "calculation of current value of the transferred structured settlement payments under federal standards for valuing annuities" and the amount of the applicable federal rate used in calculating such discounted present value;
(4) The gross advance amount;
(5) An itemized listing of all applicable transfer expenses, other than attorneys' fees and related disbursements payable in connection with the transferee's application for approval of the transfer, and the transferee's best estimate of the amount of any such fees and disbursements;
(6) The net advance amount;
(7) The amount of any penalties or liquidated damages payable by the payee in the event of any breach of the transfer agreement by the payee; and
(8) A statement that the payee has the right to cancel the transfer agreement, without penalty or further obligation, not later than the third business day after the date the agreement is signed by the payee.
Source: SL 2001, ch 106, § 2.
21-3B-3. Transfer effective only upon order of court or administrative authority--Findings required.
No direct or indirect transfer of structured settlement payment rights is effective and no structured settlement obligor or annuity issuer is required to make any payment directly or indirectly to any transferee of structured settlement payment rights unless the transfer has been approved in advance in a final court order or order of a responsible administrative authority based on the following express findings by such court or responsible administrative authority:
(1) The transfer is in the best interest of the payee, taking into account the welfare and support of the payee's dependents;
(2) The payee has been advised in writing by the transferee to seek independent professional advice regarding the transfer and has either received such advice or knowingly waived such advice in writing; and
(3) The transfer does not contravene any applicable statute or the order of any court or other government authority.
Source: SL 2001, ch 106, § 3.
21-3B-4. Rights and obligations following transfer.
Following a transfer of structured settlement payment rights under this chapter:
(1) The structured settlement obligor and the annuity issuer shall, as to all parties except the transferee, be discharged and released from any liability for the transferred payments;
(2) The transferee is liable to the structured settlement obligor and the annuity issuer:
(a) If the transfer contravenes the terms of the structured settlement, for any taxes incurred by such parties as a consequence of the transfer; and
(b) For any other liabilities or costs, including reasonable costs and attorneys' fees, arising from compliance by such parties with the order of the court or responsible administrative authority or arising as a consequence of the transferee's failure to comply with this chapter;
(3) Neither the annuity issuer nor the structured settlement obligor may be required to divide any periodic payment between the payee and any transferee or assignee or between two or more transferees or assignees; and
(4) Any further transfer of structured settlement payment rights by the payee may be made only after compliance with all of the requirements of this chapter.
Source: SL 2001, ch 106, § 4.
21-3B-5. Application for approval of transfer to be made by transferee--Venue--Notice of proposed transfer.
An application under this chapter for approval of a transfer of structured settlement payment rights shall be made by the transferee and may be brought in the county in which the payee resides, in the county in which the structured settlement obligor or the annuity issuer maintains its principal place of business, or in any court or before any responsible administrative authority which approved the structured settlement agreement.
Not less than twenty days prior to the scheduled hearing on any application for approval of a transfer of structured settlement payment rights under § 21-3B-3, the transferee shall file with the court or responsible administrative authority and serve on all interested parties a notice of the proposed transfer and the application for its authorization, including the following with such notice:
(1) A copy of the transferee's application;
(2) A copy of the transfer agreement;
(3) A copy of the disclosure statement required under § 21-3B-2;
(4) A listing of each of the payee's dependents, together with each dependent's age;
(5) Notification that any interested party is entitled to support, oppose, or otherwise respond to the transferee's application, either in person or by counsel, by submitting written comments to the court or responsible administrative authority or by participating in the hearing; and
(6) Notification of the time and place of the hearing and notification of the manner in which, and the time by which written responses to the application must be filed, which may not be less than fifteen days after service of the transferee's notice, in order to be considered by the court or responsible administrative authority.
Source: SL 2001, ch 106, § 5.
21-3B-6. Payee may not waive provisions.
The provisions of this chapter may not be waived by any payee.
Source: SL 2001, ch 106, § 6.
21-3B-7. Disputes decided under state law.
Any transfer agreement entered into on or after July 1, 2001, by a payee who resides in this state shall provide that disputes under such transfer agreement, including any claim that the payee has breached the agreement, shall be determined in and under the laws of this state. No such transfer agreement may authorize the transferee or any other party to confess judgment or consent to entry of judgment against the payee.
Source: SL 2001, ch 106, § 7.
21-3B-8. Life-contingent payments not to be transferred--Exception.
No transfer of structured settlement payment rights may extend to any payments that are life-contingent unless, prior to the date on which the payee signs the transfer agreement, the transferee has established and has agreed to maintain procedures reasonably satisfactory to the annuity issuer and the structured settlement obligor for periodically confirming the payee's survival and giving the annuity issuer and the structured settlement obligor prompt written notice in the event of the payee's death.
Source: SL 2001, ch 106, § 8.
21-3B-9. No payee liability for failure to comply with chapter.
No payee who proposes to make a transfer of structured settlement payment rights may incur any penalty, forfeit any application fee or other payment, or otherwise incur any liability to the proposed transferee or any assignee based on any failure of such transfer to satisfy the conditions of this chapter.
Source: SL 2001, ch 106, § 9.
21-3B-10. Effect of chapter on existing laws and transfer agreements.
Nothing contained in this chapter authorizes any transfer of structured settlement payment rights in contravention of any law or to imply that any transfer under a transfer agreement entered into prior to July 1, 2001, is valid or invalid.
Source: SL 2001, ch 106, § 10.
21-3B-11. Transferee solely responsible for certain requirements.
Compliance with the requirements set forth in § 21-3B-2 and fulfillment of the conditions set forth in § 21-3B-3 shall be solely the responsibility of the transferee in any transfer of structured settlement payment rights, and neither the structured settlement obligor nor the annuity issuer bears any responsibility for, or any liability arising from, noncompliance with such requirements or failure to fulfill such conditions.
Source: SL 2001, ch 106, § 11.
21-3B-12. Applicability of chapter.
This chapter applies to any transfer of structured settlement payment rights under a transfer agreement entered into on or after July 1, 2001. Nothing contained in this chapter implies that any transfer under a transfer agreement reached prior to such date is either effective or ineffective.
Source: SL 2001, ch 106, § 12.
21-5-1
Liability for wrongful death where damages for injury could have been recovered--Unborn child.
21-5-2
Causes of action surviving death of defendant.
21-5-3
Limitation of actions.
21-5-4
Foreign statute of limitations applicable.
21-5-5
Relatives for whose benefit action brought--Personal representative to bring action.
21-5-6
Settlement of claim by personal representative--Court approval required--Consent by
competent beneficiaries.
21-5-7
Damages proportionate to pecuniary injury to beneficiaries.
21-5-8
Apportionment of damages among beneficiaries.
21-5-9
Worker's compensation law governs where applicable.
21-5-1. Liability for wrongful death where damages for injury could have been recovered--Unborn child.
Whenever the death or injury of a person, including an unborn child, shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereto, if death had not ensued, then and in every such case, the corporation which, or the person who, would have been liable, if death had not ensued, or the personal representative of the estate of such person as such personal representative, shall be liable, to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony; and when the action is against such personal representative, the damages recovered shall be a valid claim against the estate of such deceased person. However, an action under this section involving an unborn child shall be for the exclusive benefit of the mother or the lawfully married parents of the unborn child.
Source: SL 1909, ch 301, § 1; RC 1919, § 2929; SDC 1939, § 37.2201; SL 1947, ch 172; SL 1984, ch 158, § 1.
21-5-2. Causes of action surviving death of defendant.
Actions for wrongful death or personal injury shall survive the death of the wrongdoer whether or not the death of the wrongdoer occurred before or after the death or injury of the injured person.
Source: SDC 1939, § 37.2201 as added by SL 1947, ch 172.
21-5-3. Limitation of actions.
Every action for wrongful death shall be commenced within three years after the death of such deceased person.
Source: SL 1909, ch 301, § 3; RC 1919, § 2931; SDC 1939, § 37.2203; SL 1947, ch 173; SL 1951, ch 193; SL 1957, ch 194; SL 1963, ch 235; SL 1967, ch 149.
21-5-4. Foreign statute of limitations applicable.
Whenever the death of a citizen of this state has been caused by a wrongful act, neglect, or default in another state, territory, or foreign country for which a right to maintain an action and recover damages in respect thereto is given by a statute of such other state, territory, or foreign country, such right of action may be enforced in this state within the time prescribed for the commencement of such action, by the statute of such other state, territory, or foreign country.
Source: SL 1909, ch 301, § 2; RC 1919, § 2930; SDC 1939 & Supp 1960, § 37.2202.
21-5-5. Relatives for whose benefit action brought--Personal representative to bring action.
Every action for wrongful death shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person.
Source: SL 1909, ch 301, § 3; RC 1919, § 2931; SDC 1939, § 37.2203; SL 1947, ch 173; SL 1951, ch 193; SL 1957, ch 194; SL 1963, ch 235; SL 1967, ch 149; SL 1995, ch 167, § 188.
21-5-6. Settlement of claim by personal representative--Court approval required--Consent by competent beneficiaries.
Such personal representative may at any time before or after the commencement of a suit for wrongful death settle with the defendant the amount to be paid to him as damages for the wrongful death of the decedent. If such personal representative was appointed in this state and settlement is made before the commencement of a suit such settlement must have the approval of the court of the representative's appointment. If settlement is made at any time after the commencement of suit, whether before or after judgment therein, such settlement must have the consent and approval of the court wherein the action is pending; provided, however, that if the personal representative was appointed in this state he may make such settlement upon the consent and approval of either the court wherein the action is pending or the court of his appointment. If all the statutory beneficiaries are of full age and competent and consent in writing to the proposed settlement the same may be made at any time, before or after suit, without the consent of either court.
Source: SL 1909, ch 301, § 3; RC 1919, § 2931; SDC 1939, § 37.2203; SL 1947, ch 173; SL 1951, ch 193; SL 1957, ch 194; SL 1963, ch 235; SL 1967, ch 149.
21-5-7. Damages proportionate to pecuniary injury to beneficiaries.
In every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.
Source: SL 1909, ch 301, § 3; RC 1919, § 2931; SDC 1939, § 37.2203; SL 1947, ch 173; SL 1951, ch 193; SL 1957, ch 194; SL 1963, ch 235; SL 1967, ch 149.
21-5-8. Apportionment of damages among beneficiaries.
The amount received by such personal representative, whether by settlement or otherwise, shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment, in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiaries.
Source: SL 1909, ch 301, § 3; RC 1919, § 2931; SDC 1939, § 37.2203; SL 1947, ch 173; SL 1951, ch 193; SL 1957, ch 194; SL 1963, ch 235; SL 1967, ch 149; SL 1984, ch 158, § 2.
21-5-9. Worker's compensation law governs where applicable.
Where applicable the law relating to worker's compensation supersedes the provisions of this chapter.
Source: RC 1919, § 2932; SDC 1939 & Supp 1960, § 37.2204.
21-6-1
Action by loser for recovery of losses--Persons liable--Limitation of actions.
21-6-2
Action by state's attorney for benefit of spouse, minor children or public schools.
21-6-1. Action by loser for recovery of losses--Persons liable--Limitation of actions.
Any person who shall lose any thing of value at any game, or by betting on any game, may recover the same or the value thereof from any other person playing at the game at which such thing was lost, or from the person with whom the bet was made, or from the proprietor of the place where the game was played, in a civil action, in which such proprietor and all persons engaged in the game may be joined as parties; provided that such action shall have been commenced within six months after the date of such loss.
Source: SL 1907, ch 155, §§ 1, 4; RC 1919, § 3927; SDC 1939, § 24.0103.
21-6-2. Action by state's attorney for benefit of spouse, minor children or public schools.
In case the losing party fails to bring an action under § 21-6-1 within the time allowed by said section, it shall be the duty of the state's attorney, at any time within six years from the date of the loss, to bring action to recover such thing, or the value thereof, for the benefit of the spouse or minor children of such party, or, in case there be no spouse or minor children, for the benefit of the public schools.
Source: SL 1907, ch 155, § 4; RC 1919, § 3927; SDC 1939, § 24.0103; SL 1979, ch 149, § 10.
21-7-1
Action for waste against conservator or tenant--Treble damages and eviction from
premises.
21-7-2
Extent of injury or malice required to justify forfeiture and eviction.
21-7-1. Action for waste against conservator or tenant--Treble damages and eviction from premises.
If a conservator, tenant for life or years, joint tenant, or tenant in common of real property, commits waste thereon, any person aggrieved by the waste may bring an action against him, in which action there may be judgment for treble damages, forfeiture of the estate of the party offending, and eviction from the premises.
Source: SDC 1939 & Supp 1960, § 37.3601; SL 1993, ch 213, § 97.
21-7-2. Extent of injury or malice required to justify forfeiture and eviction.
Judgment of forfeiture and eviction shall only be given in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion shall be adjudged in the action to be equal to the value of the tenant's estate or unexpired term, or to have been done maliciously.
Source: CCivP 1877, § 653; CL 1887, § 5467; RCCivP 1903, § 694; RC 1919, § 2875; SDC 1939 & Supp 1960, § 37.3602.
21-8-1
Kinds of injunctive relief.
21-8-2
Purposes for which injunction prohibited.
21-8-3
Provisional writ abolished--Temporary restraining order and preliminary
injunction substituted.
21-8-4, 21-8-5.
Repealed.
21-8-6
Restraining order or preliminary injunction to prevent disposal of property during
pendency of action.
21-8-7
Notice required before restraining order or preliminary injunction to suspend
corporate business.
21-8-8
Repealed.
21-8-9
Pleading in lieu of affidavit for restraining order or preliminary injunction--Service of pleading and affidavit.
21-8-10, 21-8-11. Repealed.
21-8-12
Order granting restraining order or preliminary injunction.
21-8-13
Repealed.
21-8-14
Circumstances permitting grant of permanent injunction.
21-8-15
Permanent injunction by judgment or decree in civil action--Procedure.
21-8-16
Judicial power to restrain or enjoin violations of obscenity laws.
21-8-17
Notice and trial before injunction to enforce obscenity laws--Orders to deliver
and destroy obscene matter.
21-8-18
Sale of obscene matter to adults not to be enjoined--Destruction not ordered
unless matter disseminated to minors.
21-8-1. Kinds of injunctive relief.
Relief by injunction is either temporary or permanent. Temporary injunctions may be referred to as interlocutory injunctions, and are either temporary restraining orders or preliminary injunctions. Permanent injunctions may be referred to as final injunctions.
Source: CivC 1877, § 2014; CL 1887, § 4647; RCivC 1903, § 2359; RC 1919, § 2032; SDC 1939 & Supp 1960, § 37.4301; SL 1978, ch 155, § 5.
21-8-2. Purposes for which injunction prohibited.
An injunction cannot be granted:
(1) To stay a judicial proceeding pending at the commencement of the action in which the injunction is demanded, unless such restraint is necessary to prevent a multiplicity of such proceedings;
(2) To stay proceedings in a court of the United States;
(3) To stay proceedings in another state upon a judgment of a court of that state;
(4) To prevent the execution of a public statute, by officers of the law, for public benefit;
(5) To prevent the breach of a contract, the performance of which would not be specifically enforced;
(6) To prevent the exercise of a public or private office in a lawful manner, by the person in possession;
(7) To prevent a legislative act by a municipal corporation;
(8) To enforce a penal law, except in case of nuisance or except when specifically authorized by statute;
(9) To enforce a penalty or forfeiture in any case.
Source: CivC 1877, §§ 1990, 2017; CL 1887, §§ 4623, 4650; RCivC 1903, §§ 2335, 2362; RC 1919, §§ 2031, 2035; SDC 1939 & Supp 1960, § 37.4302; SL 1978, ch 155, § 6.
21-8-3. Provisional writ abolished--Temporary restraining order and preliminary injunction substituted.
The writ of injunction, as a provisional remedy, is abolished, and temporary restraining orders and preliminary injunctions by order are substituted therefor. A temporary restraining order or a preliminary injunction is obtained by order of the court.
Source: CivC 1877, § 2015; CCivP 1877, § 188; CL 1887, §§ 4648, 4984; RCivC 1903, § 2360; RCCivP 1903, § 196; RC 1919, §§ 2033, 2423; SDC 1939 & Supp 1960, §§ 37.4301, 37.4304; SL 1978, ch 155, § 7.
21-8-6. Restraining order or preliminary injunction to prevent disposal of property during pendency of action.
When, during the pendency of an action, it appears by affidavit that a party to the action threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary restraining order or preliminary injunction may be granted to restrain such removal or disposition.
Source: CCivP 1877, § 189, subdiv 3; CL 1887, § 4985, subdiv 3; RCCivP 1903, § 197, subdiv 3; RC 1919, § 2424 (3); SDC 1939 & Supp 1960, § 37.4304 (3); SL 1978, ch 155, § 10.
21-8-7. Notice required before restraining order or preliminary injunction to suspend corporate business.
A temporary restraining order or preliminary injunction to suspend the general and ordinary business of a corporation must not be granted without due notice of the application therefor, to the proper officer of the corporation, except when the state is a party to the proceedings.
Source: CCivP 1877, § 194; CL 1887, § 4990; RCCivP 1903, § 202; RC 1919, § 2429; SDC 1939 & Supp 1960, § 37.4308; SL 1978, ch 155, § 11.
21-8-9. Pleading in lieu of affidavit for restraining order or preliminary injunction--Service of pleading and affidavit.
If a complaint or other pleading is served, it may, if sufficient, be used as part of or in lieu of the affidavit for a temporary restraining order or preliminary injunction, so far as applicable, but this shall not restrict such showing by affidavit as the applicant elects to make. A copy of the complaint or other pleading, if intended as part of the showing, and a copy of any affidavit, so intended, must be served with the restraining order or injunction.
Source: CCivP 1877, §§ 190, 191; CL 1887, §§ 4986, 4987; RCCivP 1903, §§ 198, 199; RC 1919, §§ 2425, 2426; Supreme Court Rule 605, 1939; SDC 1939 & Supp 1960, § 37.4305; SL 1978, ch 155, § 13.
21-8-12. Order granting restraining order or preliminary injunction.
An order granting a temporary restraining order or preliminary injunction may be made by the court in which the action is brought, or by a judge thereof, and when made by a judge may be enforced as an order of the court.
Source: CCivP 1877, § 188; CL 1887, § 4984; RCCivP 1903, § 196; RC 1919, § 2423; SDC 1939 & Supp 1960, § 37.4304; SL 1978, ch 155, § 16.
21-8-14. Circumstances permitting grant of permanent injunction.
Except where otherwise provided by this chapter, a permanent injunction may be granted to prevent the breach of an obligation existing in favor of the applicant:
(1) Where pecuniary compensation would not afford adequate relief;
(2) Where it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief;
(3) Where the restraint is necessary to prevent a multiplicity of judicial proceedings; or
(4) Where the obligation arises from a trust.
Source: CivC 1877, § 2016; CL 1887, § 4649; RCivC 1903, § 2361; RC 1919, § 2034; SDC 1939 & Supp 1960, § 37.4303; SL 1978, ch 155, § 18.
21-8-15. Permanent injunction by judgment or decree in civil action--Procedure.
A permanent injunction is obtained by a judgment or decree in a civil action under the procedure applicable to all civil actions and subject to the limitations of this chapter or other applicable statutes.
Source: SDC 1939 & Supp 1960, § 37.4301; SL 1978, ch 155, § 19.
21-8-16. Judicial power to restrain or enjoin violations of obscenity laws.
The circuit courts of this state and the judges thereof, may, upon application of the attorney general, or any state's attorney or city attorney within his respective jurisdiction, issue any and all proper restraining orders, temporary and permanent injunctions, and any other writs and processes appropriate to carry out and enforce the obscenity and public decency laws of this state. Such restraining orders or injunctions may be issued to prevent any person from violating the obscenity and public decency laws of this state.
Source: SL 1974, ch 165, § 17; SDCL Supp, § 22-24-52; SL 1978, ch 164, § 10.
21-8-17. Notice and trial before injunction to enforce obscenity laws--Orders to deliver and destroy obscene matter.
Notwithstanding § 21-8-16, no restraining order or injunction shall be issued without notice to the person sought to be enjoined. Such person shall be entitled to a trial of the issues within one day after the filing of his answer to the complaint, and a decision shall be rendered by the court within two days of the conclusion of the trial. If a final order or judgment of injunction is entered against the person sought to be enjoined, it shall contain a provision directing the person to surrender any obscene matter in his possession which is subject to the injunction, to the sheriff of the county in which the action was brought, and the sheriff shall be directed to seize and destroy such matter.
Source: SL 1974, ch 165, § 17; SDCL Supp, § 22-24-53; SL 1978, ch 164, § 12.
21-8-18. Sale of obscene matter to adults not to be enjoined--Destruction not ordered unless matter disseminated to minors.
The final order or judgment of injunction shall not enjoin or prohibit a person from selling, distributing, or promoting matter which is harmful to minors, to persons other than minors, nor shall it order the seizure and destruction of matter harmful to minors unless the court finds that the person was selling, distributing, or promoting, or intends to sell, distribute, or promote such matter to minors.
Source: SL 1974, ch 165, § 22; SDCL Supp, § 22-24-54; SL 1978, ch 164, § 14.
21-9-1
Performance may be compelled except as provided.
21-9-2
Obligations and agreements not specifically enforceable.
21-9-3
Unfair and unreasonable contracts not specifically enforceable.
21-9-4
Mutuality of remedy or full performance by plaintiff required for specific
performance.
21-9-5
Performance of conditions precedent required for specific performance--Compensation for plaintiff's defaults.
21-9-6
Clear title required for specific performance of agreement to purchase property.
21-9-7
Real property obligation enforceable against successor in interest--Good faith
purchaser--Exoneration by conveyance.
21-9-8
Performance or offer to perform in lieu of signature of written contract.
21-9-9
Adequacy of compensation for failure to transfer property.
21-9-10
Compelling delivery of personal property to person entitled to possession.
21-9-11
Specific enforcement of penalty not permitted--Contract enforceable despite penalty
or liquidated damages clause.
21-9-1. Performance may be compelled except as provided.
The specific performance of an obligation may be compelled, except as otherwise provided in the statutes relating to such remedy.
Source: CivC 1877, § 1994; CL 1887, § 4627; RCivC 1903, § 2339; RC 1919, § 2010; SDC 1939 & Supp 1960, § 37.4601.
21-9-2. Obligations and agreements not specifically enforceable.
The following obligations cannot be specifically enforced:
(1) An obligation to render personal service;
(2) An obligation to employ another in personal service;
(3) An agreement to submit a controversy to arbitration except as authorized in the Uniform Arbitration Act;
(4) An agreement to perform an act which the party has not power lawfully to perform when required to do so;
(5) An agreement to procure the act or consent of the spouse of the contracting party, or of any other third person;
(6) An agreement, the terms of which are not sufficiently certain, to make the precise act which is to be done clearly ascertainable.
Source: CivC 1877, § 1999; CL 1887, § 4632; RCivC 1903, § 2344; RC 1919, § 2015; SDC 1939 & Supp 1960, § 37.4602; SL 1971, ch 157, § 26; SL 1979, ch 149, § 11.
21-9-3. Unfair and unreasonable contracts not specifically enforceable.
Specific performance cannot be enforced against a party to a contract in any of the following cases:
(1) If he has not received an adequate consideration for the contract;
(2) If it is not, as to him, just and reasonable;
(3) If his assent was obtained by misrepresentation, concealment, circumvention, or unfair practice of any party, to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled;
(4) If his assent was given under the influence of mistake, misapprehension, or surprise, except that where the contract provides for compensation in case of mistake, a mistake within the scope of such provision may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced.
Source: CivC 1877, § 2000; CL 1887, § 4633; RCivC 1903, § 2345; RC 1919, § 2016; SDC 1939 & Supp 1960, § 37.4603.
21-9-4. Mutuality of remedy or full performance by plaintiff required for specific performance.
Neither party to an obligation can be compelled specifically to perform it, unless the other party thereto has performed, or is compellable specifically to perform, everything to which the former is entitled under the same obligation, either completely or nearly so, together with full compensation for any want of entire performance.
Source: CivC 1877, § 1995; CL 1887, § 4628; RCivC 1903, § 2340; RC 1919, § 2011; SDC 1939 & Supp 1960, § 37.4604.
21-9-5. Performance of conditions precedent required for specific performance--Compensation for plaintiff's defaults.
Specific performance cannot be enforced in favor of a party who has not fully and fairly performed all the conditions precedent on his part to the obligation of the other party, except when his failure to perform is only partial, and either entirely immaterial or capable of being fully compensated; in which case specific performance may be compelled, upon full compensation being made for the default.
Source: CivC 1877, § 2001; CL 1887, § 4634; RCivC 1903, § 2346; RC 1919, § 2017; SDC 1939 & Supp 1960, § 37.4605.
21-9-6. Clear title required for specific performance of agreement to purchase property.
An agreement for the sale of property cannot be specifically enforced in favor of a seller who cannot give to the buyer a title free from reasonable doubt.
Source: CivC 1877, § 2002; CL 1887, § 4635; RCivC 1903, § 2347; RC 1919, § 2018; SDC 1939 & Supp 1960, § 37.4610.
21-9-7. Real property obligation enforceable against successor in interest--Good faith purchaser--Exoneration by conveyance.
Whenever an obligation in respect to real property would be specifically enforced against a particular person, it may be in like manner enforced against any other person claiming under him by a title created subsequently to the obligation, except a purchaser or encumbrancer in good faith and for value, and except, also, that any such person may exonerate himself by conveying all his estate to the person entitled to enforce the obligation.
Source: CivC 1877, § 2003; CL 1887, § 4636; RCivC 1903, § 2348; RC 1919, § 2019; SDC 1939 & Supp 1960, § 37.4611.
21-9-8. Performance or offer to perform in lieu of signature of written contract.
A party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed, or offers to perform it on his part, and the case is otherwise proper for enforcing specific performance.
Source: CivC 1877, § 1997; CL 1887, § 4630; RCivC 1903, § 2342; RC 1919, § 2013; SDC 1939 & Supp 1960, § 37.4606.
21-9-9. Adequacy of compensation for failure to transfer property.
It is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation, and that the breach of an agreement to transfer personal property can be thus relieved.
Source: CivC 1877, § 1996; CL 1887, § 4629; RCivC 1903, § 2341; RC 1919, § 2012; SDC 1939 & Supp 1960, § 37.4607.
21-9-10. Compelling delivery of personal property to person entitled to possession.
Any person having the possession or control of a particular article of personal property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession.
Source: CivC 1877, § 1993; CL 1887, § 4626; RCivC 1903, § 2338; RC 1919, § 2009; SDC 1939 & Supp 1960, § 37.4608.
21-9-11. Specific enforcement of penalty not permitted--Contract enforceable despite penalty or liquidated damages clause.
No specific relief can be granted to enforce a penal law, except in case of nuisance, nor to enforce a penalty or forfeiture in any case; but a contract otherwise proper to be enforced specifically may be so enforced, though a penalty is imposed or the damages are liquidated for its breach, and the party in default is willing to pay the same.
Source: CivC 1877, §§ 1990, 1998; CL 1887, §§ 4623, 4631; RCivC 1903, §§ 2335, 2343; RC 1919, §§ 2006, 2014; SDC 1939 & Supp 1960, § 37.4609.
CHAPTER 21-10
REMEDIES AGAINST NUISANCES
21-10-1 Acts and omissions constituting nuisances.
21-10-2 Acts under statutory authority not deemed nuisance.
21-10-3 Public and private nuisances defined.
21-10-4 Public nuisance not legalized by lapse of time.
21-10-5 Remedies against nuisances enumerated.
21-10-6 Abatement of nuisance--Notice required--Taxing cost of abatement--Civil action.
21-10-7 Damages for past injury recoverable after abatement.
21-10-8 Liability of successive owners for continuing nuisance.
21-10-9 Persons entitled to maintain civil action against nuisance--Injunction and damages recoverable.
21-10-10 House of ill fame declared nuisance--Injunction and abatement.
21-10-11 State's attorney or citizen entitled to maintain action for injunction against house of ill fame.
21-10-12 Temporary injunction against house of ill fame--Proof required--Notice to defendant.
21-10-13 Binding effect on defendant of injunction against house of ill fame--Violation as contempt.
21-10-14 Approval required for dismissal of action against house of ill fame--Substitution of parties plaintiff.
21-10-15 Action against house of ill fame triable at first term of court--Evidence of reputation admissible.
21-10-16 Costs taxable to plaintiff on finding of no reasonable ground.
21-10-17 Order of abatement against house of ill fame--Removal and sale of property--Building closed--Use of building as contempt.
21-10-18 Officer's fees for enforcing order of abatement against house of ill fame--Proceeds of sale of property.
21-10-19 Release of property to owner on payment of costs and filing of bond--Conditions of bond--Effect of release.
21-10-20 Punishment of violations of injunction--Arrest and trial--Penalty.
21-10-21 21-10-21 to 21-10-24. Repealed by SL 2014, ch 108, §§ 3 to 6.
21-10-25 Agricultural operation defined.
21-10-25.1 Costs assessed against plaintiff in certain agricultural operation nuisance actions.
21-10-25.2 State policy to protect agricultural operations from nuisance suits.
21-10-25.3 Agricultural operations protected.
21-10-25.4 Damages due to water pollution or land overflow not affected by protected status.
21-10-25.5 Agricultural operation within municipality not protected.
21-10-25.6 Frivolous action against agricultural operation--Costs and expenses recoverable.
21-10-25.7 Agricultural operation nuisance--Compensatory damages.
21-10-25.8 Agricultural operation nuisance--Punitive damages.
21-10-25.9 Agricultural operation nuisance--Applicability of limitations.
21-10-25.10 Agricultural operation nuisance--Standing--Burden of proof--Violation required.
21-10-26 Logging slash defined.
21-10-27 Abandonment of logging slash as public nuisance--Penalty.
21-10-28 Use or operation of sport shooting range.
21-10-28.1 Significant threat to human life or private habitations.
21-10-29 Injunction not available to certain adversely affected property owners.
21-10-30 Recovery based on negligence or willful or wanton misconduct not precluded.
21-10-31 Provisions inapplicable where substantial change in primary use has occurred.
21-10-32 Regulation of sport shooting ranges not prohibited.
21-10-33 Sport shooting range defined.
21-10-34 Prospective application of §§ 21-10-28 to 21-10-33.
21-10-1. Acts and omissions constituting nuisances.
A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;
(2) Offends decency;
(3) Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, any lake or navigable river, bay, stream, canal, or basin, or any public park, square, sidewalk, street, or highway;
(4) In any way renders other persons insecure in life, or in the use of property.
Source: CivC 1877, § 2047; CL 1887, § 4681; RCivC 1903, § 2393; RC 1919, § 2066; SDC 1939 & Supp 1960, § 37.4701; SL 2020, ch 30, § 14.
21-10-2. Acts under statutory authority not deemed nuisance.
Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.
Source: CivC 1877, § 2050; CL 1887, § 4684; RCivC 1903, § 2396; RC 1919, § 2069; SDC 1939 & Supp 1960, § 37.4703.
21-10-3. Public and private nuisances defined.
A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal. Every other nuisance is private.
Source: CivC 1877, §§ 2048, 2049; CL 1887, §§ 4682, 4683; RCivC 1903, §§ 2394, 2395; RC 1919, §§ 2067, 2068; SDC 1939 & Supp 1960, § 37.4702.
21-10-4. Public nuisance not legalized by lapse of time.
No lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right.
Source: CivC 1877, § 2053; CL 1887, § 4687; RCivC 1903, § 2399; RC 1919, § 2072; SDC 1939 & Supp 1960, § 37.4704.
21-10-5. Remedies against nuisances enumerated.
Remedies against any nuisance are:
(1) A civil action;
(2) Abatement; and
(3) In cases of public nuisance only, the additional remedy of indictment or information as prescribed by statute and rules relating thereto.
Source: CivC 1877, §§ 2054, 2055, 2059; CL 1887, §§ 4688, 4689, 4693; RCivC 1903, §§ 2400, 2401, 2405; RC 1919, §§ 2073, 2074, 2086; SDC 1939 & Supp 1960, § 37.4707.
21-10-6. Abatement of nuisance--Notice required--Taxing cost of abatement--Civil action.
A public nuisance may be abated without civil action by any public body or officer as authorized by law. Any municipality, county, or township may defray the cost of abating a public nuisance by taxing the cost thereof by assessment against the real property on which the nuisance occurred or against the real property abutting or adjoining the unrepaired sidewalk as set forth in § 9-46-2. If the nuisance abated is an unsafe or dilapidated building, unrepaired sidewalk, junk, trash, debris, or similar nuisance arising from the condition of the property, the municipality, county, or township may commence a civil action against the owner of the real property for its costs of abatement in lieu of taxing the cost by special assessment.
Any private person may abate a public nuisance which is specially injurious to that person or any private nuisance injurious to that person by removing or if necessary destroying that which constitutes the nuisance without committing a breach of the peace or doing unnecessary injury. If a private nuisance results from a mere omission of the wrongdoer, and cannot be abated without entering upon the wrongdoer's land, reasonable notice shall be given to the wrongdoer before entering to abate it.
Source: SDC 1939 & Supp 1960, § 37.4707; SL 1981, ch 167; SL 1991, ch 182; SL 2004, ch 145, § 1; SL 2020, ch 30, § 15.
21-10-7. Damages for past injury recoverable after abatement.
The abatement of a nuisance does not prejudice the right of any person to recover damages for its past existence.
Source: CivC 1877, § 2052; CL 1887, § 4686; RCivC 1903, § 2398; RC 1919, § 2071; SDC 1939 & Supp 1960, § 37.4706.
21-10-8. Liability of successive owners for continuing nuisance.
Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by a former owner, is liable therefor in the same manner as the one who first created it.
Source: CivC 1877, § 2051; CL 1887, § 4685; RCivC 1903, § 2397; RC 1919, § 2070; SDC 1939 & Supp 1960, § 37.4705.
21-10-9. Persons entitled to maintain civil action against nuisance--Injunction and damages recoverable.
The remedy by civil action against public nuisance may be maintained by any public body or officer authorized thereto by law or official duty, or by any private person if it is specially injurious to himself. Such remedy also may be used by any person whose property is injuriously affected or whose personal enjoyment is lessened by any nuisance public or private. In all such actions the nuisance may be enjoined, or ordered abated, and damages recovered in addition.
Source: CivC 1877, § 2056; CCivP 1877, § 651; CL 1887, §§ 4690, 5465; RCivC 1903, § 2402; RCCivP 1903, § 692; RC 1919, §§ 2075, 2873; SDC 1939 & Supp 1960, § 37.4707.
21-10-10. House of ill fame declared nuisance--Injunction and abatement.
Whoever shall own, lease, establish, maintain, or operate any place for purposes of lewdness, assignation, or prostitution, is guilty of a nuisance and the place, including ground, and all contents are declared a nuisance and shall be enjoined and abated as provided in §§ 21-10-11 to 21-10-20, inclusive.
Source: SL 1913, ch 123, § 1; RC 1919, § 2078; SDC 1939 & Supp 1960, § 37.4801.
21-10-11. State's attorney or citizen entitled to maintain action for injunction against house of ill fame.
Whenever a nuisance is kept, maintained, or exists, as defined in § 21-10-10, the state's attorney or any citizen of the county may maintain an action in equity in the name of the state, upon the relation of such state's attorney or citizen, perpetually to enjoin said nuisance, the person or persons conducting the same, and the owner or agent of the building or ground upon which said nuisance exists.
Source: SL 1913, ch 123, § 2; RC 1919, § 2079; SDC 1939 & Supp 1960, § 37.4802.
21-10-12. Temporary injunction against house of ill fame--Proof required--Notice to defendant.
In an action under § 21-10-11 the court, or a judge in vacation, shall upon the presentation of a complaint alleging that the nuisance complained of exists, allow a temporary injunction without bond, if it shall be made to appear to the satisfaction of the court or judge by evidence in the form of affidavits, depositions, oral testimony, or otherwise, as the plaintiff may elect that such nuisance exists, unless the court or judge, by previous order, shall have directed the form and manner in which it shall be presented. Three days' notice in writing shall be given the defendant of the hearing of the application, and if then continued at his instance, the temporary injunction shall be granted as a matter of course.
Source: SL 1913, ch 123, § 2; RC 1919, § 2079; SDC 1939 & Supp 1960, § 37.4802.
21-10-13. Binding effect on defendant of injunction against house of ill fame--Violation as contempt.
When an injunction has been granted pursuant to § 21-10-12, it shall be binding on the defendant throughout the judicial circuit in which it was issued, and any violation of such injunction shall be a contempt as provided in § 21-10-20.
Source: SL 1913, ch 123, § 2; RC 1919, § 2079; SDC 1939 & Supp 1960, § 37.4802.
21-10-14. Approval required for dismissal of action against house of ill fame--Substitution of parties plaintiff.
If the complaint in an action pursuant to § 21-10-11 is filed by a citizen, it shall not be dismissed except upon a sworn statement made by the plaintiff and his attorney setting forth the reasons why the action should be dismissed, and the dismissal approved by the state's attorney, in writing, or in open court. If the court is of the opinion that the action ought not to be dismissed, he may direct the state's attorney to prosecute said action to judgment, and if the action is continued more than one term of court, any citizen of the county or the state's attorney may be substituted for the party plaintiff and prosecute said action to judgment.
Source: SL 1913, ch 123, § 3; RC 1919, § 2080; SDC 1939 & Supp 1960, § 37.4803.
21-10-15. Action against house of ill fame triable at first term of court--Evidence of reputation admissible.
An action pursuant to § 21-10-11 when brought shall be triable at the first term of court after due and timely service of the notice has been given, and in such action evidence of the general reputation of the place shall be admissible for the purpose of proving the existence of such nuisance.
Source: SL 1913, ch 123, § 3; RC 1919, § 2080; SDC 1939 & Supp 1960, § 37.4803.
21-10-16. Costs taxable to plaintiff on finding of no reasonable ground.
If an action pursuant to § 21-10-11 is brought by a citizen, and the court finds there was no reasonable ground or cause for said action, the costs may be taxed to such citizen.
Source: SL 1913, ch 123, § 3; RC 1919, § 2080; SDC 1939 & Supp 1960, § 37.4803.
21-10-17. Order of abatement against house of ill fame--Removal and sale of property--Building closed--Use of building as contempt.
If the existence of the nuisance be established in an action as provided in § 21-10-11, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the building or place of all fixtures, furniture, musical instruments, or movable property used in conducting the nuisance, and shall direct the sale thereof in the manner provided for the sale of chattels under execution, and the effectual closing of the building or place against its use for any purpose, and so keeping it closed for a period of one year, unless sooner released. If any person shall break and enter or use a building, erection, or place so directed to be closed, he shall be punished as for contempt as provided in § 21-10-20.
Source: SL 1913, ch 123, § 5; RC 1919, § 2082; SDC 1939 & Supp 1960, § 37.4805.
21-10-18. Officer's fees for enforcing order of abatement against house of ill fame--Proceeds of sale of property.
For removing and selling the movable property pursuant to § 21-10-17, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling like property on execution, and for closing the premises and keeping them closed, a reasonable sum shall be allowed by the court. The proceeds of the sale of the personal property, as provided in § 21-10-17, shall be applied in payment of the costs of the action and abatement, and the balance, if any, shall be paid to the defendant.
Source: SL 1913, ch 123, §§ 5, 6; RC 1919, §§ 2082, 2083; SDC 1939 & Supp 1960, § 37.4805.
21-10-19. Release of property to owner on payment of costs and filing of bond--Conditions of bond--Effect of release.
If the owner appears and pays all costs of the proceeding, and files a bond with sureties to be approved by the clerk in the full value of the property, to be ascertained by the court or, in vacation by the judge, conditioned that he will immediately abate said nuisance and prevent the same from being established or kept therein within a period of one year thereafter, the court or, in vacation the judge, may, if satisfied of his good faith, order the premises closed under the order of abatement to be delivered to said owner, and said order of abatement canceled so far as the same may relate to said property; and if said bond be given and costs therein paid before judgment and order of abatement, the action shall be thereby abated as to said building only. The release of the property under the provisions of this section shall not release it from any judgment, lien, penalty, or liability to which it may be subject by law.
Source: SL 1913, ch 123, § 7; RC 1919, § 2084; SDC 1939 & Supp 1960, § 37.4806.
21-10-20. Punishment of violations of injunction--Arrest and trial--Penalty.
In case of the violation of any injunction granted under the provisions of §§ 21-10-10 to 21-10-19, inclusive, the court, or in vacation a judge thereof, may summarily try and punish the offender. The proceedings shall be commenced by filing with the clerk of courts, an information under oath, setting out the alleged facts constituting such violation, upon which the court or judge shall cause a warrant to issue, under which the defendant shall be arrested. The trial may be had upon affidavits, or either party may demand the production and oral examination of the witnesses. A party found guilty of contempt under the provisions of this section shall be guilty of a Class 2 misdemeanor.
Source: SL 1913, ch 123, § 4; RC 1919, § 2081; SDC 1939 & Supp 1960, § 37.4804; revised pursuant to SL 1976, ch 158, § 43-6.
21-10-25. Agricultural operation defined.
As used in this chapter, the term, agricultural operation, includes any facility or appurtenance used in the production or commercial processing of crops, timber, livestock, swine, poultry, livestock products, swine products, or poultry products, or in any agrotourism activity as defined in § 20-9-12.
Source: SL 1991, ch 183, § 3; SDCL § 21-10-25.3; SL 2023, ch 65, §§ 3, 8.
21-10-25.1. Costs assessed against plaintiff in certain agricultural operation nuisance actions.
If an action pursuant to § 21-10-1 is brought against an agricultural operation existing continuously, prior to the action, and which is located within one mile of the boundaries of the land use or occupancy of the plaintiff, and if the court finds there was no reasonable ground or cause for the action, the costs may be assessed to the plaintiff.
Source: SL 1987, ch 161; SDCL § 21-10-25; SL 2023, ch 65, §§ 1, 8.
21-10-25.2. State policy to protect agricultural operations from nuisance suits.
It is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The Legislature finds that when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations, and many persons may be discouraged from making investments in farm improvements. It is the purpose of §§ 21-10-25 and 21-10-25.2 to 21-10-25.6, inclusive, to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.
Source: SL 1991, ch 183, § 1; SL 1994, ch 162; SDCL § 21-10-25.1; SL 2023, ch 65, § 8.
21-10-25.3. Agricultural operations protected.
No agricultural operation or any of its appurtenances may be deemed to be a nuisance, private or public, by any changed conditions in the locality of the operation or its appurtenances, after the operation has been in existence for more than one year, if the operation was not a nuisance at the time the operation began.
Any agricultural operation protected pursuant to this section may reasonably expand its operation, without losing its protected status, if all county, municipal, state, and federal environmental codes, laws, and regulations are met by the agricultural operation.
The protected status of an agricultural operation, once acquired, is assignable, alienable, and inheritable. The protected status of an agricultural operation, once acquired, may not be waived by the temporary cessation of farming, by diminishing the size of the operation, or by a change in the type of feeding operation or crop produced.
This section does not apply if a nuisance results from the negligent or improper operation of an agricultural operation or its appurtenances.
Source: SL 1991, ch 183, § 2; SL 1994, ch 162; SDCL § 21-10-25.2; SL 2023, ch 65, §§ 2, 8.
21-10-25.4. Damages due to water pollution or land overflow not affected by protected status.
The provisions of §§ 21-10-25.2 and 21-10-25.3 do not affect or defeat the right of any person, firm, or corporation to recover damages for any injuries sustained by it as a result of the pollution or other change in the quantity or quality of water used by that person, firm, or corporation for private or commercial purposes, or as a result of any overflow of land owned by or in the possession of any such person, firm, or corporation.
Source: SL 1991, ch 183, § 4; SL 2023, ch 65, § 8.
21-10-25.5. Agricultural operation within municipality not protected.
The provisions of §§ 21-10-25.2 and 21-10-25.3 do not apply to any nuisance resulting from an agricultural operation located within the limits of any incorporated municipality on January 1, 1991.
Source: SL 1991, ch 183, § 5; SL 2023, ch 65, § 8.
21-10-25.6. Frivolous action against agricultural operation--Costs and expenses recoverable.
In any nuisance action brought in which an agricultural operation is alleged to be a nuisance, and which is found to be frivolous by the court, the defendant shall recover the aggregate amount of costs and expenses determined by the court to have been reasonably incurred in his behalf in connection with the defense of such action, together with a reasonable amount for attorney's fees.
Source: SL 1991, ch 183, § 6.
21-10-25.7. Agricultural operation nuisance--Compensatory damages.
The compensatory damages that may be awarded to a plaintiff for a private nuisance action, in which the alleged nuisance resulted from an agricultural operation are as follows:
(1) If the nuisance is a permanent nuisance, compensatory damages are measured by the reduction in the fair market value of the plaintiff's property caused by the nuisance, but not exceeding the fair market value of the property; and
(2) If the nuisance is a temporary nuisance, compensatory damages are limited to the reduction in the fair rental value of the plaintiff's property caused by the nuisance.
Source: SL 2023, ch 65, § 4.
21-10-25.8. Agricultural operation nuisance--Punitive damages.
Any punitive damages claim in a private nuisance action brought against an agricultural operation is determined pursuant to § 21-3-2. Additionally, a plaintiff may not recover punitive damages in a nuisance action against an agricultural operation unless:
(1) The alleged nuisance is based on substantially the same conduct that was subject to a civil enforcement judgment or criminal conviction taken by any county, municipal, state, or federal environmental regulatory agency pursuant to a notice of violation for the conduct alleged to be the source of the nuisance; and
(2) The conviction or judgment occurred within three years of the first action forming the basis of the nuisance action.
Source: SL 2023, ch 65, § 5.
21-10-25.9. Agricultural operation nuisance--Applicability of limitations.
Sections 21-10-25.7 and 21-10-25.8 do not:
(1) Apply to any cause of action brought against an agricultural operation for negligence, trespass, personal injury, strict liability, or other cause of action for tort liability, other than nuisance; and
(2) Prohibit or limit any request for injunctive relief that is otherwise available.
Source: SL 2023, ch 65, § 6.
21-10-25.10. Agricultural operation nuisance--Standing--Burden of proof--Violation required.
A nuisance action may not be filed against an agricultural operation unless the plaintiff is an owner or lessee of the real property affected by the conditions alleged to be a nuisance, and the real property is located within one mile of the source of the activity or structure alleged to be a nuisance.
An agricultural operation may not be held liable for nuisance unless the plaintiff proves by clear and convincing evidence that the claim arises out of conduct that did not comply with any county, municipal, state, or federal law or regulation.
Source: SL 2023, ch 65, § 7.
21-10-26. Logging slash defined.
For the purposes of this section and § 21-10-27, the term "logging slash" is logging debris consisting of treetops, limbs, cull logs, and other separate vegetation remaining after harvest which has no commercial value. Logging slash shall be treated by lopping and scattering the vegetation, by removal from the site or by piling and burning. Standards for lopping and scattering, abandonment, removal, or piling and burning, and procedures for the enforcement of those standards, shall be established by rules promulgated by the Division of Forestry pursuant to chapter 1-26.
Source: SL 1989, ch 187, § 1; SL 1990, ch 30, § 21.
21-10-27. Abandonment of logging slash as public nuisance--Penalty.
The abandonment of untreated logging slash in a timber harvesting operation consisting of ten acres or more is a public nuisance. Abandonment of untreated logging slash in a timber harvesting operation of ten acres or more is a Class 1 misdemeanor.
Source: SL 1989, ch 187, § 2.
21-10-28. Use or operation of sport shooting range.
The use or operation of a sport shooting range may not be enjoined as a nuisance if the range is in compliance with those statutes, regulations, and ordinances that applied to the range and its operation at the time when the initial operation of the range commenced. The use or operation of a sport shooting range may not be enjoined as a nuisance due to any subsequent change in any local regulation or ordinance pertaining to the normal operation and use of sport shooting ranges. However, if the usage or design of the range results in a significant threat to human life or private habitations, a nuisance is constituted and an injunction may prescribe appropriate relief.
Source: SL 1999, ch 113, § 1; SL 2013, ch 104, § 1, eff. Mar. 21, 2013.
21-10-28.1. Significant threat to human life or private habitations.
As used in § 21-10-28, a significant threat to human life or private habitations exists, if shots or ricochets from a sport shooting range not infrequently strike or pass over private property which is frequented by persons or where a private habitation exists. A significant threat to human life or private habitations continues to exist unless or until shooting protocols are altered and enforced or the shooting range is redesigned so that shots or ricochets no longer strike or pass over private property as described in this section.
Source: SL 2013, ch 104, § 2, eff. Mar. 21, 2013.
21-10-29. Injunction not available to certain adversely affected property owners.
The use or operation of a sport shooting range may not be enjoined as a nuisance by a person who acquires title to real property adversely affected by the normal operation and use of a sport shooting range which commenced operation prior to the time the person acquired title.
Source: SL 1999, ch 113, § 2.
21-10-30. Recovery based on negligence or willful or wanton misconduct not precluded.
The provisions of §§ 21-10-28 to 21-10-34, inclusive, do not apply to any recovery for any act or omission relating to the operation or use of any sport shooting range based on negligence or willful or wanton misconduct.
Source: SL 1999, ch 113, § 3.
21-10-31. Provisions inapplicable where substantial change in primary use has occurred.
The provisions of §§ 21-10-28 to 21-10-34, inclusive, do not apply if there has been a substantial change in the primary use of a sport shooting range.
Source: SL 1999, ch 113, § 4.
21-10-32. Regulation of sport shooting ranges not prohibited.
Sections 21-10-28 to 21-10-34, inclusive, do not prohibit a local government from regulating the location and construction of sport shooting ranges after July 1, 1999.
Source: SL 1999, ch 113, § 5.
21-10-33. Sport shooting range defined.
For the purposes of §§ 21-10-28 to 21-10-34, inclusive, a sport shooting range is an area designed and operated for the use of rifles, shotguns, or pistols as a means of silhouette, skeet, trap, black powder, or other sport shooting. A sport shooting range includes any shooting range located on public or private land or operated by a private entity or by a public entity, and includes a law enforcement shooting range.
Source: SL 1999, ch 113, § 6; SL 2013, ch 104, § 3, eff. Mar. 21, 2013.
21-10-34. Prospective application of §§ 21-10-28 to 21-10-33.
The provisions of §§ 21-10-28 to 21-10-34, inclusive, apply prospectively and do not apply to any action filed before July 1, 1999.
Source: SL 1999, ch 113, § 7.
21-11-1
Fraud or mistake as ground for revision.
21-11-2
Presumption of intent to make equitable agreement.
21-11-3
Intent considered in revising instrument--Court not restricted by language.
21-11-4
Revision and specific enforcement in combined or separate proceedings.
21-11-1. Fraud or mistake as ground for revision.
When through fraud or mutual mistake of the parties, or a mistake of one party which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.
Source: CivC 1877, § 2004; CL 1887, § 4637; RCivC 1903, § 2349; RC 1919, § 2020; SDC 1939 & Supp 1960, § 37.0601.
21-11-2. Presumption of intent to make equitable agreement.
For the purpose of revising a contract it must be presumed that all the parties thereto intended to make an equitable and conscientious agreement.
Source: CivC 1877, § 2005; CL 1887, § 4638; RCivC 1903, § 2350; RC 1919, § 2021; Supreme Court Rule 563, 1939; SDC 1939 & Supp 1960, § 37.0603.
21-11-3. Intent considered in revising instrument--Court not restricted by language.
In revising a written instrument, the court may inquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the inquiry what the language of the instrument was intended to be.
Source: CivC 1877, § 2006; CL 1887, § 4639; RCivC 1903, § 2351; RC 1919, § 2022; Supreme Court Rule 562, 1939; SDC 1939 & Supp 1960, § 37.0602.
21-11-4. Revision and specific enforcement in combined or separate proceedings.
A contract may be revised and specifically enforced in one proceeding or in separate proceedings.
Source: CivC 1877, § 2007; CL 1887, § 4640; RCivC 1903, § 2352; RC 1919, § 2023; SDC 1939 & Supp 1960, § 37.0604.
21-12-1
Grounds for rescission.
21-12-2
Restoration to original condition required on rescission for mistake.
21-12-3
Compensation required of plaintiff for rescission.
21-12-1. Grounds for rescission.
The rescission of a written contract may be adjudged on the application of a party aggrieved:
(1) In any of the cases mentioned in § 53-11-2;
(2) Where the contract is unlawful, for causes not apparent upon its face, and the parties were not equally in fault;
(3) When the public interest will be prejudiced by permitting it to stand.
Source: CivC 1877, § 2008; CL 1887, § 4641; RCivC 1903, § 2353; RC 1919, § 2024; SDC 1939 & Supp 1960, § 37.0701.
21-12-2. Restoration to original condition required on rescission for mistake.
Rescission cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same condition as if the contract had not been made.
Source: CivC 1877, § 2009; CL 1887, § 4642; RCivC 1903, § 2354; RC 1919, § 2025; SDC 1939 & Supp 1960, § 37.0702.
21-12-3. Compensation required of plaintiff for rescission.
On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to make any compensation to the other which justice may require.
Source: CivC 1877, § 2010; CL 1887, § 4643; RCivC 1903, § 2355; RC 1919, § 2026; SDC 1939 & Supp 1960, § 37.0703.
21-13-1
Cancellation ordered on apprehension of injury--Invalidity apparent on face of
instrument.
21-13-2
Partial cancellation of instrument.
21-13-1. Cancellation ordered on apprehension of injury--Invalidity apparent on face of instrument.
A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may upon his application, be so adjudged and ordered to be delivered up or canceled; but if the invalidity is apparent upon its face or upon the face of another instrument necessary to its use in evidence it is not deemed capable of causing such injury.
Source: CivC 1877, §§ 2011, 2012; CL 1887, §§ 4644, 4645; RCivC 1903, §§ 2356, 2357; RC 1919, §§ 2027, 2028; SDC 1939 & Supp 1960, § 37.0801.
21-13-2. Partial cancellation of instrument.
Where an instrument is evidence of different rights or obligations, it may be canceled in part and allowed to stand for the residue.
Source: CivC 1877, § 2013; CL 1887, § 4646; RCivC 1903, § 2358; RC 1919, § 2029; SDC 1939 & Supp 1960, § 37.0802.
21-14-1
Remedies available for recovery of property--Civil action to recover possession--Title
and possessory actions combined.
21-14-2
Order to permit entry for surveys in action involving real property--Liability for
unnecessary injury to property.
21-14-3
Action to recover real property not prejudiced by alienation.
21-14-4
Plaintiff's right to recover real property terminated while action pending--Damages
for withholding.
21-14-5
Compensation for improvements to real property made by defendant claiming in
good faith.
21-14-6
Determination of title, removal of clouds and commissioner's conveyance on absence
or refusal of defendant to convey real property.
21-14-1. Remedies available for recovery of property--Civil action to recover possession--Title and possessory actions combined.
A person entitled to specific real or personal property by reason of a perfected title or a claim of title which ought to be perfected, may recover the same by any of the remedies provided by law and if no specific remedy is applicable, by a civil action according to the facts, and in such cases the judgment may provide for delivery of the possession by specifically commanding the person so to do, or by execution directing the proper peace officer to deliver such possession. Title may be perfected and possession ordered in the same action.
Source: CivC 1877, §§ 1991 to 1993; CL 1887, §§ 4624 to 4626; RCivC 1903, §§ 2336 to 2338; RC 1919, §§ 2007 to 2009; SDC 1939 & Supp 1960, § 37.3701.
21-14-2. Order to permit entry for surveys in action involving real property--Liability for unnecessary injury to property.
The court in which an action is pending for the recovery of real property or for damages for an injury thereto, or a judge thereof, may, on motion, upon notice by either party, for good cause shown, grant an order allowing to such party the right to enter upon the property, and make survey and measurement thereof, and of any tunnels, shafts, or drifts thereon, for the purpose of the action, even though entry for such purpose has to be made through other lands belonging to parties to the action. The order must describe the property and a copy thereof must be served on the owner or occupant; and thereupon such party may enter upon the property, with necessary surveyors and assistants, and make such survey and measurements; but if any unnecessary injury be done to the property he is liable therefor.
Source: CCivP 1877, §§ 645, 646; CL 1887, §§ 5459, 5460; RCCivP 1903, §§ 685, 686; RC 1919, §§ 2861, 2862; SDC 1939 & Supp 1960, § 37.1520.
21-14-3. Action to recover real property not prejudiced by alienation.
An action for the recovery of real property against a person in possession cannot be prejudiced by any alienation made by such person, either before or after the commencement of the action.
Source: CCivP 1877, § 648; CL 1887, § 5462; RCCivP 1903, § 688; RC 1919, § 2864; SDC 1939 & Supp 1960, § 37.1510.
21-14-4. Plaintiff's right to recover real property terminated while action pending--Damages for withholding.
In an action for the recovery of real property, where the plaintiff shows a right to recovery at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover damages for withholding the property.
Source: CCivP 1877, § 640; CL 1887, § 5454; RCCivP 1903, § 680; RC 1919, § 2856; SDC 1939 & Supp 1960, § 37.1515.
21-14-5. Compensation for improvements to real property made by defendant claiming in good faith.
In an action for the recovery of real property, upon which permanent improvements have been made by a defendant or intervener, or those under whom he claims, holding under color of title adversely to claim of plaintiff, or another defendant or intervener, in good faith, the value of such improvements must be allowed as a counterclaim by such defendant or intervener.
Source: CCivP 1877, § 641; CL 1887, § 5455; RCCivP 1903, § 681; RC 1919, § 2857; SDC 1939, § 37.1516; SL 1949, ch 140, § 1.
21-14-6. Determination of title, removal of clouds and commissioner's conveyance on absence or refusal of defendant to convey real property.
In all actions arising under chapter 21-41, in actions brought for the satisfaction of record of mortgages and other liens upon real property, and in actions for the specific performance of contracts relating to real property, whenever the defendant is not found within the jurisdiction of the court and service of summons therein is made by publication or personally without the state, or whenever any defendant refuses or neglects to make a conveyance or cancel an encumbrance pursuant to the judgment of the court, the court may, by its judgment, determine and establish the title to the property, remove all clouds therefrom, or appoint a commissioner to convey the property on behalf of such defendant.
Source: SL 1889, ch 111; RCCivP 1903, § 691; RC 1919, § 2871; SDC 1939 & Supp 1960, § 37.1509.
21-15-1
Claim of immediate delivery permitted in action for possession of personal property--Time of claim.
21-15-2
Contents of plaintiff's affidavit.
21-15-3
Order to defendant to show cause against delivery of property to plaintiff--Procedure
in hearing.
21-15-4
Undertaking required of plaintiff--Contents--Waiver.
21-15-5
Cash in lieu of undertaking deposited with clerk or judge--Terms of deposit.
21-15-6
Seizure of property by sheriff--Safekeeping and delivery.
21-15-7
Seizure of property kept in building.
21-15-8
Papers served on defendant when property seized.
21-15-9
Defendant's exception to sufficiency of plaintiff's sureties--Failure to except as
waiver.
21-15-10
Justification by plaintiff's sureties--Responsibility of sheriff--Exceptions waive right
to retain property.
21-15-10.1
Notice of justification--Additional surety--Time and place of hearing.
21-15-10.2
Appearance and examination of sureties.
21-15-10.3
Allowance by judge--Effect.
21-15-10.4
Costs of justification.
21-15-11
Qualifications and justification of plaintiff's sureties.
21-15-11.1
Qualifications of bail.
21-15-12
Defendant's undertaking or deposit to retain possession--Terms.
21-15-13
Justification by defendant's sureties and delivery of property--Responsibility of
sheriff--Delivery to plaintiff on failure to justify.
21-15-14
Delivery of property to plaintiff if return not required by defendant.
21-15-15
Notice to sheriff of third-party claim to property--Indemnity required of plaintiff.
21-15-16
Sheriff's report of proceedings--Papers attached--Contempt and amercement or civil
action for failure or neglect.
21-15-1. Claim of immediate delivery permitted in action for possession of personal property--Time of claim.
The plaintiff, in an action to recover the possession of personal property may, at the time of issuing the summons or at any time before answer, claim the immediate delivery of such property as provided in this chapter.
Source: CCivP 1877, § 176; CL 1887, § 4972; RCCivP 1903, § 184; RC 1919, § 2411; SDC 1939 & Supp 1960, § 37.3801.
21-15-2. Contents of plaintiff's affidavit.
When an immediate delivery is claimed, an affidavit must be made by the plaintiff or by someone on his behalf, stating:
(1) That the plaintiff is the owner of the property claimed, particularly describing it, or is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts in respect to which shall be set forth;
(2) That the property is wrongfully detained by the defendant;
(3) The alleged cause of the detention thereof, according to his best knowledge, information, and belief;
(4) That the same has not been taken for a tax, assessment, or fine, pursuant to a statute, or seized under an execution or attachment against the property of the plaintiff, or, if so seized, that it is, by statute, exempt from such seizure;
(5) The actual value of the property.
Source: CCivP 1877, § 177; CL 1887, § 4973; RCCivP 1903, § 185; RC 1919, § 2412; Supreme Court Rule 594, 1939; SDC 1939 & Supp 1960, § 37.3802.
21-15-3. Order to defendant to show cause against delivery of property to plaintiff--Procedure in hearing.
Upon filing the summons and complaint, and the affidavit pursuant to § 21-15-2, the judge of the court having jurisdiction shall by order, require cause to be shown at a specified time and place, after reasonable notice to the defendant, why the plaintiff should not have delivery of the property claimed. Except as inconsistent with the provisions of this chapter, chapter 15-6 shall apply to the conduct of the hearing.
Source: CCivP 1877, § 178; CL 1887, § 4974; RCCivP 1903, § 186; RC 1919, § 2413; Supreme Court Rule 594, 1939; SDC 1939 & Supp 1960, § 37.3802; SL 1973, ch 145, § 1.
21-15-4. Undertaking required of plaintiff--Contents--Waiver.
Before possession of any property may be taken, there must be furnished a written undertaking with one or more sufficient sureties approved by the sheriff, or a cash deposit, in double the value as stated in the affidavit, securing return of the property to the defendant if return thereof be adjudged, and the payment to the defendant of any such sum as may, for any cause, be recovered against the plaintiff. The court may waive the undertaking if the ownership of the property is not in question and the plaintiff is or has been a tenant of the defendant.
Source: SDC 1939 & Supp 1960, § 37.3803; SL 1993, ch 170.
21-15-5. Cash in lieu of undertaking deposited with clerk or judge--Terms of deposit.
If cash is deposited it shall be with the clerk or a judge of the court having jurisdiction, and his receipt taken therefor and such deposit shall thereupon remain in the custody of the court until legal order of the court disposing of it, as security for all of the obligations of the party depositing it under this chapter, the same as if a written undertaking had been furnished specifically assuming said obligations.
Source: SDC 1939 & Supp 1960, § 37.3807.
21-15-6. Seizure of property by sheriff--Safekeeping and delivery.
Upon receipt of the affidavit, endorsement, undertaking, and order authorizing delivery specified in §§ 21-15-2 to 21-15-4, inclusive, the sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall keep it in a safe place and deliver it to the party entitled thereto upon receiving his lawful fees and necessary expenses for keeping the same.
Source: CCivP 1877, § 185; CL 1887, § 4981; RCCivP 1903, § 193; RC 1919, § 2420; SDC 1939 & Supp 1960, § 37.3804; SL 1973, ch 145, § 2.
21-15-7. Seizure of property kept in building.
If the property, or any part thereof, be concealed in a building or enclosure, the sheriff shall publicly demand its delivery. If it be not forthwith delivered, he shall cause the building or enclosure to be broken open, and take the property into his possession and if necessary he may call to his aid the power of his county.
Source: CCivP 1877, § 184; CL 1887, § 4980; RCCivP 1903, § 192; RC 1919, § 2419; SDC 1939 & Supp 1960, § 37.3804.
21-15-8. Papers served on defendant when property seized.
The sheriff shall at the time of taking any property serve on the defendant a copy of the affidavit, endorsement, and undertaking or receipt for cash bond, and notice of levy showing the property taken by delivering the same to the defendant personally, if he can be conveniently found, or to his agent from whose possession the property is taken or if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion.
Source: CCivP 1877, § 179; CL 1887, § 4975; RCCivP 1903, § 187; RC 1919, § 2414; SDC 1939 & Supp 1960, § 37.3804.
21-15-9. Defendant's exception to sufficiency of plaintiff's sureties--Failure to except as waiver.
The defendant may, within three days after the service of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he shall be deemed to have waived all objection to them.
Source: CCivP 1877, § 180; CL 1887, § 4976; RCCivP 1903, § 188; RC 1919, § 2415; SDC 1939 & Supp 1960, § 37.3807.
21-15-10. Justification by plaintiff's sureties--Responsibility of sheriff--Exceptions waive right to retain property.
When the defendant excepts, the sureties shall justify on notice as set out in §§ 21-15-10.1 to 21-15-10.4, inclusive. The sheriff shall be responsible for the sufficiency of the sureties, until the objection to them is either waived as above provided, or until they shall justify, or new sureties shall be substituted and justify. If the defendant except to the sureties, he cannot retain the property, as provided in § 21-15-12.
Source: CCivP 1877, § 180; CL 1887, § 4976; RCCivP 1903, § 188; RC 1919, § 2415; SDC 1939 & Supp 1960, § 37.3807; SL 1984, ch 159, § 1.
21-15-10.1. Notice of justification--Additional surety--Time and place of hearing.
On receipt of notice the sheriff or defendant shall, within ten days thereafter, give to the plaintiff by whom the surety is subscribed, or to plaintiff's attorney, notice of the justification of surety. In case additional surety is given there shall be a new undertaking in the form prescribed. The notice shall specify a time not less than five nor more than ten days after service thereof and a place within the county where the action is pending, where hearing on the justification will be held, and that it will be held before the judge of the court, naming him, within such county.
Source: SL 1984, ch 159, § 2.
21-15-10.2. Appearance and examination of sureties.
For the purpose of justification, each of the sureties shall appear before the judge at the time and place mentioned in the notice, and may be examined on oath on the part of the defendant or the sheriff, or both, touching his sufficiency, in such manner as the judge, in his discretion, may think proper.
Source: SL 1984, ch 159, § 3.
21-15-10.3. Allowance by judge--Effect.
If the judge finds the surety sufficient, he shall endorse his allowance thereon, and cause it to be filed with the clerk; and the sheriff thereupon shall be exonerated from liability.
Source: SL 1984, ch 159, § 4.
21-15-10.4. Costs of justification.
The costs of the justification shall be paid by the plaintiff if the same is found not sufficient, but if sufficient, then the defendant shall pay the costs of the justification. The costs of such justification shall be taxed by the court as other costs are taxed.
Source: SL 1984, ch 159, § 5.
21-15-11. Qualifications and justification of plaintiff's sureties.
The qualifications of sureties and their justification shall be as prescribed in § 21-15-11.1, except that one personal surety, or a surety company authorized to do business in this state, or a cash deposit, shall be sufficient.
Source: CCivP 1877, § 183; CL 1887, § 4979; RCCivP 1903, § 191; RC 1919, § 2418; SDC 1939 & Supp 1960, § 37.3807; SL 1984, ch 159, § 6.
21-15-11.1. Qualifications of bail.
The qualifications of bail are as follows:
(1) Each of them shall be a resident and freeholder within the State of South Dakota;
(2) They shall each be worth double the amount of the undertaking, exclusive of property exempt from execution; but the court may allow more than one surety to justify severally in amounts less than that of the undertaking, if the whole justification is equivalent to that of two sufficient sureties.
Source: SL 1984, ch 159, § 7.
21-15-12. Defendant's undertaking or deposit to retain possession--Terms.
At any time before delivery of the property to the plaintiff, the defendant may, if he does not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, or receipt for cash deposit, as in this chapter provided, in amount and sufficiency as required on the undertaking of the plaintiff for the immediate delivery, and securing the plaintiff for delivery of the property if such delivery be adjudged and for the payment to the plaintiff of such sum as may for any cause be recovered against the defendant.
Source: CCivP 1877, § 181; CL 1887, § 4977; RCCivP 1903, § 189; RC 1919, § 2416; SDC 1939 & Supp 1960, § 37.3806.
21-15-13. Justification by defendant's sureties and delivery of property--Responsibility of sheriff--Delivery to plaintiff on failure to justify.
The defendant's sureties, upon a notice to the plaintiff of not less than two nor more than six days, shall justify in the same manner as upon bail on arrest; upon such justification the sheriff shall deliver the property to the defendant. The sheriff shall be responsible for the sufficiency of the defendant's sureties until they justify, or until justification is completed or expressly waived, and may retain the property until that time; but if they, or others in their place, fail to justify at the time and place appointed, he shall deliver the property to the plaintiff.
Source: CCivP 1877, § 182; CL 1887, § 4978; RCCivP 1903, § 190; RC 1919, § 2417; SDC 1939 & Supp 1960, § 37.3807.
21-15-14. Delivery of property to plaintiff if return not required by defendant.
If a return of the property be not required pursuant to § 21-15-12 within three days after the taking and service of papers on defendant, it shall be delivered to the plaintiff unless claimed in the meantime by a third person in the manner provided by this chapter.
Source: CCivP 1877, § 181; CL 1887, § 4977; RCCivP 1903, § 189; RC 1919, § 2416; SDC 1939 & Supp 1960, § 37.3806.
21-15-15. Notice to sheriff of third-party claim to property--Indemnity required of plaintiff.
If the property taken be claimed by any other person than the defendant or his agent, and such person shall make affidavit of his title thereto and right to the possession thereof, stating the grounds of such right and title, and serve the same upon the sheriff, the sheriff shall not be bound to keep the property or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, shall indemnify the sheriff against such claim by an undertaking or deposit, in amount and sufficiency as required in the original affidavit for the delivery. No claim to such property by any other person than the defendant or his agent shall be valid against the sheriff, unless made as aforesaid; and notwithstanding such claim, when so made, he may retain the property a reasonable time to demand such indemnity.
Source: CCivP 1877, § 186; CL 1887, § 4982; RCCivP 1903, § 194; RC 1919, § 2421; SDC 1939 & Supp 1960, § 37.3805.
21-15-16. Sheriff's report of proceedings--Papers attached--Contempt and amercement or civil action for failure or neglect.
Within twenty days after taking the property, the sheriff shall make a verified report of his proceedings in taking and disposing of it, and file the same together with the original affidavit, order authorizing delivery, undertaking, or receipt, and a copy of his notice of levy, with the clerk of the court in which the action is pending.
The failure or neglect of the sheriff to make such verified report of his proceedings and file the same in the office of the clerk with the other documents above specified in the manner and within the time above required shall not however void his proceedings under the affidavit and endorsement but shall render him liable to punishment by the court as for contempt and liable by amercement or civil action to any person thereby injured in like manner as is provided with reference to writs, warrants and executions by § 15-18-44.
Source: CCivP 1877, § 187; CL 1887, § 4983; RCCivP 1903, § 195; RC 1919, § 2422; Supreme Court Rule 595, 1939; SDC 1939, § 37.3808; SL 1951, ch 196; SL 1973, ch 145, § 3.
CHAPTER 21-16
FORCIBLE ENTRY AND DETAINER
21-16-1 Grounds for maintenance of action.
21-16-2 Repealed.
21-16-3 Jurisdiction of courts.
21-16-4 Joinder of actions.
21-16-5 Survival of cause despite death of plaintiff.
21-16-6 Verified Complaint--Service with Summons--Procedure.
21-16-6.1 Service by publication--Exemption.
21-16-7 Time for appearance by defendant.
21-16-8 Time action brought on for trial--Special venire in jury cases.
21-16-9 Certification to circuit court of title and boundary questions raised in magistrate court.
21-16-10 Judgment for plaintiff.
21-16-11 Attorney fees taxed as costs.
21-16-12 Time of serving execution.
21-16-1. Grounds for maintenance of action.
An action of forcible entry and detainer, or of detainer only, is maintainable:
(1) If a party has by force, intimidation, fraud, or stealth, entered upon the prior actual possession of real property or the occupied structure of another, and detains the same;
(2) If a party, after entering peaceably upon real property or an occupied structure, turns out by force, threats, or menacing conduct, the party in possession;
(3) If a party by force or by menaces and threats of violence unlawfully holds and keeps the possession of any real property, or occupied structure, whether the same was acquired peaceably or otherwise;
(4) If a lessee in person or by subtenants holds over after the termination of his lease or expiration of his term, or fails to pay his rent for three days after the same shall be due;
(5) If a party continues in possession after a sale of the real property or occupied structure under mortgage, execution, order, or any judicial process, after the expiration of the time fixed by law for redemption, and after the execution and delivery of a deed or instrument of ownership;
(6) If a party continues in possession after a judgment in partition, or after a sale under an order or decree of a circuit court;
(7) If a lessee commits waste upon the leased premises, or does or fails to perform any act which, under the terms of the lease operates to terminate the same.
The term, occupied structure, used in this chapter is defined in subdivision 22-1-2(28).
Source: SDC 1939 & Supp 1960, § 37.3902; SL 1992, ch 156, § 1.
21-16-2. Repealed.
Source: JustC 1877, § 35; CL 1887, § 6074; RJustC 1903, § 45; RC 1919, § 2172; SDC 1939 & Supp 1960, § 37.3903; SL 1986, ch 173; SL 2024, ch 75, § 1.
21-16-3. Jurisdiction of courts.
Any circuit court or magistrate court presided over by a magistrate judge has jurisdiction in any case of forcible entry and detainer, or of detainer only, of real property or an occupied structure within its county.
Source: SDC 1939 & Supp 1960, § 37.3901; SL 1974, ch 153, § 38; SL 1992, ch 156, § 2.
21-16-4. Joinder of actions.
An action under the provisions of this chapter cannot be brought in connection with any other except for rents and profits or damages but the plaintiff may bring separate actions for the same if he so desire.
Source: SL 1881, ch 87, § 2; CL 1887, § 6080; RJustC 1903, § 51; RC 1919, § 2178; Supreme Court Rule 596, 1939; SDC 1939 & Supp 1960, § 37.3906.
21-16-5. Survival of cause despite death of plaintiff.
The legal representative of a person who might have been plaintiff, if alive, may bring an action under this chapter after his death.
Source: JustC 1877, § 36; CL 1887, § 6075; RJustC 1903, § 46; RC 1919, § 2173; SDC 1939 & Supp 1960, § 37.3904.
21-16-6. Verified Complaint--Service with Summons--Procedure.
The complaint shall be in writing and verified by the plaintiff or the plaintiff's agent or signed by the plaintiff's attorney, and served with a summons. A sheriff, any person legally authorized to effect service under § 15-6-4(c), or constable of the county shall attempt to serve a lessee, subtenant, or party in possession with a minimum of two service attempts. Each attempt shall be at least one week apart and both attempts shall be within thirty days.
On the second service attempt, the summons may be posted in a conspicuous place on the property and delivered to a person there residing, if such person can be found, and also sent by first class mail addressed to the tenant at the place where the property is situated.
Source: JustC 1877, § 37; CL 1887, § 6076; RJustC 1903, § 47; RC 1919, § 2174; SDC 1939 & Supp 1960, § 37.3905; SL 2020, ch 74, § 1.
21-16-6.1 . Service by publication--Exemption.
On the same day as the first attempted service under § 21-16-6, the plaintiff bringing an action of forcible entry and detainer, or of detainer only, under § 21-16-1 may cause the summons to be published in a legal newspaper printed in the county where the subject property is located or in an adjacent county in accordance with § 17-2-10 . A plaintiff who causes a summons to be published under this section must cause the publication only once.
Section 15-9-17 does not apply to any publication required under this section.
Source: SL 2020, ch 74, § 2.
21-16-7. Time for appearance by defendant.
The time for appearance and pleading shall be five days from the time of service on the defendant or thirty days after the publication of service under § 21-16-6.1, whichever occurs sooner. No adjournment or continuance shall be made for more than fourteen days, unless the defendant applying therefor shall give an undertaking to the plaintiff with good and sufficient surety to be approved by the court, conditioned for the payment of the rent that may accrue, together with costs if judgment be rendered against the defendant.
Source: JustC 1877, § 38; CL 1887, § 6077; RJustC 1903, § 48; RC 1919, § 2175; Supreme Court Rule 597, 1939; SDC 1939, § 37.3907; Court Rule adopted September 29, 1945; SL 2020, ch 74, § 3; SL 2024, ch 75, § 2.
21-16-8. Time action brought on for trial--Special venire in jury cases.
An action under this chapter may be brought on for trial upon two days' notice after issue is joined. If a jury trial be demanded and no jury is in attendance on the day the action is noticed for trial, the court shall cause a special venire to issue as in cases where extra jurors are required, and proceed to impanel a jury and try the action as in other civil cases.
Source: SL 1907, ch 191, § 20; SL 1909, ch 176, § 7; SL 1911, ch 196, § 6; SL 1913, ch 278, § 4; RC 1919, § 2246; Supreme Court Rule 597, 1939; SDC 1939, § 37.3907; Court Rule Adopted September 29, 1945.
21-16-9. Certification to circuit court of title and boundary questions raised in magistrate court.
If the title to or boundary of the real property or the title to an occupied structure in any wise comes in question, in magistrate court, the case shall be certified to the circuit court as provided by rule of the Supreme Court.
Source: 1939 & Supp 1960, § 37.3905; SL 1974, ch 153, § 39; SL 1992, ch 156, § 3.
21-16-10. Judgment for plaintiff.
If the finding of the court or the verdict of the jury be in favor of the plaintiff, the judgment shall be for the delivery of possession to the plaintiff, and for rents and profits or damages, including those authorized by § 21-3-8, where the same are claimed in the complaint, and for costs.
Source: SL 1881, ch 87, § 1; CL 1887, § 6078; RJustC 1903, § 49; RC 1919, § 2176; SDC 1939 & Supp 1960, § 37.3908; SL 2020, ch 74, § 4.
21-16-11. Attorney fees taxed as costs.
In any case of forcible entry and detainer, or detainer only, the court may tax as a part of the costs in the case, to the prevailing party, reasonable attorney fees, whether a trial is had or not, if prevailing party is represented by a licensed attorney.
Source: SL 1883, ch 51, § 1; CL 1887, § 6079; RJustC 1903, § 50; RC 1919, § 2177; SDC 1939 & Supp 1960, § 37.3909; SL 2000, ch 95, § 1.
21-16-12. Time of serving execution.
No execution for possession can be served except in the daytime.
Source: SL 1881, ch 87, § 2; CL 1887, § 6080; RJustC 1903, § 51; RC 1919, § 2178; SDC 1939 & Supp 1960, § 37.3908.
21-17A-1
Attachment by creditor.
21-17A-2
Issuance and direction of writ--Contents.
21-17A-3
Affidavit required for execution in debt action--Contents.
21-17A-4
Affidavit required for execution in tort action--Contents.
21-17A-5
Action and writ on demand not due--Grounds--Affidavit--Bond--Damages and costs
for defendant.
21-17A-6
Amendment of affidavit.
21-17A-7
Bond required of plaintiff--Amount--Terms--Affidavit of surety--Exemption of state
and subdivisions.
21-17A-8
Additional security--Application by defendant--Joint sureties.
21-17A-9
Return--Papers filed--Time allowed.
21-17A-10
Service on defendant--Appraisal--Inventory--Lien created--Multiple writs executed
on same property.
21-17A-11
Seizure of property.
21-17A-12
Real property attached by filing.
21-17A-13
Property subject to attachment--Personal property.
21-17A-14
Indemnification--Officer requiring.
21-17A-15
Sale of attached property--Grounds--Proceeds held in lieu of property.
21-17A-16
Keeping of property by officer--Collections--Legal proceedings.
21-17A-17
Defendant's bond for release from attachment--Justification of sureties.
21-17A-18
Copy of defendant's bond to plaintiff--Objection to sureties--Responsibility of
officer.
21-17A-19
Modification of writ--Notice of motion--Combining motions.
21-17A-20
Motion to quash writ and release property--Service of notice of motion.
21-17A-21
Contents of notice of motion--Affidavit--Grounds.
21-17A-22
Hearing on motion--Order of court.
21-17A-23
Basis of determination--Additional evidence--Continuance.
21-17A-24
Priority of hearing on motion to quash.
21-17A-25
Findings and order of court on hearing--Costs taxed--Damages assessed at trial.
21-17A-26
Judgment for damages to defendant.
21-17A-27
Delivery of property on judgment for defendant--Action on plaintiff's bond.
21-17A-28
Satisfaction of judgment for plaintiff--Delivery of remaining property.
21-17A-29
Plaintiff prosecuting actions officer authorized to bring--Indemnification of officer.
21-17A-30
Death of defendant--Satisfaction of judgment for plaintiff.
21-17A-31
Third party's property--Application for release.
21-17A-32
Injunction not precluded.
21-17A-1. Attachment by creditor.
A creditor may attach the property of his debtor, in the cases, upon the conditions, and in the manner prescribed in this chapter.
Source: SL 1983, ch 168, § 1.
21-17A-2. Issuance and direction of writ--Contents.
A writ of attachment shall be issued on the request of a plaintiff any time after a summons and a complaint is filed but before final judgment. It shall be directed to the sheriff or constable of a county in which property of the defendant is supposed to be, and shall require him to attach all the property of the defendant within his county or so much thereof as may be sufficient to satisfy the plaintiff's demand, together with costs and expenses. It shall be in the name of the court and be sealed with its seal and signed by its judge.
Source: SL 1983, ch 168, § 2.
21-17A-3. Affidavit required for execution in debt action--Contents.
Before a writ of attachment for a debt may be executed, the plaintiff or someone on his behalf shall make and attach thereto an affidavit, stating that the defendant is indebted to the plaintiff in a sum exceeding fifty dollars, specifying the amount above all setoffs, and that the debt is due upon express or implied contract or upon a judgment, and that the affiant knows or has good reason to believe any of the following:
(1) The defendant is absent from this state, or is concealed here so that summons cannot be served on him;
(2) The defendant has disposed of or concealed or is about to dispose of or conceal his property or some part thereof with intent to defraud his creditors;
(3) The defendant has removed or is about to remove property from this state with intent to defraud his creditors;
(4) The defendant fraudulently incurred the obligation respecting which the action is brought;
(5) The defendant is not a resident of this state;
(6) The defendant is a foreign corporation, or, if domestic, that no officer or agent thereof on whom to serve the summons exists or resides in this state or can be found;
(7) The action is against a defendant as principal on an official bond to recover money due the state or to some political subdivision thereof, or that the action is against the defendant as principal upon a bond or other instrument given as evidence of debt for or to secure the payment of money embezzled or misappropriated by the defendant as an officer of the state or of a political subdivision thereof;
(8) The action is against a defendant to recover purchase money for personal property sold to the defendant, in which case the property shall be specifically described, if one of the conditions under subdivision (1), (5), or (9) of this section and one of the conditions under subdivision (2) or (3) of this section is also alleged;
(9) The defendant is about to remove his residence from the county where he resides with the intention of permanently changing it and fails or neglects on demand to give security for the debt upon which the action is commenced;
(10) The action is against the owner of any motor vehicle for damages alleged to have been caused by the negligence of such owner or his duly authorized agent, the motor vehicle alleged to have been driven, occupied or owned by a negligent driver or owner thereof, at the time of such accident, may be attached, if one of the conditions under subdivision (1) or (5) of this section and one of the conditions under subdivision (2) or (3) of this section is also alleged.
Source: SL 1983, ch 168, § 3.
21-17A-4. Affidavit required for execution in tort action--Contents.
Before a writ of attachment may be executed in a tort action, the plaintiff or someone on his behalf shall make and attach thereto an affidavit, stating that a cause of action in tort exists in favor of the plaintiff and against the defendant, that the damages sustained exceed fifty dollars specifying the amount claimed and either:
(1) The defendant is not a resident of this state; or that his residence is unknown and cannot with due diligence be ascertained; or
(2) The defendant is a foreign corporation.
Source: SL 1983, ch 168, § 4.
21-17A-5. Action and writ on demand not due--Grounds--Affidavit--Bond--Damages and costs for defendant.
An action may be maintained and a writ of attachment issued on a demand not yet due in any case mentioned in § 21-17A-3 or 21-17A-4, except the cases mentioned in subdivision 21-17A-3(5), (6), or (7) and the same proceedings in the action shall be had and the same affidavit shall be required as in actions upon matured demands except that the affidavit shall state that the debt is to become due. The bond specified in § 21-17A-7 shall be for three times the amount demanded. In case an attachment is issued before the maturity of the debt and a defense to such attachment is sustained the court shall render a judgment for damages and costs against the plaintiff.
Source: SL 1983, ch 168, § 5.
21-17A-6. Amendment of affidavit.
The affidavit required by §§ 21-17A-3 to 21-17A-5, inclusive, may be amended any time before the trial by the substitution of a new affidavit containing allegations of facts existing at the time of making the former affidavit.
Source: SL 1983, ch 168, § 6.
21-17A-7. Bond required of plaintiff--Amount--Terms--Affidavit of surety--Exemption of state and subdivisions.
Before a writ of attachment may be executed, a bond on the part of the plaintiff in the sum of at least five hundred dollars executed by sufficient surety shall be delivered to the sheriff or constable, to the effect that if the defendant recover judgment the plaintiff shall pay all costs that may be awarded to the defendant and all damages which he may sustain by reason of the attachment. The affidavit of the surety annexed to the bond shall state that he is a resident of this state and worth double the sum specified in the bond in property above his debts and exclusive of property exempt from execution. No bond is necessary if the state or a political subdivision is the plaintiff.
Source: SL 1983, ch 168, § 7.
21-17A-8. Additional security--Application by defendant--Joint sureties.
If a defendant is not satisfied with the amount specified in the bond or with the surety he may, upon five days' notice to the plaintiff, apply to a judge for additional security. The judge may require the plaintiff to give and file another bond, to be approved by him, in such sum as he may deem proper, not exceeding the appraised value of the property attached. The surety shall justify as provided in § 21-17A-7, but if there is more than one surety they may be accepted if they are jointly responsible for the required sum.
Source: SL 1983, ch 168, § 8.
21-17A-9. Return--Papers filed--Time allowed.
The sheriff or constable executing the writ shall return thereon all his proceedings and shall file the writ, affidavit and bond with the clerk of the court within ten days from receipt of the bond.
Source: SL 1983, ch 168, § 9.
21-17A-10. Service on defendant--Appraisal--Inventory--Lien created--Multiple writs executed on same property.
The sheriff or constable shall without delay serve copies of the writ, affidavit and bond on the defendant in the same manner as the summons. In the case of a nonresident or a foreign corporation, the sheriff or constable shall serve such copies on any agent of the defendant in the county, if any are known to him. He shall cause all real and personal property or so much thereof as shall satisfy the writ to be appraised by two disinterested residents of the county, who shall be first sworn by him to make a true appraisal. The appraisal shall be signed by them and the appraisal and inventory shall be returned with the writ. Copies of the appraisal and inventory shall be served on the defendant. Service of the writ, affidavit and bond in the foregoing manner shall create a lien in favor of the attaching party, perfected without further action, for the amount of the plaintiff's or attaching party's demand, together with costs and expenses.
If two or more writs against the same defendant are executed on the same property, an inventory and appraisal shall be made for only one of the actions, and the sheriff or constable shall endorse on the copy served on the defendant in the other action a notice that the property attached is the property attached in the action in which the inventory and appraisal are made, giving the title of such action; and such officer shall state in his return the fact of such endorsement.
Source: SL 1983, ch 168, § 10.
21-17A-11. Seizure of property.
At the time of service of a writ of attachment, the sheriff or constable shall seize, in his county, so much of the property of the defendant as will satisfy the demand of the plaintiff with costs and expenses.
Source: SL 1983, ch 168, § 11.
21-17A-12. Real property attached by filing.
To attach real estate, the sheriff or constable shall file, in the office of the register of deeds, a copy of the writ with his certificate that by virtue of the original writ he has attached all the interest of the named defendant in such real estate, describing the property.
Source: SL 1983, ch 168, § 12.
21-17A-13. Property subject to attachment--Personal property.
All the property of the defendant, not exempt from execution, may be attached. Personal property shall be attached as upon an execution and the provisions respecting the levy of an execution thereon are applicable to an attachment.
Source: SL 1983, ch 168, § 13.
21-17A-14. Indemnification--Officer requiring.
If there is reasonable doubt as to the ownership of property or as to its liability to be attached, the sheriff or constable may require sufficient security from the plaintiff to indemnify him for attaching such property.
Source: SL 1983, ch 168, § 14.
21-17A-15. Sale of attached property--Grounds--Proceeds held in lieu of property.
If any property taken on a writ of attachment is likely to depreciate in value before the end of the action or if the keeping thereof could cause much loss or expense, the court or a judge may order it sold in such manner as the best interests of the parties demand, and the money realized shall be held by the sheriff or constable in lieu of the property sold.
Source: SL 1983, ch 168, § 15.
21-17A-16. Keeping of property by officer--Collections--Legal proceedings.
The sheriff or constable shall keep the property seized by him and the proceeds of such as shall have been sold to answer any judgment which may be recovered in such action; and shall, subject to the direction of the court or judge, collect and receive into his possession all the debts, credits and effects of the defendant. The sheriff or constable may also take such legal proceedings, either in his own name or in the name of the defendant, as may be necessary for that purpose and discontinue the same at such times and on such terms as the court or judge may direct.
Source: SL 1983, ch 168, § 16.
21-17A-17. Defendant's bond for release from attachment--Justification of sureties.
The defendant may, at any time before judgment, deliver to the sheriff or constable who attached his property a corporate surety bond or a bond executed by two sureties, to the effect that they shall, on demand, pay to the plaintiff the amount of the judgment, with all costs, that may be recovered against the defendant in the action, not exceeding the sum specified in the bond with interest. The bond shall be in the amount alleged by the plaintiff to be due. The sureties shall justify as provided in § 21-17A-7, and may be accepted if they are jointly responsible for the required sum.
Source: SL 1983, ch 168, § 17.
21-17A-18. Copy of defendant's bond to plaintiff--Objection to sureties--Responsibility of officer.
The sheriff or constable shall without delay give the plaintiff a copy of the bond received pursuant to § 21-17A-17 with notice of the time when the same was delivered to him. The plaintiff shall, within three days thereafter, give notice to the sheriff or constable that he objects to the sureties or he waives all objections to them. If the plaintiff objects, the sureties shall justify as provided in § 21-17A-7. The sheriff or constable is responsible for the sufficiency of the sureties and may retain possession of the attached property until they justify, or until the objection is waived. Thereafter, the sheriff or constable shall deliver the property attached to the defendant. If real estate is attached, the sheriff or constable shall file a certificate of the discharge thereof in the office of the register of deeds. If judgment is for the plaintiff, all his costs and disbursements on the attachment shall be included in the judgment.
Source: SL 1983, ch 168, § 18.
21-17A-19. Modification of writ--Notice of motion--Combining motions.
The court may, at any time before the trial of the action or a release of the property under § 21-17A-18, modify the writ of attachment for irregularity or other sufficient cause, on three days' notice of motion. The motion therefor may be combined with a motion to increase the plaintiff's security under § 21-17A-8.
Source: SL 1983, ch 168, § 19.
21-17A-20. Motion to quash writ and release property--Service of notice of motion.
A defendant whose property has been attached pursuant to a writ issued under this chapter may, on three days' notice of motion, apply for an order that the writ of attachment be quashed, and any property levied on pursuant to the writ be released. The application shall be made by filing with the court and serving on the plaintiff a notice of motion.
Source: SL 1983, ch 168, § 20.
21-17A-21. Contents of notice of motion--Affidavit--Grounds.
The notice of motion shall state the grounds on which the motion is based and shall be accompanied by an affidavit supporting any factual issues raised and points and authorities supporting any legal issues raised. It is not grounds to set aside an order that the plaintiff would not have suffered great or irreparable injury if issuance of the writ had been delayed until the matter could have been heard on notice.
Source: SL 1983, ch 168, § 21.
21-17A-22. Hearing on motion--Order of court.
At the hearing on the motion, the court shall determine whether the plaintiff is entitled to the writ of attachment. If the court finds that the plaintiff is not entitled to the writ, it shall order the writ quashed, and any property levied on pursuant to the writ released.
Source: SL 1983, ch 168, § 22.
21-17A-23. Basis of determination--Additional evidence--Continuance.
The court's determinations shall be made upon the basis of the pleadings and other papers in the record; but upon good cause shown, the court may receive and consider at the hearing additional evidence, oral or documentary, and additional points and authorities, or it may continue the hearing for the production of such additional evidence or points and authorities.
Source: SL 1983, ch 168, § 23.
21-17A-24. Priority of hearing on motion to quash.
The hearing provided for in § 21-17A-22 shall take precedence over all other civil matters on the calendar except older matters of the same character.
Source: SL 1983, ch 168, § 24.
21-17A-25. Findings and order of court on hearing--Costs taxed--Damages assessed at trial.
If the court finds for the defendant on a motion pursuant to § 21-17A-20, the judge presiding shall tax the defendant's costs for the hearing, and an order shall be entered dismissing the writ or that the property attached be delivered to the defendant; and the jury or the court shall, on the trial of the action or thereafter, assess the damages sustained by the defendant by reason of the taking and detention or sale of the property attached or by reason of any injury thereto. The same, together with the costs so taxed, shall be a setoff to the plaintiff's demand, and if in excess of it, or the plaintiff fails to recover, the defendant shall have judgment for the amount due. If the court on the hearing held pursuant to § 21-17A-22 finds for the plaintiff, the judge shall tax the plaintiff's costs for the trial, and the amount so taxed shall, if he recovers, be taxed by the clerk as disbursement in the action. If the defendant or his assignee recovers judgment in the action, the costs and the judgment shall be offset.
Source: SL 1983, ch 168, § 25.
21-17A-26. Judgment for damages to defendant.
If the defendant prevails in the action or if the action is discontinued, he shall have judgment for the damages sustained by him for any damages to his property by reason of the taking and detention or sale.
Source: SL 1983, ch 168, § 26.
21-17A-27. Delivery of property on judgment for defendant--Action on plaintiff's bond.
If the defendant recovers judgment, all the money or property held by any writ of attachment shall be delivered to him, subject to the plaintiff's rights on appeal, and he may maintain an action on the plaintiff's bond for the assessed damages sustained by reason of the writ of attachment. Upon the entry of final judgment in favor of the defendant or on satisfaction of a plaintiff's judgment, if real estate was attached, the fact of such judgment or satisfaction shall be recorded by the prevailing party with the register of deeds in any county in which attached lands are situated.
Source: SL 1983, ch 168, § 27; SL 1987, ch 162.
21-17A-28. Satisfaction of judgment for plaintiff--Delivery of remaining property.
If a plaintiff recovers judgment in the action, the sheriff or constable shall satisfy the same out of the property attached, if sufficient therefor:
(1) By paying all money attached or received on sales of property, or on any debts or credits, or so much thereof as shall be necessary to the plaintiff;
(2) By selling, under such execution as may be issued on such judgment, so much of the attached property, real or personal, as is necessary to satisfy the unpaid balance, according to the provisions regulating sales upon execution, except as provided in subdivision (4) of this section;
(3) If any of the attached property belonging to the defendant is not in the sheriff's or constable's hands, without having been sold or converted into money, by repossessing the same, and for that purpose, the sheriff or constable has the same authority which he had to seize the same under the writ of attachment. Any person who intentionally conceals or withholds such property from the sheriff or constable is liable to double damages at the suit of the party injured;
(4) Until the judgment against the defendant has been paid, the sheriff or constable shall collect the evidences of debt that may have been seized or attached by virtue of the writ of attachment, and prosecute any bond he may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment and costs. When the judgment and all costs of the proceedings have been paid, the sheriff or constable, upon reasonable demand, shall deliver the residue of the property attached, or the proceeds thereof, to the defendant.
Source: SL 1983, ch 168, § 28.
21-17A-29. Plaintiff prosecuting actions officer authorized to bring--Indemnification of officer.
The actions authorized by this chapter to be brought by a sheriff or constable may be prosecuted by the plaintiff or under his direction, upon the delivery by him to the sheriff or constable of an undertaking, with two sufficient sureties, to the effect that the plaintiff shall indemnify him for all damages, costs and expenses thereon not exceeding five hundred dollars in any one action. The sureties shall, if required by the sheriff or constable, justify by making an affidavit that each is worth double the amount of the penalty named in the undertaking over and above all debts and exemptions.
Source: SL 1983, ch 168, § 29.
21-17A-30. Death of defendant--Satisfaction of judgment for plaintiff.
If a defendant whose property is attached dies and the judgment is in favor of the plaintiff, the property attached shall be applied to the payment of the judgment and execution may be issued on the judgment and satisfied out of the attached property in the same manner as if the defendant were living.
Source: SL 1983, ch 168, § 30.
21-17A-31. Third party's property--Application for release.
Any person not a party to the action, whose property is attached, may, at any time, either before or after judgment, be made a party on his application for the purpose of removing or discharging the attachment. The court may grant such summary relief as shall be just, and may in proper cases try appropriate issues by jury.
Source: SL 1983, ch 168, § 31.
21-17A-32. Injunction not precluded.
Nothing in this chapter precludes the granting of relief pursuant to chapter 21-8.
Source: SL 1983, ch 168, § 32.
21-18-1
Actions or small claims proceedings in which garnishment available--Persons and
agencies subject to garnishment.
21-18-2
Plaintiff and defendant defined.
21-18-2.1
Earnings subject to garnishment.
21-18-3
Plaintiff's affidavit for garnishment--Contents.
21-18-3.1
Garnishment prohibited before judgment.
21-18-4
Affidavit covering more than one garnishee--Joint and several proceedings.
21-18-5
Repealed.
21-18-6
Garnishee summons annexed to affidavit--Form.
21-18-7
Service of summons, affidavit, and garnishment disclosure on garnishee.
21-18-8
Service of summons, affidavit, and garnishment disclosure when state is garnishee.
21-18-9
Fee paid to garnishee for expense of garnishment disclosure.
21-18-10
Service of garnishee summons and affidavit on defendant.
21-18-11
Time and manner of service of summons, affidavit, and garnishment disclosure--Return--Payment or retention of property by garnishee.
21-18-12
Liability of garnishee to plaintiff after service of summons.
21-18-13
Property held under void title included in garnishee's liability.
21-18-14
Repealed.
21-18-14.1
Continuing lien on wages--Caption of garnishee summons--Disclosure forms.
21-18-14.2
Repealed.
21-18-15
Judgment not rendered on garnishee's liability on negotiable instrument.
21-18-16
Judgment not rendered on foreign corporation's liability paid by negotiable
instrument.
21-18-17
Judgment not rendered on carrier's liability for property in interstate commerce.
21-18-18
Judgment not rendered against officer for property collected on legal process.
21-18-19
Judgment not rendered on money accountable by public officer.
21-18-20 to 21-18-22. Repealed.
21-18-23
Partial release of garnished funds on application by defendant.
21-18-24
Subsequent proceedings against additional or discharged garnishees--Summons and
trial in other counties.
21-18-25
Actions by principal defendant against garnishee prohibited during garnishment--Stay
of pending proceedings.
21-18-26
Garnishee's affidavit denying liability--Form.
21-18-27
Garnishee's garnishment disclosure liability--Time of filing--Contents.
21-18-27.1
Service of garnishment disclosure form on garnishee--Contents of form.
21-18-28
Disclosure of liability when state is garnishee.
21-18-29
Disclosure by garnishee not made on information and belief--State excepted.
21-18-30
Garnishee's answer conclusive unless issue taken--Trial of issues.
21-18-31
Motion for order on answer of garnishee and defendant--Affidavit.
21-18-32
Payment to officer or clerk by garnishee--Discharge.
21-18-33
Retention of property disclosed by garnishee until expiration of garnishment, levy,
release, or court order--Return of property to defendant.
21-18-34
Payment to clerk by state as garnishee--Exoneration of state.
21-18-35
Order to interplead adverse claimant disclosed by garnishee--Payment by garnishee
and discharge--Service of notice on claimant.
21-18-36
Answer or defense by adverse claimant--Judgment on default.
21-18-37
Answer by other parties to affirmative claim set up by adverse claimant.
21-18-1. Actions or small claims proceedings in which garnishment available--Persons and agencies subject to garnishment.
In any action or small claims proceeding to recover damages founded upon contract, express or implied, or pursuant to judgment or decree, any creditor is entitled to proceed by garnishment in any court having jurisdiction of the subject of the action, against any person, as defined in § 15-7-1, including the state and any municipal or public corporation, and including any corporation organized or authorized to be organized by or under the laws of any state or of the United States, which has the power to sue or be sued who shall be indebted to or have any property, real or personal, in its possession or under its control belonging to such creditor's debtor, in the cases, upon the conditions, and in the manner prescribed in this chapter.
Source: SDC 1939, § 37.2801; SL 1939, ch 143; SL 1990, ch 157, § 1; SL 2001, ch 107, § 1.
21-18-2. Plaintiff and defendant defined.
The term, plaintiff, is used in this chapter to include every judgment creditor, and the term, defendant, every judgment debtor.
Source: SL 1909, ch 156, § 1; RC 1919, § 2453; SL 1925, ch 182, § 1; SDC 1939, § 37.2801; SL 1939, ch 143.
21-18-2.1. Earnings subject to garnishment.
The term, earnings, as used in this chapter means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus, or otherwise, and includes periodic payments.
Source: SL 1972, ch 133, § 1; SL 2016, ch 116, § 1.
21-18-3. Plaintiff's affidavit for garnishment--Contents.
In any action where garnishment is permitted, the plaintiff, or some person on the plaintiff's behalf, may make an affidavit stating that the plaintiff believes that a named person is indebted to, or has property, real or personal, in the person's possession or under the person's control belonging to the defendant, or either or any of the defendants in the action, naming him, and that such defendant has no property in this state other than property subject to garnishment under this chapter sufficient to satisfy the plaintiff's demand, and that the indebtedness or property mentioned in such affidavit is, to the best of the knowledge and belief of the person making such affidavit, not by law exempt, and the amount of the claim sued upon.
Source: SDC 1939, § 37.2802; SL 1939, ch 144; SL 1990, ch 157, § 2; SL 2016, ch 116, § 2.
21-18-3.1. Garnishment prohibited before judgment.
Garnishment prior to obtaining final judgment in the principal action is prohibited.
Source: SL 1972, ch 133, § 2; SL 1990, ch 157, § 3; SL 2016, ch 116, § 3.
21-18-4. Affidavit covering more than one garnishee--Joint and several proceedings.
Any number of garnishees may be embraced in the same affidavit, but if a joint liability is claimed against any, it shall be so stated, and the garnishee named as jointly liable shall be deemed jointly proceeded against; otherwise the several garnishees shall be deemed severally proceeded against.
Source: SL 1909, ch 156, § 2; RC 1919, § 2454; SDC 1939, § 37.2802; SL 1939, ch 144.
21-18-6. Garnishee summons annexed to affidavit--Form.
The plaintiff shall annex or subjoin to the garnishment affidavit a garnishee summons, which shall be in substantially the following form:
State of South Dakota,
County of __________ ss. ________ Court
A. B., Plaintiff, vs.
C. D., Defendant, and
E. F., Garnishee.
The State of South Dakota to the said Garnishee:
You are hereby summoned pursuant to the annexed affidavit, as a garnishee of the defendant, C. D., and required within thirty days after the service of this summons upon you, exclusive of the day of service, to answer, according to law, whether you are indebted to or have in your possession or under your control any property, real or personal, belonging to such defendant, and to serve a copy of your answer on the undersigned at ________ in the county of ________; and in case of your failure so to do, you will be liable to further proceedings according to law; of which the said defendant will also take notice.
___________________________
Attorney for Plaintiff
P. O. Address ________ County, S. Dak.
Source: SL 1909, ch 156, § 3; RC 1919, § 2455; SDC 1939 & Supp 1960, § 37.2803.
21-18-7. Service of summons, affidavit, and garnishment disclosure on garnishee.
The garnishee summons, affidavit, and garnishment disclosure shall be served on each of the several garnishees named, in the manner provided for service of a summons in an action, by certified mail, or by registered mail pursuant to § 21-18-11.
Source: SDC 1939 & Supp 1960, § 37.2805; SL 1966, ch 123; SL 1967, ch 150; SL 1988, ch 182, § 1; SL 2016, ch 116, § 4.
21-18-8. Service of summons, affidavit, and garnishment disclosure when state is garnishee.
If the state is a garnishee, the garnishee summons, affidavit, and garnishment disclosure shall be served on the state auditor or his deputy only.
Source: SDC 1939 & Supp 1960, § 37.2805; SL 1966, ch 123; SL 1967, ch 150; SL 1988, ch 182, § 2.
21-18-9. Fee paid to garnishee for expense of garnishment disclosure.
If a garnishee summons, affidavit, and garnishment disclosure is served, the garnishee shall be paid the sum of fifteen dollars to reimburse the garnishee for the expense of preparing the garnishment disclosure which sum shall be taxed as a part of plaintiff's costs. If the garnishee is not paid, the garnishment proceeding is void. The return of service of the garnishee summons shall include a statement that the sum was paid. The garnishment disclosure shall be returned to the plaintiff and filed with the court.
Source: SDC 1939, § 37.2804; SL 1959, ch 238; SL 1988, ch 182, § 3; SL 1998, ch 126, § 1; SL 2016, ch 116, § 5.
21-18-10. Service of garnishee summons and affidavit on defendant.
The garnishee summons and affidavit shall also be served on the defendant to the action, either before or within thirty days after service on a garnishee, unless service of the summons in the action is made without the state or by publication, or by registered mail pursuant to § 21-18-11. If the defendant appears in the action by attorney, service may be made upon the attorney or upon the defendant.
Source: SL 1909, ch 156, § 5; RC 1919, § 2457; SL 1925, ch 182, § 2; SDC 1939 & Supp 1960, § 37.2805; SL 1966, ch 123; SL 1967, ch 150; SL 2001, ch 108, § 1; SL 2009, ch 109, § 2; SL 2016, ch 116, § 6.
21-18-11. Time and manner of service of summons, affidavit, and garnishment disclosure--Return--Payment or retention of property by garnishee.
Such garnishee summons, affidavit, and garnishment disclosure may be served by certified mail, return receipt requested, or personally by the sheriff of the county where any garnishee or defendant may be found, or by any other person not a party to the action. The person subscribing such garnishee summons may, at his option, by an endorsement thereon fix a time for the service thereof, and the service shall then be made accordingly. The service shall be made and the same returned, with proof of the service, to the person whose name is subscribed thereto, with reasonable diligence. If, after reasonable diligence, service by certified mail or personal service by the sheriff is unsuccessful within the time period provided for in § 21-18-10, the plaintiff may file an affidavit stating that fact and may serve such garnishee summons, affidavit, and garnishment disclosure on the defendant by mailing a copy of the documents, together with a copy to the garnishee, to the defendant's last known address by registered mail. The garnishee may proceed by complying with either § 21-18-32 or 21-18-33 and, by such compliance, is exonerated from any further liability to any party to the garnishment.
Source: SDC 1939, § 37.2804; SL 1959, ch 238; SL 1988, ch 182, § 4; SL 2009, ch 109, § 1; SL 2016, ch 116, § 7.
21-18-12. Liability of garnishee to plaintiff after service of summons.
From the time of the service of the summons upon the garnishee, the garnishee is liable to the plaintiff to the amount of the property, money, credits, and effects in the garnishee's possession or under the garnishee's control belonging to the defendant, or in which the garnishee is interested, to the extent of the garnishee's right or interest therein, and of all debts due to the defendant, except such as may be by law exempt from execution.
Source: SL 1909, ch 156, § 17; RC 1919, § 2470; SDC 1939 & Supp 1960, § 37.2807; SL 2016, ch 116, § 8.
21-18-13. Property held under void title included in garnishee's liability.
Any property, moneys, credits, and effects held by a conveyance or title void as to the creditors of the defendant shall be embraced in the liability provided by § 21-18-12.
Source: SL 1909, ch 156, § 17; RC 1919, § 2470; SDC 1939 & Supp 1960, § 37.2807.
21-18-14.1. Continuing lien on wages--Caption of garnishee summons--Disclosure forms.
The plaintiff may obtain a one hundred twenty-day continuing lien on wages by garnishment. If a lien is to be obtained, the plaintiff shall mark on the caption of the garnishee summons "continuing lien" and all disclosure forms shall include the following:
Garnishee will continue to withhold the nonexempt portion of the defendant's earnings as they accrue through the last payroll period ending on or before one hundred twenty days from the effective date of the garnishee summons, or until the sum held equals the amount stated in the garnishee summons, or until the employment relationship terminates, whichever first occurs.
At the time of the expected termination of the lien, the plaintiff shall mail to garnishee an additional copy of the disclosure form upon which the garnishee within ten days shall make further disclosure.
Source: SL 1988, ch 182, § 7; SL 2010, ch 111, § 1; SL 2016, ch 116, § 9.
21-18-15. Judgment not rendered on garnishee's liability on negotiable instrument.
No judgment shall be rendered upon a liability of the garnishee arising by reason of his having drawn, accepted, made, endorsed, or guaranteed any negotiable bill, draft, note, or other security.
Source: SL 1909, ch 156, § 18; RC 1919, § 2471; SL 1925, ch 183; SDC 1939 & Supp 1960, § 37.2819 (1).
21-18-16. Judgment not rendered on foreign corporation's liability paid by negotiable instrument.
No judgment shall be rendered upon a liability of the garnishee arising by reason of any money or indebtedness due and owing to the principal defendant from a foreign corporation, which such corporation shall have paid, or for which it shall have issued its negotiable check, draft, or bill of exchange, prior to actual notice to said corporation of service of summons in garnishment.
Source: SL 1925, ch 183; SDC 1939 & Supp 1960, § 37.2819 (5).
21-18-17. Judgment not rendered on carrier's liability for property in interstate commerce.
No judgment shall be rendered upon a liability of the garnishee arising by reason of any property in the possession of any common carrier when such property was at the time of service of the garnishee summons and affidavit actually in transit in interstate commerce, provided that such transit in interstate commerce shall not be deemed to have commenced until property has actually left the initial billing station.
Source: SL 1925, ch 183; SDC 1939 & Supp 1960, § 37.2819 (6).
21-18-18. Judgment not rendered against officer for property collected on legal process.
No judgment shall be rendered upon a liability of the garnishee arising by reason of any money or other thing received or collected by him as sheriff, or other officer, by force of an execution or other legal process in favor of the defendant.
Source: SL 1909, ch 156, § 18; RC 1919, § 2471; SL 1925, ch 183; SDC 1939 & Supp 1960, § 37.2819 (2).
21-18-19. Judgment not rendered on money accountable by public officer.
No judgment shall be rendered upon a liability of the garnishee arising by reason of any money in his hands as a public officer and for which he is accountable to the defendant merely as such officer.
Source: SL 1909, ch 156, § 18; RC 1919, § 2471; SL 1925, ch 183; SDC 1939 & Supp 1960, § 37.2819 (3).
21-18-23. Partial release of garnished funds on application by defendant.
The principal defendant may upon order to show cause, apply to the court in which the garnishment proceedings are pending for an order releasing such part of the funds as the court shall direct without waiting for the disposition of the action on its merits, and upon receipt of such certified copy of the order the garnishee defendant may pay over the amount authorized thereby without the necessity of waiting for the time of appeal to expire.
Source: SL 1927, ch 135, § 4; SDC 1939 & Supp 1960, § 37.2809.
21-18-24. Subsequent proceedings against additional or discharged garnishees--Summons and trial in other counties.
The plaintiff may in like manner subsequently proceed within the period limited against other garnishees, or against the same garnishees after they shall have once been discharged, upon a new affidavit, if he shall have reason to believe they have subsequently become liable; and he may summon garnishees resident in other counties than that in which the action is pending; but if an issue for trial shall be joined between the plaintiff and such garnishee, the court may on motion change the place of trial of such issue to the county of the garnishee's residence.
Source: SL 1909, ch 156, § 6; RC 1919, § 2458; SDC 1939 & Supp 1960, § 37.2810.
21-18-25. Actions by principal defendant against garnishee prohibited during garnishment--Stay of pending proceedings.
No action shall be commenced by the defendant or his assignee against a garnishee upon any claim or demand liable to garnishment, or to recover any property garnished, nor execution be issued upon a judgment in favor of the defendant against such garnishee subsequent to the service of the garnishee summons upon him, until the termination of the garnishee action; and, if an action shall have been commenced or an execution issued, it shall be stayed by the court or a judge thereof upon the garnishee's application, except that upon cause shown, the court or judge may by order permit the commencement of such an action, or the issuing of an execution, or the further prosecution of one stayed.
Source: SL 1909, ch 156, § 19; RC 1919, § 2472; SDC 1939 & Supp 1960, § 37.2822.
21-18-26. Garnishee's affidavit denying liability--Form.
Within thirty days from the service of such garnishee summons the garnishee may, if the truth warrants, file with the clerk of the court in which the action is pending, and serve a copy thereof upon the plaintiff, his affidavit in substantially the following form:
State of South Dakota,
County of __________ ss. ________ Court
A. B., Plaintiff, vs.
C. D., Defendant,
E. F., Garnishee.
E. F., being duly sworn, says that on the ____ day of ________, 20____, he was served with a garnishee summons in the above entitled action; that he was then in no manner and upon no account whatever indebted or under liability to the defendant (naming him), and that he then had in his possession or under his control, no real estate and no personal property, effects, or credits of any description whatever, belonging to said defendant or in which he had any interest; and is in no manner liable as garnishee in this action.
___________________________
Subscribed and sworn to before me this ____ day of ________, 20____.
Source: SL 1909, ch 156, § 8; RC 1919, § 2460; Supreme Court Rule 588, 1939; SDC 1939 & Supp 1960, § 37.2811.
21-18-27. Garnishee's garnishment disclosure liability--Time of filing--Contents.
Unless the garnishee makes the affidavit provided for in § 21-18-26, he shall within thirty days from the service of the garnishee summons file and serve in like manner a garnishment disclosure in which he shall state:
(1) Whether he was at the time of service of the garnishee summons indebted or under any liability to the defendant named in the garnishee summons, in any manner, upon any account, specifying, if indebted or liable, the amount, the interest thereon, the manner in which evidenced, when payable, whether an absolute or contingent liability, and all the facts and circumstances necessary to a complete understanding of such indebtedness or liability. If the garnishee is in doubt respecting any such liability or indebtedness, he may set forth all the facts and circumstances concerning the liability or indebtedness and submit the question to the court;
(2) Whether he held at the time aforesaid the title or possession of any real estate, or any interest in land of any description, or of any personal property, effects, or credits, or any instruments or papers relating to such, belonging to the defendant or in which he was in any way interested. If he admits any such or is in any doubt respecting the same, he shall set forth the description of such property and all the facts and circumstances concerning the same, and the title, interest, or claim of the defendant in or to the same.
If the garnishee claims any setoff or defense to any indebtedness or liability or any lien on or claim to the property, he shall set forth the facts and circumstances thereof fully.
The garnishee may state any claim of exemption from execution on the part of the defendant, or other objection known to him against the right of plaintiff to apply upon his demands the indebtedness or property disclosed.
If the garnishee discloses any indebtedness, or the possession of any property to which the defendant, and any other person as well, has a claim, he shall provide the names and residences of such claimants and so far as known the nature of their claims.
Source: SDC 1939 & Supp 1960, § 37.2812; SL 1988, ch 182, § 5.
21-18-27.1. Service of garnishment disclosure form on garnishee--Contents of form.
A garnishment disclosure form shall be served upon the garnishee. The disclosure shall be substantially in the following form:
State of South Dakota ) In _______________ Court
) ss.
County of __________ ) __________
__________
Plaintiff
vs.
__________
Defendant
and Garnishment Disclosure
__________
Garnishee
I am the ______________ of the garnishee and duly authorized to disclose for the garnishee.
On the ______ day of ______________, 20____, the time of service of garnishee summons on the garnishee, there was due and owing the defendant from the garnishee the following:
1. Earnings. For the purposes of garnishment, "earnings" means compensation payable for personal service whether called wages, salary, commission, bonus or otherwise, and includes periodic payments. "Earnings" does not include social security benefits or veterans' disability pension benefits, except when the benefits are subject to garnishment to enforce any order for the support of a dependent child. "Earnings" includes military retirement pay. "Disposable earnings" means that part of the earnings of an individual remaining after the deduction from those earnings of amounts required by law to be withheld (such as FICA, Medicare, and income tax withholding). If the garnishee summons was served upon you at a time when earnings from a prior completed pay period were owing but not paid, complete the following disclosure for earnings from both the past pay period and the current pay period.
a. Enter on the line below the amount of disposable earnings earned or to be earned by the defendant within the defendant's pay periods which may be subject to garnishment.
___________________________________________________
b. Enter on the line below forty times the hourly federal minimum wage (or state minimum wage, if greater) times the number of workweeks within the defendant's pay periods which may be subject to garnishment plus twenty-five dollars per week for each dependent family member residing with the garnishment debtor other than the garnishment debtor himself or herself. When pay periods consist of other than a whole number of workweeks, each day of a pay period in excess of the number of completed workweeks shall be counted as a fraction of a workweek equal to the number of workdays divided by the number of workdays in the normal workweek.
___________________________________________________
c. Enter on the line below the difference obtained (never less than zero) when line b is subtracted from line a.
___________________________________________________
d. Enter on the line below twenty percent (1/5) of line a.
___________________________________________________
e. Enter on the line below the lesser of line c and line d.
___________________________________________________
2. Money. Enter on the line below any amounts due and owing defendant, except earnings, from the garnishee.
___________________________________________________
3. Property. Describe on the line below any personal property, instruments or papers belonging to the defendant and in the possession of the garnishee.
___________________________________________________
4. Setoff. Enter on the line below the amount of any setoff, defense, lien or claim which the garnishee claims against the amount set forth on lines 1(e), 2 and 3. Allege the facts by which the setoff, defense, lien or claim is claimed. (Any indebtedness to a garnishee-employer incurred by the judgment debtor within ten days prior to the receipt of the first garnishment on a debt is void and should be disregarded.)
___________________________________________________
5. Adverse Interest. Enter on the line below any amounts claimed by other persons by reason of ownership or interest in the defendant's property (such as child support, federal wage garnishments, and other creditor garnishments). State the names and addresses of the persons and the nature of their claim, if known. (Any assignment of wages made by the defendant within ten days prior to the receipt of the first garnishment on a debt is void and should be disregarded.)
___________________________________________________
6. Enter on the line below the total of lines 4 and 5.
___________________________________________________
7. Enter on the line below the difference obtained (never less than zero) when line 6 is subtracted from the sum of line 1(e), 2 and 3.
___________________________________________________
8. Enter on the line below one hundred five percent of the amount set forth in the Affidavit of Garnishment.
___________________________________________________
9. Enter on the line below the lesser of line 7 and line 8. As garnishee, you are hereby instructed to retain this amount only if it is $25.00 or more. The balance shall be remitted to the debtor in a timely manner.
__________________________________
Signature ______________________________________________________
Authorized Representative of Garnishee
______________________________________________________
Title
Subscribed and sworn to before me this ________ day of ______________, 20____.
________________________
Notary Public
Source: SL 1988, ch 182, § 6; SL 1991, ch 24, § 7; SL 2016, ch 116, § 10; SL 2018, ch 129, § 1.
21-18-28. Disclosure of liability when state is garnishee.
In all cases in which the State of South Dakota is made garnishee defendant, it is not necessary for the state to file a formal disclosure, but it is a sufficient disclosure for the state auditor to notify the plaintiff or the plaintiff's attorney stating what amount, if any, is due to the principal defendant at the time of the service of summons in garnishment upon the state auditor. It is the duty of the state auditor to notify the plaintiff or the plaintiff's attorney within the time for making a return in garnishment and the state auditor shall mail a copy of the notice to the clerk of courts of the county in which the action was pending. No taking of issue is permitted on any return or disclosure made by the state auditor.
Source: SL 1927, ch 135, § 2; SDC 1939 & Supp 1960, § 37.2813; SL 2016, ch 116, § 11.
21-18-29. Disclosure by garnishee not made on information and belief--State excepted.
No answer or disclosure in garnishment except by the State of South Dakota shall be made upon information and belief. The answer or disclosure of the garnishee may be made by an agent or attorney having knowledge of the facts.
Source: SL 1909, ch 156, § 13; RC 1919, § 2465; SL 1923, ch 149; Supreme Court Rule 625, 1939; SDC 1939 & Supp 1960, § 37.2814.
21-18-30. Garnishee's answer conclusive unless issue taken--Trial of issues.
The answer of the garnishee shall in all cases be conclusive of the truth of the facts therein stated, and if it denies liability the proceeding against such garnishee shall be deemed discontinued, unless the plaintiff shall within thirty days serve upon the garnishee a notice in writing that he elects to take issue on his answer. In such case the issue shall stand for trial as a civil action in which the affidavit on the part of the plaintiff shall be deemed a complaint and the garnishee's affidavit the answer thereto. Nothing herein contained, however, shall permit raising of any issue when the state is garnishee defendant.
Source: SL 1909, ch 156, § 12; RC 1919, § 2464; SL 1927, ch 135, § 2; SDC 1939 & Supp 1960, § 37.2815.
21-18-31. Motion for order on answer of garnishee and defendant--Affidavit.
The plaintiff may in all cases move the court upon the answer of the garnishee and of the defendant, if the defendant shall also answer, for such order as the plaintiff is entitled to thereon. Such order is not a bar beyond the facts stated in such answers. The plaintiff shall attach an affidavit to the motion setting forth:
(1) Amount that is owed on judgment and accrued interest;
(2) Additional costs claimed;
(3) Credit for any payments made;
(4) Net balance due;
(5) Specific request for payment of the garnished amount sufficient to satisfy judgment; and
(6) Any surplus shall be returned to defendant.
Source: SL 1909, ch 156, § 12; RC 1919, § 2464; SDC 1939 & Supp 1960, § 37.2815; SL 2009, ch 110, § 1.
21-18-32. Payment to officer or clerk by garnishee--Discharge.
In case the answer of the garnishee shall show indebtedness to the defendant, he may pay the amount thereof to the officer having a levy, or to the clerk of the court; and the officer to whom such payment is made shall give him a receipt specifying the facts and such receipt shall be a complete discharge of all liability to any party for the amount so paid.
Source: SDC 1939 & Supp 1960, § 37.2816; SL 1990, ch 157, § 6.
21-18-33. Retention of property disclosed by garnishee until expiration of garnishment, levy, release, or court order--Return of property to defendant.
If the answer of the garnishee discloses any money, credits, or other property, real or personal, in the possession or under the control of the garnishee, the garnishee shall retain money, credits, or property in the garnishee's possession until the expiration of one hundred eighty days from the date of service of the garnishee summons upon the garnishee; the plaintiff causes a copy of a levy to be served upon the garnishee; the defendant authorizes release to the plaintiff; or the order of the court thereon. If, within one hundred eighty days, a levy has not been served upon the garnishee, no agreement has been made for payment or no order of the court for payment, the garnishment shall end, and any property, money, or credits held by the garnishee shall be returned to the defendant if the defendant is otherwise entitled to the money, credits, or property.
Source: SDC 1939 & Supp 1960, § 37.2816; SL 1988, ch 182, § 9.
21-18-34. Payment to clerk by state as garnishee--Exoneration of state.
The state auditor may, in the state auditor's discretion, at any time, pay to the clerk of courts of the county in which the action is brought any moneys that may be due to the principal defendant or the part thereof as was determined or due at the time of the service of the summons in garnishment upon the state. Upon the payment of any money to the clerk of courts, or upon notification by the state auditor to the plaintiff or the plaintiff's attorney of the amount, if any, due the defendant, the state auditor or any other state official and the state is absolutely exonerated from all liability.
Source: SL 1927, ch 135, § 5; SDC 1939 & Supp 1960, § 37.2816; SL 2016, ch 116, § 12.
21-18-35. Order to interplead adverse claimant disclosed by garnishee--Payment by garnishee and discharge--Service of notice on claimant.
When the answer of the garnishee shall disclose that any other person than the defendant claims the indebtedness or property in his hands, and the name and residence of such claimant, the court may on motion order that such claimant be made a defendant to the garnishee action; and that notice thereof, setting forth the facts, with a copy of such order, in such form as the court shall direct, be served upon him, and that after such service shall have been made, the garnishee may pay or deliver to the officer or the clerk such indebtedness or property, and have a receipt therefor, which shall be a complete discharge from all liability to any party for the amount so paid or property so delivered. Such notice shall be served in the manner required for service of a summons in a civil action, and may be made without the state or by publication thereof if the order shall so direct.
Source: SL 1909, ch 156, § 16; RC 1919, § 2469; SDC 1939 & Supp 1960, § 37.2821.
21-18-36. Answer or defense by adverse claimant--Judgment on default.
Upon service being made pursuant to § 21-18-35 such claimant shall be deemed a defendant in the garnishee action and within thirty days shall answer, setting forth his claim or any defense which the garnishee might have made. In case of default, judgment may be rendered which shall conclude any claim upon the part of such defendant.
Source: SL 1909, ch 156, § 16; RC 1919, § 2469; SDC 1939 & Supp 1960, § 37.2821.
21-18-37. Answer by other parties to affirmative claim set up by adverse claimant.
When an adverse claimant is made a garnishee defendant by notice as provided in this chapter and sets up an affirmative claim to the fund or property involved, any of the other parties to the garnishment may answer the same within thirty days after service thereof.
Source: Supreme Court Rule 590, 1939; SDC 1939 & Supp 1960, § 37.2823; SL 2016, ch 116, § 13.
21-18-38. Default judgment for adverse claimant--Trial of issues on adverse claim.
If no answer is made pursuant to § 21-18-37, the claimant shall be entitled to default judgment as in ordinary cases of failure to answer.
If issue be raised upon such claim, the court shall determine the order of trial and procedure at the commencement of the trial or upon motion of any party prior thereto.
Source: SL 1909, ch 156, § 15; RC 1919, § 2468; SDC 1939 & Supp 1960, § 37.2824.
21-18-39. Judgment against garnishee on failure to answer.
If any garnishee, except the state, is summoned and fails to answer as required by this chapter, the court may render judgment against the garnishee for the amount of any judgment, including costs, which the plaintiff has recovered in the principal action, together with the costs of the garnishee action.
Source: SL 1909, ch 156, § 10; RC 1919, § 2462; SDC 1939 & Supp 1960, § 37.2817; SL 2016, ch 116, § 14.
21-18-40. Judgment not entered against state as garnishee--Summons of state operating as assignment.
No judgment shall be entered against the State of South Dakota, nor shall any actual liability be incurred by the state in any garnishment proceeding. Any judgment entered against the principal defendant when the state is garnishee shall be paid only out of moneys due such principal defendant at the time of the service of the summons in garnishment and service of such summons on the state shall be of the same force and effect only as an assignment of the sum claimed or as much thereof as may be due the defendant from the state.
Source: SL 1927, ch 135, § 3; SDC 1939 & Supp 1960, § 37.2817.
21-18-41. Order for payment by state as garnishee after judgment against principal defendant--Service and payment by state auditor.
In all cases where judgment is obtained against the principal defendant and if in the opinion of the court in which the action is pending there are funds under the control of the state treasurer subject to garnishment, the court shall direct in its order or judgment that the state auditor shall issue his warrant for such part of the moneys in the state treasury which may be affected by said garnishment proceedings and the state auditor is hereby authorized upon the receipt of a certified copy of such judgment to issue his warrant for the amount specified in the judgment or such as may have been due to the principal defendant at the time of the service of the summons in garnishment. A certified copy of such judgment and order shall be served upon the principal defendant and the state auditor shall be authorized to issue his warrant as herein specified after ten days after the service of such order and the state auditor shall be thereby fully released from all liability on account of any irregularity or invalidity of the judgment against the principal defendant.
Source: SL 1927, ch 135, § 5; SDC 1939 & Supp 1960, § 37.2818.
21-18-42. Defense of garnishment proceedings by principal defendant--Grounds.
The principal defendant may in all cases by answer duly verified, to be served within thirty days from the service of the garnishee summons on him, defend the proceeding against any garnishee upon the ground that the indebtedness of the garnishee, or any property held by him, is exempt from execution against such defendant or for any other reason is not liable to garnishment; or upon any ground upon which a garnishee might defend the same; and may participate in the trial of any issue between the plaintiff and garnishee for the protection of his interests.
Source: SL 1909, ch 156, § 14; RC 1919, § 2466; SDC 1939 & Supp 1960, § 37.2820.
21-18-43. Defense of action by garnishee.
The garnishee may defend the defendant if the latter does not, but is under no obligation so to do.
Source: SL 1909, ch 156, § 14; RC 1919, § 2466; SDC 1939 & Supp 1960, § 37.2820; SL 2016, ch 116, § 15.
21-18-44. Garnishment proceedings deemed civil action--Procedural rules applicable.
The proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant as parties defendant, and all provisions of law relating to proceedings in civil actions at issue, including examination of the parties, amendments, and relief from default or proceedings taken and appeals and all provisions for enforcing judgments, shall be applicable thereto.
Source: SL 1909, ch 156, § 15; RC 1919, § 2468; Supreme Court Rule 590, 1939; SDC 1939 & Supp 1960, § 37.2823.
21-18-46. Right to jury trial in garnishment proceedings.
Any party to an issue in the garnishment proceeding shall be entitled to a jury trial in all cases where jury trials are allowed in ordinary civil actions.
Source: SDC 1939 & Supp 1960, § 37.2824.
21-18-47. Terms of judgment on garnishment proceedings--Orders for sale or disposition of property.
The court shall render such judgment in all cases as shall be just to all the parties, and properly protect their respective interests, and may adjudge the recovery of an indebtedness, the conveyance, transfer, or delivery to the sheriff, or any officer appointed by the judgment, of any real estate or personal property disclosed or found to be liable to be applied to the plaintiff's demand, or by the judgment pass the title thereto; and may therein or by its order, when proper, direct the manner of making sale and disposing of the proceeds thereof, or of any money or other thing paid over or delivered to the clerk or officer.
Source: SL 1909, ch 156, § 15; RC 1919, § 2468; SDC 1939 & Supp 1960, § 37.2825.
21-18-48. Judgment against garnishee as discharge of liability to defendant.
The judgment against a garnishee shall acquit and discharge him from all demands by the defendant, or his representative, for all money, goods, effects, or credits paid, delivered, or accounted for by the garnishee by force of such judgment.
Source: SL 1909, ch 156, § 15; RC 1919, § 2468; SDC 1939 & Supp 1960, § 37.2825.
21-18-49. Costs awarded in garnishment action.
In case of the trial of an issue between the plaintiff and any garnishee, costs are awarded to the plaintiff and against the garnishee in addition to the garnishee's liability if the plaintiff recovers more than the garnishee admitted by the garnishee's answer; and if the plaintiff does not, the garnishee shall recover costs of the plaintiff. In all other cases under this chapter not expressly provided for, the court may award costs in favor of or against any party in its discretion. When no issue is tried the costs of the garnishee action shall be taxed for the plaintiff in the garnishment action.
Source: SL 1909, ch 156, § 21; RC 1919, § 2474; SDC 1939, § 37.2826; SL 1947, ch 174; SL 2016, ch 116, § 16.
21-18-50. Storage and maintenance expenses allowed to garnishee--Possessory lien.
In all cases the garnishee shall be allowed the reasonable cost of the warehousing, storing, care, or keep of the property garnished in the hands of the garnishee. And the garnishee shall have a possessory lien on the property garnished until the same is paid.
Source: SDC 1939, § 37.2826 as added by SL 1947, ch 174.
21-18-51. Maximum amount subject to garnishment.
The maximum part of the aggregate disposable earnings of a wage earner for any workweek which is subject to garnishment may not exceed the lesser of:
(1) Twenty percent of disposable earnings for that week;
(2) The amount by which disposable earnings for that week exceed forty times the federal minimum hourly wage prescribed by 29 U.S.C. 206(a)(1) as amended and in effect on July 24, 2009, or applicable state minimum wage if greater, or any equivalent multiple thereof prescribed by regulation by the secretary of labor and regulation in case of earnings for any pay period other than a week, in effect at the time the earnings are payable less twenty-five dollars per week for each dependent family member residing with the garnishment debtor other than the garnishment debtor himself or herself.
The restrictions of subdivisions (1) and (2) do not apply in the case of any order of any court for the support of any person or any order of any court of bankruptcy under Title 11 of the United States Code.
Source: SL 1989, ch 189, § 1; SL 1990, ch 157, § 10; SL 1991, ch 366, § 2; SL 1993, ch 171; SL 1997, ch 124, § 1; SL 1998, ch 127, § 1; SL 2009, ch 111, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011; SL 2016, ch 116, § 17.
21-18-52. Maximum garnishment allowed for support of any person.
The maximum part of the aggregate disposable earnings of an individual for any work week which is subject to garnishment to enforce any order for the support of any person may not exceed:
(1) If the individual is supporting a spouse or dependent child other than a spouse or child with respect to whose support the order is used, fifty percent of the individual's disposable earnings for that week; and
(2) If the individual is not supporting a spouse or dependent child other than a spouse or child with respect to whose support the order is used, sixty percent of the individual's disposable earnings for that week;
except that with respect to the disposable earnings of any individual for any workweek, the fifty percent specified in subdivision (1) shall be deemed to be fifty-five percent and the sixty percent specified in subdivision (2) shall be deemed to be sixty-five percent, if and to the extent that the earnings are subject to garnishment to enforce a support order with respect to a period which is prior to the twelve week period which ends with the beginning of the workweek.
No court of this state may make, execute, or enforce any order or process in violation of this section.
Source: SL 1989, ch 189, § 2.
21-18-53. Extent of debtor exemption.
The earnings of a debtor are exempt from process or levy only to the extent provided in §§ 21-18-51 and 21-18-52.
Source: SL 1990, ch 157, § 5.
21-19-1
Definition of terms.
21-19-2
Affidavit required to levy on homestead in excess of exemption--Contents--Filing
and service of notice of levy and affidavit.
21-19-3
Notice of levy on property--Contents--Statement as to claim of exemptions.
21-19-4
Service on debtor of notice of levy.
21-19-5
Effect of levy made without notice--Time allowed for claim of exemptions--Restoration on claim of exemptions without notice of levy.
21-19-6
Court order for substitute method of making service.
21-19-7
Retention of property levied after notice to debtor.
21-19-8
Sale of perishable property seized--Retention of proceeds.
21-19-9
Time allowed for claim of exemptions--Claim by debtor's dependent.
21-19-10
Contents of claim of exemptions--Schedule of property.
21-19-11
Verification of claim required.
21-19-12
Failure to claim additional exemptions as waiver.
21-19-13
Relief from default in claiming exemptions--Effect on prior proceedings.
21-19-14
Procedure for claim exclusive except as to absolute exemptions.
21-19-15
Absolute exemptions not waived by failure to claim--Proceedings to reach homestead
exceeding exemption.
21-19-16
Retention of property claimed as exempt until final determination.
21-19-17
Application and order for immediate release of items of definite value--Earnings
necessary for support of debtor and family.
21-19-18
Release of exempt property on failure of creditor to answer.
21-19-19
Creditor's answer to claim of exemptions--Specification of disputed facts and
valuations.
21-19-20
Disputed valuation of homestead--Demand for appraisal.
21-19-21
Appointment of appraisers.
21-19-22
Specification of items to be appraised--Undisputed valuations--Appraisal of
homestead.
21-19-23
Appraisement at fair market value--Completion and filing of appraisement.
21-19-24
Hearing on appraisement--Valuations accepted unless questioned--Recitals in court
order on appraisement.
21-19-25
Amendment of papers filed.
21-19-26
Order releasing exempt property--Amended claim where exemptions claimed exceed
limitations.
21-19-27
Valuation of additional property to permit full benefit of exemptions--Selection and
release of additional property.
21-19-28
Division and setting aside homestead exceeding limitations--Court order where
division not feasible.
21-19-29
Sale of homestead--Disposition of proceeds--Postponement of sale to permit payment
by debtor.
21-19-30
Stay of proceedings on appeal from order--Security required.
21-19-1. Definition of terms.
As used in this chapter unless the context otherwise plainly requires:
(1) "Absolute exemptions" means property which, under chapters 43-31 and 43-45, is absolutely exempt from levy;
(2) "Additional exemptions" means additional property which may be claimed as exempt under chapter 43-45;
(3) "Claim" means a claim of exemptions as provided in this chapter;
(4) "Claimant" means a debtor or a dependent of debtor making claim of exemptions;
(5) "Court" means the court wherein the action is brought in which action the levy is made;
(6) "Creditor" means a person for whose benefit any such process is used;
(7) "Debtor" means a person on whose property levy has been made;
(8) "Levy" means any garnishment, attachment, or any seizure or levy whatsoever under execution or any other judicial process for the purpose of satisfying or securing the claim or demand of a creditor;
(9) "Officer" means a person making such levy;
(10) "Property" means any property whether real, personal, or mixed.
Source: SDC 1939 & Supp 1960, § 37.4901.
21-19-2. Affidavit required to levy on homestead in excess of exemption--Contents--Filing and service of notice of levy and affidavit.
No levy shall be made on any homestead to reach the valuation thereof in excess of the homestead exemption set by subdivision 43-45-3(2), whether on attachment, execution, or other process, except as provided in this section. In the event the creditor claims such valuation exceeds such exemption he shall deliver to the officer holding the process, an affidavit, by himself or his attorney, setting forth the legal description of such homestead if real property, or the descriptive data contained on the certificate of title if a mobile home, the claim as to valuation thereof, and all encumbrances according to the affiant's best knowledge, information, and belief. If it appears from such affidavit that the value of debtor's equity exceeds such homestead exemption, the officer must file in the office of the register of deeds of the county where the homestead is situated, a notice of levy on such homestead with the said affidavit attached thereto, which notice and affidavit shall be duly recorded and shall be forthwith served upon the debtor in the same manner as provided by this code as to other notices. From the time of such filing and such service, such notice shall be effective as a levy only on the excess over and above the homestead exemption.
Source: SDC 1939, § 37.4914; SL 1957, ch 186, § 4; SL 1972, ch 233, § 2; SL 1977, ch 185, § 1; SL 1978, ch 156, § 1.
21-19-3. Notice of levy on property--Contents--Statement as to claim of exemptions.
A notice of levy may be given by the creditor or the officer and shall set forth:
(1) A brief description of the process under which the levy was made, with the names of the parties to the action;
(2) The date of the levy and the name and official designation of the officer making the levy;
(3) A list of the property on which the levy was made;
(4) A statement that the debtor, within five days after service of the notice or within eight days after actual mailing thereof in the event of service by registered or certified mail, may claim exemptions allowed by law in addition to his absolute exemptions and that any dependent of a debtor may make such claim within five days after expiration of the period within which the debtor may make such claim, and that unless such debtor or such dependent makes such claim within such time, such failure to make such claim except as otherwise specifically provided by law, will be deemed a waiver of such additional exemptions.
Source: CCivP 1877, § 331; CL 1887, § 5135; SL 1893, ch 19; RCCivP 1903, § 360; RC 1919, § 2667; SDC 1939 & Supp 1960, § 37.4902.
21-19-4. Service on debtor of notice of levy.
Notice of levy under § 21-19-3 may be served upon the debtor or his attorney, or if the debtor is not represented by an attorney of record in the action or proceeding and if the debtor cannot be found within the county where the action or proceeding is pending, the notice may be served on the debtor by registered or certified mail addressed to the debtor's last known post office address.
Source: CCivP 1877, § 331; CL 1887, § 5135; SL 1893, ch 19; RCCivP 1903, § 360; RC 1919, § 2667; SDC 1939 & Supp 1960, § 37.4902.
21-19-5. Effect of levy made without notice--Time allowed for claim of exemptions--Restoration on claim of exemptions without notice of levy.
The notice of levy provided by § 21-19-3 shall not be essential to the validity of any levy, and any levy made without giving such notice shall be valid and shall have full force and effect except as otherwise specifically provided in this section, but the time in which a debtor or any dependent of a debtor may make claim of exemptions as provided in § 21-19-9, shall not commence to run unless and until such notice is given, and in the absence of such notice such claim may be made by such debtor or dependent at any time within ninety days of actual knowledge of such levy, or thereafter by permission of the court, if the court finds there was reasonable excuse for not making such claim within such ninety days. In the event any such claim is made in a case where no notice has been given under § 21-19-3 the court must require any property set aside to the debtor as exempt or its fair value to be restored by the creditor to the debtor.
Source: CCivP 1877, § 331; CL 1887, § 5135; SL 1893, ch 19; RCCivP 1903, § 360; RC 1919, § 2667; SDC 1939 & Supp 1960, § 37.4902.
21-19-6. Court order for substitute method of making service.
In any case when it fairly appears upon application to the court that it is not practicable or feasible to make service of any notice or paper on any creditor or debtor in the manner provided in this chapter, the court may make an order directing that some other manner or method of making such service be used, the method or manner so fixed to be such as the court determines and which will be most likely under the circumstances to give effective notice to the party to be served.
Source: SDC 1939 & Supp 1960, § 37.4913.
21-19-7. Retention of property levied after notice to debtor.
Except as provided in §§ 21-19-8 and 21-19-17 the officer must retain in his possession all money and property levied upon for at least fifteen days after notice to the debtor of the levy.
Source: SDC 1939 & Supp 1960, § 37.4910.
21-19-8. Sale of perishable property seized--Retention of proceeds.
As to perishable property either the creditor, the debtor, or the officer may make application to the court for an order for the immediate sale thereof, the procedure on such sale to be as directed by the court. If such sale of perishable property is made, the proceeds thereof must be retained by such officer until the expiration of fifteen days from the date of notice of such levy.
Source: SDC 1939 & Supp 1960, § 37.4910.
21-19-9. Time allowed for claim of exemptions--Claim by debtor's dependent.
Whenever a debtor upon whose property a levy has been made desires to claim as exempt any of such property, he may do so at any time after the levy and within five days after notice of such levy; or within eight days after actual mailing of such notice when the service is by registered or certified mail. Such claim shall be made by filing the same with the court and service upon the creditor and officer. If the debtor does not make such claim within such time, any dependent of debtor may make such claim within five days after expiration of the period within which the debtor may make such claim.
Source: CCivP 1877, §§ 326, 329; SL 1885, ch 55, § 1; CL 1887, §§ 5130, 5133; RCCivP 1903, §§ 355, 358; RC 1919, §§ 2662, 2665; SDC 1939 & Supp 1960, § 37.4903.
21-19-10. Contents of claim of exemptions--Schedule of property.
The claim of exemptions under § 21-19-9 shall set forth the facts relevant to such claim, and if the claimant does not reside within the county where the levy is made, must show the name and address of a person residing within such county on whom any paper may be served with the same force as if served on the claimant. Such claim shall also set forth a schedule of all of debtor's property of every kind and character, including money on hand, debts due and owing the debtor, earnings of the debtor, property held by others for the debtor's use and benefit, and all of the debtor's property rights of every kind and description with the fair value of every item of property scheduled. Encumbrances, if any, and the amounts thereof shall be disclosed as to each item of property. At the conclusion of such schedule there shall be set forth all items of property claimed as exempt whether or not levy has been made thereon and showing what items are claimed as exempt whether or not levy has been made thereon and showing what items are claimed as absolute exemptions and what items are claimed as additional exemptions.
Source: CCivP 1877, § 326; SL 1885, ch 55, § 1; CL 1887, § 5130; RCCivP 1903, § 355; RC 1919, § 2662; SDC 1939 & Supp 1960, § 37.4903.
21-19-11. Verification of claim required.
The claim of exemptions under § 21-19-9 must be verified by the claimant, if available, and if not, by the agent or attorney for the claimant with statement of the reasons why the verification was not made by the claimant.
Source: CCivP 1877, § 326; SL 1885, ch 55, § 1; CL 1887, § 5130; RCCivP 1903, § 355; RC 1919, § 2662; SDC 1939 & Supp 1960, § 37.4903.
21-19-12. Failure to claim additional exemptions as waiver.
Failure of a debtor or a dependent to make a claim of additional exemptions as provided in §§ 21-19-9 to 21-19-11, inclusive, shall be deemed a waiver thereof by the debtor and his dependents unless and until relief from the default is granted.
Source: SDC 1939 & Supp 1960, § 37.4904.
21-19-13. Relief from default in claiming exemptions--Effect on prior proceedings.
Default in the making of a claim of exemptions may be relieved at any time while such levy remains in force upon notice to the creditor, and upon showing satisfactory to the court of reasonable excuse. Relief from such default shall not in any manner whatever affect the validity of any proceedings previously had except:
(1) As to any sales made under such levy to any person who is in effect acting for the creditor or in collusion with the creditor, property so sold shall be treated as if in the possession of the creditor;
(2) As to any property still in possession of the officer or in the possession of the creditor, whether through sales or otherwise or deemed in the possession of the creditor under subdivision (1) of this section; and as to proceeds of any sales other than sales specified in subdivision (1), the same shall be subject to claim of exemptions only upon such terms as the court deems just, which terms must be such that the creditor shall be reimbursed for all expenses, including reasonable attorney's fees necessarily incurred subsequent to the time when such claim for exemptions should have been made as provided in § 21-19-9.
Source: SDC 1939 & Supp 1960, § 37.4903.
21-19-14. Procedure for claim exclusive except as to absolute exemptions.
Except as to absolute exemptions no property shall be exempt unless claimed as exempt as provided in §§ 21-19-9 to 21-19-13, inclusive.
Source: CCivP 1877, § 326; SL 1885, ch 55, § 1; CL 1887, § 5130; RCCivP 1903, § 355; RC 1919, § 2662; SDC 1939 & Supp 1960, § 37.4903.
21-19-15. Absolute exemptions not waived by failure to claim--Proceedings to reach homestead exceeding exemption.
Failure to claim absolute exemptions shall not constitute a waiver, and no rights whatsoever shall be acquired through or by any levy on property absolutely exempt. But proceedings may be had as provided by this chapter to reach under levy any part of the debtor's homestead which is in excess of the homestead exemption as provided by law.
Source: SDC 1939 & Supp 1960, § 37.4904.
21-19-16. Retention of property claimed as exempt until final determination.
If the debtor or a dependent makes claim of exemptions, the officer must retain in his possession all property claimed as exempt until final determination of such claim.
Source: SDC 1939 & Supp 1960, § 37.4910.
21-19-17. Application and order for immediate release of items of definite value--Earnings necessary for support of debtor and family.
If claim for exemptions is made under §§ 21-19-9 to 21-19-13, inclusive, the claimant may, upon three days' notice to the creditor, apply to the court for an order for immediate release from said levy of any property claimed as exempt in said claim, as to which property the valuation is definite and fixed and not open to dispute, meaning such items as money, bank accounts, earnings owing to debtor, and similar items. Upon hearing such application the court may order the immediate release from such levy of such items if satisfied that the same are clearly within the limitations of the additional exemptions as provided by law, the amount so set aside to be charged against the total amount of additional exemptions to be allowed to the claimant. Such releases where clearly within the limitations of the additional exemptions shall always be ordered when applied for as to earnings of debtor and similar items immediately necessary for the support of debtor and his family.
Source: CCivP 1877, § 331; CL 1887, § 5135; SL 1893, ch 19; RCCivP 1903, § 360; SL 1913, ch 228; RC 1919, § 2467; SDC 1939 & Supp 1960, § 37.4910.
21-19-18. Release of exempt property on failure of creditor to answer.
Unless the creditor within three days of service on him of a claim under §§ 21-19-9 to 21-19-13, inclusive, files and serves on the claimant an answer to such claim, the court shall forthwith and ex parte make an order allowing the exemptions as claimed and directing the release of such exempt property from the levy.
Source: SDC 1939 & Supp 1960, § 37.4905.
21-19-19. Creditor's answer to claim of exemptions--Specification of disputed facts and valuations.
If the creditor disputes the facts as stated in the claim or questions the valuations of property as stated in such claim, he must, within three days of service upon him of such claim, file and serve on claimant an answer thereto. Such answer must specify the alleged facts in such claim which the creditor disputes, and the items of property claimed as additional exemptions as to which the valuations alleged by the claimant are disputed by the creditor.
Source: SDC 1939 & Supp 1960, § 37.4906.
21-19-20. Disputed valuation of homestead--Demand for appraisal.
If the debtor is the owner of a homestead as defined by law, the creditor may take issue with the valuation thereof claimed by the debtor. If the debtor owns such homestead, but has not made a claim for exemptions, or has not valued such homestead in such claim, the creditor may at any time file and serve upon the debtor a demand for appraisal of such homestead.
Source: SDC 1939 & Supp 1960, § 37.4906.
21-19-21. Appointment of appraisers.
In such answer or such demand as the case may be the creditor must designate one appraiser. The claimant must within three days after such service file and serve upon the creditor a designation of one appraiser. The two appraisers so selected must select a third appraiser, and if they fail to agree thereon, such third appraiser must be selected by the court. If the appraiser designated by either party is unable to act the vacancy may be filled by the party who originally made such designation. If either party fails to make an appointment which he is entitled to make, the court may make such appointment. Appointment of any appraiser by the court must be on application by the debtor, claimant, or creditor, upon such notice as the court deems reasonable.
Source: CCivP 1877, § 327; CL 1887, § 5131; RCCivP 1903, § 356; RC 1919, § 2663; SDC 1939, § 37.4906.
21-19-22. Specification of items to be appraised--Undisputed valuations--Appraisal of homestead.
Upon the three appraisers being selected the court shall make an order specifying the property to be appraised. Such order shall specify for appraisal the items of property claimed as additional exemptions as to which items the creditor disputes the valuations alleged by the claimant. As to any items of property claimed as additional exemptions as to which the creditor does not dispute the valuations alleged by the claimant, such valuations shall be accepted as a verity. If the creditor has demanded an appraisal of the homestead or has taken issue with the valuation thereof alleged by the claimant, the order shall also direct the appraisal of the homestead.
Source: SDC 1939 & Supp 1960, § 37.4907.
21-19-23. Appraisement at fair market value--Completion and filing of appraisement.
The three appraisers must thereupon, and as soon as may be, proceed with the appraisement of the property specified in the order to be appraised, which appraisement must be at the actual fair market value of each item at the place where situated as nearly as can be determined. The appraisement when completed must be subscribed by at least two of the three appraisers which two appraisers must make oath that such appraisement was honestly and impartially made and that the values fixed represent the best judgment of such appraisers. Such appraisement must then be duly filed with the court.
Source: CCivP 1877, § 328; SL 1885, ch 55, § 2; CL 1887, § 5132; RCCivP 1903, § 357; RC 1919, § 2664; SDC 1939, § 37.4907.
21-19-24. Hearing on appraisement--Valuations accepted unless questioned--Recitals in court order on appraisement.
Upon such appraisement being filed either the claimant or the creditor may bring such matter on for hearing upon reasonable notice to be fixed by the court. Upon such hearing the court shall determine the disputed questions of fact relevant to the debtor's right to be allowed exemptions and evidence in the form of affidavits may be received. Valuations where disputed shall be accepted as fixed by the appraisement, if the court approves the appraisement, which shall be accepted as correct, unless questioned by one of the parties in which event the party questioning the appraisement shall have the burden of showing it should not be approved. If the court disapproves the appraisement, the court shall determine from evidence offered the valuations which are in dispute. The court need not make any formal findings of fact or conclusions of law as to disputed questions, but the court's order, provided for in § 21-19-26, must recite briefly the court's findings on disputed issues.
Source: SDC 1939 & Supp 1960, § 37.4908.
21-19-25. Amendment of papers filed.
At any time prior to final determination of any claim of exemptions, the court may, for good cause shown, allow amendments to any papers filed.
Source: SDC 1939 & Supp 1960, § 37.4911.
21-19-26. Order releasing exempt property--Amended claim where exemptions claimed exceed limitations.
If the claimant, on the basis of facts as shown by the claim and answer and as found by the court and on the basis of the valuations as determined, has not claimed as additional exemptions any more than allowed by law, the court shall order the same set aside and released from the levy. If the additional exemptions as claimed exceed the limitations provided by law, the claimant shall be allowed to make an amended claim within the limitations provided by law.
Source: SDC 1939, § 37.4909; SL 1957, ch 186, § 3.
21-19-27. Valuation of additional property to permit full benefit of exemptions--Selection and release of additional property.
If, to do substantial justice to the debtor with reference to allowing him to select property to the full amount of his additional exemptions as provided by law, it is necessary to fix the value of items of property not included in property originally claimed as exempt, and the parties cannot agree as to valuations, the court may determine the value of such items. If the debtor fails or refuses to make a new selection of additional exemptions, the court shall make it for him. Upon the selection being finally made the court shall order the additional exemptions set aside and released from the levy.
Source: SDC 1939, § 37.4909; SL 1957, ch 186, § 3.
21-19-28. Division and setting aside homestead exceeding limitations--Court order where division not feasible.
If the net value of the debtor's homestead being determined is more than the homestead exemption set by subdivision 43-45-3(2), the court shall determine whether it is feasible to divide such homestead so that the debtor retains his full homestead exemption as provided by law, which division, if feasible, shall be ordered made and the order shall provide that only that portion not set aside to the debtor is subject to levy. If the court finds that such division is not feasible, the court shall make an order to the effect that only that portion of the debtor's homestead represented by the valuation of such homestead exemption plus any encumbrances is subject to levy.
Source: SL 1890, ch 86, § 1; RCCivP 1903, § 345; RC 1919, § 2658; SDC 1939, § 37.4909; SL 1957, ch 186, § 3; SL 1977, ch 185, § 2; SL 1978, ch 156, § 2.
21-19-29. Sale of homestead--Disposition of proceeds--Postponement of sale to permit payment by debtor.
If the levy is upon execution, the order shall direct a sale in accordance with this section. If the levy is not upon execution, the order shall provide that if and when execution issues, that such sale shall be made. Such sale shall be of the entire homestead, provided the price offered at such sale exceeds the sum of the homestead exemption set by subdivision 43-45-3(2) plus the costs of sale for the equity of the debtor, and from the purchase price, the officer must pay the amount of such homestead exemption to the debtor, the balance of the sale price to be distributed as provided by law as to execution sales of nonexempt real estate. The order must further provide unless waived by the debtor that sale of the homestead be not had for sixty days, and that at any time prior to the sale the debtor may, at his option, pay to the officer the surplus of the determined valuation of said homestead over and above such homestead exemption plus all encumbrances.
Source: SL 1890, ch 86, § 1; RCCivP 1903, § 345; RC 1919, § 2658; SDC 1939, § 37.4909; SL 1957, ch 186, § 3; SL 1977, ch 185, § 3; SL 1978, ch 156, § 3.
21-19-30. Stay of proceedings on appeal from order--Security required.
In the event of an appeal from any order in a proceeding for setting aside of exemptions the order shall be stayed only upon the court or the appellate court being satisfied that there is a substantial doubt as to the result of such appeal and upon the appellant furnishing adequate security to be approved by the court granting the stay that the order appealed from will be fully complied with in the event it is affirmed and fully protecting the respondent as to all damages of any nature whatsoever resulting from the delay. Such security may be furnished in the same undertaking as the cost bond upon appeal.
Source: CL 1887, § 5135; SL 1893, ch 19; RCCivP 1903, § 360; SL 1913, ch 228; RC 1919, § 2467; SDC 1939 & Supp 1960, § 37.4912.
21-20-1
Levy against earnings prohibited within six months after determination of exemption--Change of financial status--Civil penalty for violations.
21-20-2
Civil penalty against attorney or agent for levy on earnings after determination of
exemption.
21-20-3
One penalty for one levy.
21-20-1. Levy against earnings prohibited within six months after determination of exemption--Change of financial status--Civil penalty for violations.
When garnishment or levy under any judicial process has been used to reach earnings of a party to any action or proceeding to secure or satisfy any claim, and such earnings have been duly determined to be exempt, further earnings of such party shall not, for a period of six months, be garnished or levied upon in connection with such claim, unless with the good faith belief, and with good reason for such belief, that such party's financial status has changed to the extent that property of such party in excess of all his exemptions whatsoever, can be reached to secure or satisfy such claim, wholly or in part. Any person who violates the provisions of this section shall be liable to the party whose earnings are garnished or levied upon in violation of this section, for a penalty of fifty dollars, recoverable in a civil action.
Source: SDC 1939 & Supp 1960, § 37.5001.
21-20-2. Civil penalty against attorney or agent for levy on earnings after determination of exemption.
Any attorney or agent who as such has caused garnishment or levy under judicial process to be made upon the earnings of any person, and such earnings have been duly determined to be exempt, and who within six months thereafter, as such attorney or agent, whether in behalf of the same or another claimant, causes another garnishment or levy to be made upon earnings of the same person, unless with the good faith belief, and with good reason for such belief, that such party's financial status has changed to the extent that property of such party, in excess of all exemptions whatsoever, can be reached to secure or satisfy such claim, wholly or in part, shall be liable to such person whose earnings are garnished or levied upon, for a penalty of fifty dollars recoverable in a civil action.
Source: SDC 1939 & Supp 1960, § 37.5002.
21-20-3. One penalty for one levy.
Under the provisions of this chapter only one penalty can be recovered for any one garnishment or levy.
Source: SDC 1939 & Supp 1960, § 37.5003.
21-21-1
Pending actions in which receivership authorized to prevent loss of property.
21-21-2
Receivership in foreclosure actions to prevent loss to mortgaged property.
21-21-3
Receivership where corporation dissolved, insolvent or unable to function.
21-21-4
Grounds for receivership after judgment.
21-21-5
Receivership under usages of equity.
21-21-6
Undertaking required of applicant on ex parte appointment of receiver--Amount and
terms--Additional undertaking.
21-21-7
Party not to be receiver except by consent.
21-21-8
Oath and undertaking of receiver.
21-21-9
Powers of receiver in collection and management of property.
21-21-10
Investment of receivership funds--Consent of parties.
21-21-1. Pending actions in which receivership authorized to prevent loss of property.
A receiver may be appointed by the court in which an action is pending, or by the judge thereof, on the application of the plaintiff or of any party whose right to or interest in the property, funds, or proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured, in any of the following actions:
(1) By a vendor to vacate a fraudulent purchase of property;
(2) By a creditor to subject any property or fund to his claim;
(3) Between partners or others jointly owning or interested in any property or fund.
Source: CCivP 1877, § 219, subdiv 1; CL 1887, § 5015, subdiv 1; RCCivP 1903, § 227, subdiv 1; RC 1919, § 2475 (1); SDC 1939 & Supp 1960, § 37.2601 (1).
21-21-2. Receivership in foreclosure actions to prevent loss to mortgaged property.
A receiver may be appointed by the court in which the action is pending, or by the judge thereof, in an action by a mortgagee for the foreclosure of his mortgage and sale of the mortgaged property, where it appears that the mortgaged property is in danger of being lost, removed, or materially injured, or that the conditions of the mortgage have not been performed, and that the property is probably insufficient to discharge the mortgage debt.
Source: CCivP 1877, § 219, subdiv 2; CL 1887, § 5015, subdiv 2; RCCivP 1903, § 227, subdiv 2; RC 1919, § 2475 (2); SDC 1939 & Supp 1960, § 37.2601 (2).
21-21-3. Receivership where corporation dissolved, insolvent or unable to function.
A receiver may be appointed by the court in which an action is pending, or by the judge thereof, in the cases where a corporation has been dissolved, or is insolvent, or is in imminent danger of insolvency, or has forfeited its corporate rights; or is unable to exercise its corporate functions because of continued dissension between or neglect by its stockholders, directors and officers.
Source: CCivP 1877, § 219, subdiv 5; CL 1887, § 5015, subdiv 5; RCCivP 1903, § 227, subdiv 5; RC 1919, § 2475 (5); SDC 1939 & Supp 1960, § 37.2601 (5).
21-21-4. Grounds for receivership after judgment.
A receiver may be appointed after judgment by the court in which the judgment was entered, or by the judge thereof:
(1) To carry the judgment into effect;
(2) To dispose of the property according to the judgment or to preserve it during the pendency of an appeal;
(3) In proceedings in aid of execution, when an execution has been returned unsatisfied; or
(4) When the judgment debtor refuses to apply his property in satisfaction of the judgment.
Source: CCivP 1877, § 219, subdiv 3, 4; CL 1887, § 5015, subdiv 3, 4; RCCivP 1903, § 227, subdiv 3, 4; RC 1919, § 2475 (3), (4); SDC 1939 & Supp 1960, § 37.2601 (3), (4).
21-21-5. Receivership under usages of equity.
A receiver may be appointed by the court in which an action is pending, or by the judge thereof, in all other cases where receivers have heretofore been appointed by the usages of courts of equity.
Source: CCivP 1877, § 219, subdiv 6; CL 1887, § 5015, subdiv 6; RCCivP 1903, § 227, subdiv 6; RC 1919, § 2475 (6); SDC 1939 & Supp 1960, § 37.2601 (6).
21-21-6. Undertaking required of applicant on ex parte appointment of receiver--Amount and terms--Additional undertaking.
If a receiver be appointed upon an ex parte application, the court, before making the order, may require from the applicant an undertaking, with sufficient sureties, in an amount to be fixed by the court, to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver and the entry by him upon his duties, in case the applicant shall have procured such appointment wrongfully, maliciously, or without sufficient cause; and the court may, in its discretion, at any time after said appointment, require an additional undertaking.
Source: CCivP 1877, § 221; CL 1887, § 5017; RCCivP 1903, § 229; RC 1919, § 2477; SDC 1939 & Supp 1960, § 37.2603.
21-21-7. Party not to be receiver except by consent.
No party or person interested in an action can be appointed receiver therein, without the written consent of the parties, filed with the clerk.
Source: CCivP 1877, § 221; CL 1887, § 5017; RCCivP 1903, § 229; RC 1919, § 2477; SDC 1939 & Supp 1960, § 37.2603.
21-21-8. Oath and undertaking of receiver.
Before entering upon his duties the receiver must be sworn to perform them faithfully, and, with one or more sureties, approved by the court or judge, execute an undertaking to such person and in such sum as the court or judge may direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the court therein.
Source: CCivP 1877, § 222; CL 1887, § 5018; RCCivP 1903, § 230; RC 1919, § 2478; SDC 1939 & Supp 1960, § 37.2603.
21-21-9. Powers of receiver in collection and management of property.
The receiver has, under the control of the court, power to bring and defend actions in his own name as receiver, to take and keep possession of the property, to receive rents, collect debts, to compound for and compromise the same, to make transfers, and generally to do such acts respecting the property as the court may authorize.
Source: CCivP 1877, § 223; CL 1887, § 5019; RCCivP 1903, § 231; RC 1919, § 2479; SDC 1939 & Supp 1960, § 37.2604.
21-21-10. Investment of receivership funds--Consent of parties.
Funds in the hands of a receiver may be invested upon interest, by order of the court, but no such order can be made except upon the consent of all the parties to the action.
Source: CCivP 1877, § 224; CL 1887, § 5020; RCCivP 1903, § 232; RC 1919, § 2480; SDC 1939 & Supp 1960, § 37.2605.
CHAPTER 21-22
ADMINISTRATION OF TRUST ESTATES
21-22-1 Definition of terms.
21-22-2 Application of chapter and §§ 55-3-24 to 55-3-48.
21-22-3 Inventory and documents filed by court trustee--Contents.
21-22-4 Appointment by nonresident trustee of agent to receive process.
21-22-5 County in which trustee's inventory and attached papers filed.
21-22-6 Commencement of supervision by court.
21-22-7 Petition, hearing and order dispensing with court supervision.
21-22-7.1 Notice of entry of order--Requirements.
21-22-8 Petition, hearing, and order resuming court supervision.
21-22-9 Petition, hearing, and order for court supervision of other trust--Information.
21-22-10 Fixing terms of trustee's bond--Amount and conditions--Sureties--Time of filing--New bond.
21-22-11 Bond required despite terms of trust instrument.
21-22-12 Vacancy of office of trustee--Successor--Temporary trustee--Resigned trustee.
21-22-13 Petitions relevant to trust administration--Hearing--Order.
21-22-14 Annual verified report of trustee--Optional calendar year basis.
21-22-15 Final report of trustee--Contents.
21-22-16 Objections to report of fiduciary or beneficiary--Adjournment of hearing--Order.
21-22-17 Contents of notice of hearings--Trustee's account attached.
21-22-18 Parties served with notice--Personal, mail, or electronic service.
21-22-19 Publication of notice in lieu of personal service.
21-22-20 Proof of service by affidavit.
21-22-21 Notice dispensed with by consent of parties.
21-22-22 Testimony and examination of reports--Questions considered.
21-22-23 Examination of trustee's reports by court.
21-22-24 Referee or accountant appointed to assist in examination of reports--Report confidential.
21-22-25 Attendance of witnesses and production of evidence at investigations and hearings.
21-22-26 Fiduciary's liability for failure to comply--Forfeiture of compensation--Fiduciary's acts not invalidated.
21-22-27 Prior settlement and distribution decrees validated--Assertion of vested rights.
21-22-28 Protection of privacy--Sealing and availability of documents.
21-22-29 21-22-29. Repealed by SL 2002, ch 100, § 2.
21-22-30 Court approval of trustee's accounting is conclusive--Accounting defined.
21-22-31 Rules of civil procedure applicable.
21-22-32 Title 55 governs actions of trustee as party to transaction.
21-22-1. Definition of terms.
Terms used in this chapter mean:
(1) "Beneficiary," any person beneficially interested in the trust, as defined in subdivision 55-1-24(1) or who has a direct financial interest in the trust, including a creditor or claimant with any rights or claimed rights against the trust estate if the creditor or claimant demonstrates a previously asserted specific claim against the trust estate;
(2) "Court trust," any trust which is established or confirmed by the judgment, decree, or order of any court of record of this state or any foreign jurisdiction;
(3) "Fiduciary," a trustee, custodian, enforcer, trust advisor, trust protector, or trust committee, as named in the governing instrument or order of court, regardless of whether such person is acting in a fiduciary or nonfiduciary capacity;
(4) "Other trust," any trust which is not a court trust;
(5) "Supervision," the supervision of the circuit court over the administration of a trust as provided in this chapter;
(6) "Trustee," the trustee or trustees of any trust which may be supervised under this chapter.
Source: Supreme Court Rule 237, 1939; SDC 1939 & Supp 1960, § 33.2601; SL 2010, ch 232, § 24; SL 2014, ch 226, § 6; SL 2015, ch 240, § 21; SL 2017, ch 204, § 23; SL 2018, ch 275, § 1.
21-22-2. Application of chapter and §§ 55-3-24 to 55-3-48.
This chapter applies to all trusts if any part of the trust estate has its situs within this state or if the trustee or a beneficiary resides in this state, except as otherwise specifically provided by statute or rule of court, the intent being to exclude therefrom such trusts as a statutory assignment for the benefit of creditors, probate administrations, conservatorships, and all other trusts as to which specific provision is made for court supervision. The provisions of §§ 55-3-24 to 55-3-48, inclusive, are applicable to actions or proceedings relating to trusts supervised or administered under this chapter.
Source: SDC 1939 & Supp 1960, § 33.2602; SL 1993, ch 213, § 98; SL 2000, ch 229, § 19; SL 2016, ch 231, § 27.
21-22-3. Inventory and documents filed by court trustee--Contents.
Within thirty days after entering upon his or her duties, any trustee under a court trust shall, if a resident of this state or if any of the trust estate has its situs in this state, file in the office of the clerk of the circuit court of the county specified in § 21-22-5 an inventory of all the trust estate, a copy of any personal representative's instrument of distribution, a copy of any recorded personal representative's deed of distribution, a duly certified copy of any other court order or clerk's statement establishing or confirming the trust, a true and correct copy of the governing instrument and all amendments and modifications made thereto, if any, on which the trust is based, a statement showing the names, residences and post office addresses of all persons, including conservators or other trustees interested in the trust, so far as known to the trustee, and the ages of such of them as are minors. Such inventory shall show a list and description of all the trust property, an estimate by the trustee of the value of each item, the encumbrances, if any, on each item, and all claims against the trust estate with the amount of each claim and the name and post office address of the claimant. Such inventory and such statement shall be duly verified by the trustee.
Source: SDC 1939 & Supp 1960, § 33.2603; SL 1993, ch 213, § 99; SL 2010, ch 232, § 25; SL 2014, ch 226, § 7.
21-22-4. Appointment by nonresident trustee of agent to receive process.
With the papers required by § 21-22-3 the trustee shall also file, if not a resident of this state, an appointment of a resident of this state as his agent for the service of process and of all papers relative to the administration of such trust.
Source: Supreme Court Rule, Part 3, Rule 2, September, 1923; Supreme Court Rule 239, 1939; SDC 1939 & Supp 1960, § 33.2603.
21-22-5. County in which trustee's inventory and attached papers filed.
The papers provided in §§ 21-22-3 and 21-22-4 shall be filed in the office of the clerk of the circuit court of the county where the trust estate or some part thereof has its situs, or if none of the trust estate has its situs in this state, in a county where a beneficiary resides, and if no beneficiary resides in this state, then in the county where the trustee resides.
Source: Supreme Court Rule, Part 3, Rule 1, September, 1923; Supreme Court Rule 239, 1939; SDC 1939 & Supp 1960, § 33.2603.
21-22-6. Commencement of supervision by court.
Immediately upon the filing of the papers required by §§ 21-22-3 and 21-22-4, supervision by the court shall be deemed to commence.
Source: Supreme Court Rule 239, 1939; SDC 1939 & Supp 1960, § 33.2603.
21-22-7. Petition, hearing and order dispensing with court supervision.
At any time after the filing of the papers required by §§ 21-22-3 and 21-22-4 a fiduciary, the trustor, or any beneficiary under such court trust, if the fiduciary, trustor, or beneficiary considers court supervision unnecessary or impractical and involving unnecessary burden and expense, may petition the court to dispense with the supervision. Upon the petition being filed, the court shall fix the time and place for hearing, unless the conditions of § 21-22-21 have been met, and cause notice thereof to be given as provided pursuant to this chapter. Upon the hearing the supervision may not be dispensed with if any fiduciary, trustor, or any beneficiary with a substantial interest in the trust objects to dispensing therewith. If there is no objection and the court is satisfied that supervision is impractical or unnecessary and would involve unnecessary burden and expense, an order may be entered dispensing with the supervision.
Source: Supreme Court Rule 240, 1939; SDC 1939 & Supp 1960, § 33.2604; SL 2014, ch 226, § 8; SL 2015, ch 240, § 22.
21-22-7.1. Notice of entry of order--Requirements.
Notice of entry as required by § 15-26A-6 shall require only that notice that an order has been entered has been served. Absent a court order to the contrary, there is no requirement that the order be attached to the notice of entry.
Source: SL 2002, ch 100, § 7.
21-22-8. Petition, hearing, and order resuming court supervision.
At any time during the existence of the trust, after supervision has been dispensed with pursuant to § 21-22-7, any fiduciary, trustor, or beneficiary may petition for a resumption of the supervision in which event the court shall, upon notice as provided pursuant to this chapter, conduct a hearing and the supervision shall be resumed unless good cause to the contrary is shown.
Source: Supreme Court Rule 240, 1939; SDC 1939 & Supp 1960, § 33.2604; SL 2014, ch 226, § 9; SL 2015, ch 240, § 23.
21-22-9. Petition, hearing, and order for court supervision of other trust--Information.
Any fiduciary, trustor, or beneficiary of any other trust may, if the trustee is a resident of this state or if any of the trust estate has its situs in this state, at any time petition the circuit court, the county where such petition is to be filed to be determined the same as in the case of a court trust, to exercise supervision. Upon the petition being filed, the court shall fix a time and place for hearing thereon, unless notice and a hearing are waived in writing by all fiduciaries and beneficiaries, and notice shall be given as provided pursuant to this chapter, and, upon such hearing, enter an order assuming supervision unless good cause to the contrary is shown. Thereupon the trustee shall within thirty days, file the information required pursuant to § 21-22-3 by a trustee under a court trust, and, at all times thereafter, the court shall have the same powers as over a court trust. If the petition for court supervision includes the information required pursuant to § 21-22-3, the fiduciary, trustor, or beneficiary may, in the same petition, request court action as to any matter relevant to the administration of the trust, including the termination of court supervision. Upon the hearing on the petition, the court shall enter an order assuming supervision unless good cause to the contrary is shown. The court shall make such order approving the relief requested by the petition, give such directions to a fiduciary as the court shall determine, or resolve objections filed by an interested party pursuant to § 21-22-16.
Source: SDC 1939 & Supp 1960, § 33.2605; SL 2002, ch 100, § 8; SL 2004, ch 312, § 10; SL 2014, ch 226, § 10; SL 2015, ch 240, § 24.
21-22-10. Fixing terms of trustee's bond--Amount and conditions--Sureties--Time of filing--New bond.
Unless the trustee is exempted by the terms of the instrument creating the trust from furnishing a bond or unless the instrument itself provides the amount and condition of such bond, the trustee shall, upon commencement of court supervision, petition the court to fix the amount and conditions of bond unless the conditions of § 21-22-21 have been met. The court shall then fix a time and place for hearing and direct notice thereof to be given as provided in this chapter. The bond shall be conditioned that the trustee will faithfully perform the trustee's trust and duly account for all money and property received, and the amount of the bond shall be fixed by the court in a sum which in the opinion of the court shall be sufficient to protect the interest of the beneficiaries. The bond shall be either with a corporate surety or with at least two personal sureties to be approved by the court who are residents and freeholders of this state and who together are worth in excess of all their liabilities and property exempt from execution, at least the amount of the bond. The trustee shall file the bond within ten days after entry of the order requiring that the bond be filed. If it appears that the proper administration of the trust requires that a new bond be given, the court may require such new bond.
Source: Supreme Court Rule, Part 3, Rule 9, September, 1923; Supreme Court Rule 248, 1939; SDC 1939, § 33.2612; Supreme Court Rule adopted Feb. 11, 1952; SL 2014, ch 226, § 11.
21-22-11. Bond required despite terms of trust instrument.
When the instrument creating the trust exempts the trustee from furnishing a bond or limits the amount thereof, or the court shall determine that the bond ordered to be filed is insufficient, the court may if it concludes that a bond be necessary or that a bond of a larger amount is necessary, require the furnishing of such bond.
Source: Supreme Court Rule, Part 3, Rule 9, September, 1923; Supreme Court Rule 248, 1939; SDC 1939, § 33.2612; Supreme Court Rule adopted February 11, 1952.
21-22-12. Vacancy of office of trustee--Successor--Temporary trustee--Resigned trustee.
In case of the vacancy of the office of trustee, unless the instrument creating the trust names the successor, or allows the resigning trustee or another person to appoint its successor, the successor shall be appointed by the court upon hearing and notice as provided in this chapter. In case of necessity the court may appoint a temporary trustee pending a permanent appointment.
If the office of trustee remains vacant for more than thirty days, then any resigned trustee in possession of trust property may petition the court for the appointment of a successor trustee. If no successor trustee can be secured within ninety days following a hearing held of the resigned trustee's petition, the resigned trustee shall deliver the trust property within its possession to any other fiduciary or other persons, as ordered by the court.
The resigned trustee shall be held harmless from any liability, absent the resigned trustee's gross negligence or willful misconduct, for any action taken pursuant to this section.
The resigned trustee is entitled to reimbursement for advances it has made on behalf of the trust and for reasonable compensation for the performance of its duties as trustee. Such advances and compensation shall act as a lien on trust assets under § 55-1A-34.
Following a trustee's resignation, the resigned trustee shall be deemed to be serving only as a custodian of the documents and assets of the trust then in its possession and shall be relieved of its fiduciary and administrative duties under the terms of the trust instrument and pursuant to state law. The resigned trustee is entitled to reimbursement for advances it has made on behalf of the trust and for reasonable compensation as a custodian. Such advances and compensation shall act as a lien on trust assets under § 55-1A-34.
The relief afforded to the trustee under this section does not limit other relief that may be requested or authorized under this chapter.
Source: Supreme Court Rule, Part 3, Rule 10, September, 1923; Supreme Court Rule 249, 1939; SDC 1939 & Supp 1960, § 33.2613; SL 2019, ch 209, § 3.
21-22-13. Petitions relevant to trust administration--Hearing--Order.
The trustor, a fiduciary, or a beneficiary of any trust under court supervision may at any time petition the court for its action as to any matter relevant to the administration of the trust, including particularly the requiring of special reports from a fiduciary, the exercise of any discretion vested in a fiduciary, and as to any matter as to which courts of equity have heretofore exercised jurisdiction over fiduciaries. Upon the filing of the petition the court shall fix a time and place for hearing unless the conditions of § 21-22-21 have been met and cause notice to be given as required by this chapter. Upon the hearing the court shall make such order, give such directions to a fiduciary as the court shall determine, or resolve objections filed by an interested party pursuant to § 21-22-16.
Source: SDC 1939 & Supp 1960, § 33.2607; SL 2002, ch 100, § 9; SL 2014, ch 226, § 12; SL 2015, ch 240, § 25.
21-22-14. Annual verified report of trustee--Optional calendar year basis.
Within one hundred twenty days after the expiration of each year from the commencement of court supervision over a trust, the trustee shall file a verified report showing in detail its receipts, disbursements, and acts during the year.
The trustee may at its election make its annual report during the first four months of any year covering its administration during the preceding year ending December thirty-first.
Source: Supreme Court Rule, Part 3, Rule 3, adopted September, 1923; Supreme Court Rule 242, 1939; SDC 1939 & Supp 1960, § 33.2606; SL 2006, ch 243, § 12.
21-22-15. Final report of trustee--Contents.
When the trust estate has been disposed of or the provisions of the instrument creating the trust have been complied with, the trustee must file his final report duly verified by him and which may by reference incorporate thereinto previous reports made and which, supplementing such previous reports, must contain a complete and itemized statement of all the receipts and disbursements of the trustee and all of his acts with relation to the trust.
Source: Supreme Court Rule, Part 3, Rule 4, September, 1923; Supreme Court Rule 244, 1939; SDC 1939 & Supp 1960, § 33.2608.
21-22-16. Objections to report of fiduciary or beneficiary--Adjournment of hearing--Order.
If any objection is made to any report or petition filed by a fiduciary or beneficiary, the objection shall be filed in writing and be made at or prior to the hearing on the report or petition. If the initial hearing does not resolve all objections, the court shall adjourn the hearing to a specified time and place to resolve all issues of fact and all issues of law. Following the initial hearing, the court may enter any order it deems appropriate, which order may:
(1) Resolve any issues the court deems proper if all matters included in the petition, which are not objected to at the initial hearing, are approved;
(2) Determine the scope of discovery; and
(3) Set a schedule for further proceedings for the prompt resolution of the matter.
Source: Supreme Court Rule, Part 3, Rule 7, September, 1923; Supreme Court Rule 245, 1939; SDC 1939 & Supp 1960, § 33.2609; SL 2015, ch 240, § 26.
21-22-17. Contents of notice of hearings--Trustee's account attached.
Notice of all hearings on all reports of the trustee and on all petitions filed shall be given as provided in this chapter. The court shall fix the time and place of the hearing. Notice of the time and place of the hearing, along with the nature of the hearing, shall be given as provided in this chapter. When the hearing is on an account of the trustee a copy of the account shall be served with the notice.
Source: Supreme Court Rule, Part 3, Rule 7, September, 1923; Supreme Court Rule 246, 1939; SDC 1939, § 33.2610; Supreme Court Rule adopted November 4, 1941; Supreme Court Rule adopted October 14, 1957; SL 2006, ch 243, § 7.
21-22-18. Parties served with notice--Personal, mail, or electronic service.
The notice provided by § 21-22-17 shall be served upon fiduciaries, beneficiaries, and attorneys of record, except as otherwise provided in chapter 55-18. Notice shall be served personally, by mail, postage prepaid, addressed to each person at the last known post office address as shown by the records and files in the proceeding, or electronically in accordance with § 15-6-5(b) and applicable local rules, at least fourteen days prior to the hearing, unless and to the extent that the court for good cause shown directs a shorter period or approves a different form of notice for some or all persons.
Source: SDC 1939, § 33.2610; Supreme Court Rule adopted November 4, 1941; Supreme Court Rule adopted October 14, 1957; SL 1982, ch 174, § 2; SL 1998, ch 282, § 38; SL 2014, ch 226, § 13; SL 2017, ch 208, § 27; SL 2023, ch 161, § 1.
21-22-19. Publication of notice in lieu of personal service.
When the number of persons to be served is large and the expense of service provided by § 21-22-18 would be burdensome, the court may, if it deems advisable, order, in lieu of service as provided in § 21-22-18, that such notice be published once each week for three successive weeks in a legal newspaper of the county prior to such hearing.
Source: Supreme Court Rule 246, 1939; SDC 1939, § 33.2610; Supreme Court Rule adopted November 4, 1941; Supreme Court Rule adopted October 14, 1957.
21-22-20. Proof of service by affidavit.
Proof of the service of notices or other papers in the manner provided by this chapter shall be made by affidavit of the person making the same, such affidavit to be filed in the office of the clerk of courts.
Source: Supreme Court Rule, Part 3, Rule 12, September, 1923; Supreme Court Rule 251, 1939; SDC 1939 & Supp 1960, § 33.2615.
21-22-21. Notice dispensed with by consent of parties.
If all beneficiaries of the trust join in a petition or report, or signify in writing their approval thereof, the notice required by § 21-22-17 may be dispensed with and the hearing may be had at any time.
Source: Supreme Court Rule adopted November 4, 1941; Supreme Court Rule adopted October 14, 1957; SDC Supp 1960, § 33.2610.
21-22-22. Testimony and examination of reports--Questions considered.
At all hearings the court shall take testimony in the same manner as at hearings on other proceedings and shall examine all reports and accounts filed, regardless of whether or not objections are made thereto, and shall also consider and pass upon all acts of a fiduciary, regardless of whether any question is raised with reference thereto.
Source: Supreme Court Rule, Part 3, Rule 8, September, 1923; Supreme Court Rule 247, 1939; SDC 1939 & Supp 1960, § 33.2611; SL 2014, ch 226, § 14.
21-22-23. Examination of trustee's reports by court.
No order approving a report or account of the trustee in whole or in part shall be made by the court until it shall have made a detailed examination of the items and satisfied itself sufficiently to render its own judgment thereon, that the report is in all things true and complete, and the acts done have been in compliance with the trust and for the advantage and best interests thereof.
Source: Supreme Court Rule 247, 1939; SDC 1939 & Supp 1960, § 33.2611; SL 1981, ch 168, § 1.
21-22-24. Referee or accountant appointed to assist in examination of reports--Report confidential.
If the report or account or other proceeding is of such length as to require assistance for the court, the court may in its discretion appoint a disinterested referee or employ an accountant or investigator at the expense of the trust to examine the same and report to the court thereon independently. Such report may be held by the court as confidential and for its own information, if the court so elects.
Source: Supreme Court Rule 247, 1939; SDC 1939 & Supp 1960, § 33.2611.
21-22-25. Attendance of witnesses and production of evidence at investigations and hearings.
Upon any such examinations or hearings on reports the court, or the referee or the accountant or agent whom it may appoint, may require the attendance of witnesses and the production of documents and other evidence and make such inquiry and investigations as are necessary to pass upon the report or other act correctly.
Source: Supreme Court Rule 247, 1939; SDC 1939 & Supp 1960, § 33.2611.
21-22-26. Fiduciary's liability for failure to comply--Forfeiture of compensation--Fiduciary's acts not invalidated.
Any fiduciary who fails or neglects to comply with the provisions of this chapter is subject to removal by the court and is liable to any beneficiary for all damages sustained by the beneficiary resulting from such noncompliance and shall also forfeit all right to compensation as the fiduciary during the period of such noncompliance unless it is shown, to the satisfaction of the court fixing such compensation, that such failure to comply was inadvertent and not intentional and was with reasonable excuse and that the fiduciary has performed his or her duties diligently, faithfully, and efficiently. Failure or neglect as to such compliance does not invalidate any act of the fiduciary.
Source: Supreme Court Rule 250, 1939; SDC 1939 & Supp 1960, § 33.2614; SL 2014, ch 226, § 15.
21-22-27. Prior settlement and distribution decrees validated--Assertion of vested rights.
All decrees of any court of this state made prior to January 1, 2010, settling accounts of trustees or distributing in whole or in part trust estates are hereby legalized, cured, and validated, notwithstanding any defects, omissions, or irregularities in the form of the petition, account, or the notice of the application therefor or in the manner, form, or method of giving or serving such notice.
If a person has a vested right in any real or personal property by reason of a defect, omission, or irregularity referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 2011, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in a court of this state, unless prior to July 1, 2011, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.
Source: SL 1983, ch 222, § 1; SL 1992, ch 307, § 6; SL 2010, ch 232, § 26.
21-22-28. Protection of privacy--Sealing and availability of documents.
The privacy of those who have established a court trust or other trust shall be protected in any court proceeding concerning the trust. Upon the filing of any petition, the instrument on which the trust is based, briefs, and the entire court file including a trust's inventory, statement filed by any fiduciary, annual verified report of a fiduciary, final report of a fiduciary, and all petitions relevant to trust administration and all court orders thereon shall be sealed upon filing and may not be made a part of the public record of the proceeding, but are available to the court, to the trustor, to any fiduciary, to any enforcer, to any beneficiary or the beneficiary's representative as provided in chapter 55-18, to their attorneys, and to such other interested persons as the court may order upon a showing of the need.
Source: SL 1998, ch 282, § 30; SL 2002, ch 100, § 1; SL 2014, ch 226, § 16; SL 2016, ch 231, § 28; SL 2017, ch 204, § 24; SL 2021, ch 207, § 5.
21-22-30. Court approval of trustee's accounting is conclusive--Accounting defined.
An accounting by a trustee of a court supervised trust and the final approval thereof by a court, whether or not such accounting is contested, is conclusive against all persons in any way interested in the trust, and the trustee, absent fraud, intentional misrepresentation, or material omission, shall be released and discharged from any and all liability as to all matters set forth in the accounting. For purposes of this section, the term, accounting, means any annual, interim, or final report or other statement provided by a trustee reflecting all transactions, receipts, and disbursements during the reporting period and a list of assets as of the end of the period covered by the report or statement.
Source: SL 2000, ch 229, § 3; SL 2017, ch 204, § 25.
21-22-31. Rules of civil procedure applicable.
A proceeding brought pursuant to this chapter is considered an action for purposes of title 15. Unless specifically provided to the contrary in this chapter or unless inconsistent with its provisions, the rules of civil procedure, including the rules concerning vacation of orders and appellate review, apply to all trusts governed by this chapter. If a conflict between chapter 15-6 and title 55, the provisions of title 55 shall be controlling.
Source: SL 2015, ch 240, § 27; SL 2017, ch 204, § 26.
21-22-32. Title 55 governs actions of trustee as party to transaction.
Notwithstanding the application of the principles of conflict of laws to the terms of a transaction involving a trust, whether a purchase of property by, or a sale of property to, a trust administered by a qualified person in South Dakota, as defined in § 55-3-41, the laws of this state as set forth in title 55 shall govern the actions of the trustee as a party thereto. South Dakota shall be considered the situs of the transaction.
Source: SL 2017, ch 204, § 27.
21-23-1
Scope of chapter.
21-23-2
Application by court officer or trustee for sale of property.
21-23-3
Application for sale verified--Contents.
21-23-4
Perishable property ordered sold without hearing--Report of sale.
21-23-5
Time and place of hearing on application to sell property.
21-23-6
Notice to parties of hearing on application--Manner of service prescribed by court.
21-23-7
Order for appraisal of property.
21-23-8
Court order after hearing on application to sell.
21-23-9
Time and notice of sale--Order in which items offered--Upset price.
21-23-10
Bond required of applicant to sell property.
21-23-11
Cash sale at public auction--Terms and security when deferred payments permitted.
21-23-12
Report of sale to court for confirmation--Contents of report.
21-23-13
Report for confirmation of sale authorized by trust instrument.
21-23-14
Examination of report of sale--Order and notice for formal hearing.
21-23-15
Consideration of new offers on hearing to confirm sale--Confirmation and
conveyance of property.
21-23-1. Scope of chapter.
This chapter is intended to cover, and provide uniform procedure in all proceedings to sell property in court trusts, receiverships, and any other cases where property is in the custody of an officer of the court and no specific provisions of law exist prescribing judicial procedure in ordering and confirming the sale of such property.
Source: Supreme Court Order No. 2 (1) adopted October 12, 1944; SDC Supp 1960, § 33.26A01.
21-23-2. Application by court officer or trustee for sale of property.
Any court officer or trustee who has in his possession or custody real or personal property and who deems it necessary or desirable and in the interest of the persons entitled to receive such property or beneficially interested therein, may apply to the court having jurisdiction of the proceeding affecting such property for authority to sell the same.
Source: Supreme Court Order No. 2 (2) adopted October 12, 1944; SDC Supp 1960, § 33.26A02.
21-23-3. Application for sale verified--Contents.
The application for leave to sell shall be verified and shall state the following particulars:
(1) The name of the case, trust, or proceeding, and the name of the court having jurisdiction thereof;
(2) The name of the receiver or other officer having custody of the property, with reference to the court order or decree giving him possession and custody thereof;
(3) The name of the persons beneficially interested in such property and the nature of their interests so far as known to the applicant; whenever there has been filed in the trust or proceeding a list of the names of the persons beneficially interested, the petitioner may refer to such list and by reference incorporate it in the petition without setting out therein the names of all persons beneficially interested;
(4) A description of the property as to which sale is desired;
(5) A statement of its value, and whether an appraisal thereof has been made by order of court and the date of such appraisal, if any;
(6) The reason why a sale is desired or necessary.
Source: Supreme Court Order No. 2 (3) adopted October 12, 1944; SDC Supp 1960, § 33.26A03.
21-23-4. Perishable property ordered sold without hearing--Report of sale.
Perishable property in the hands of such court officer may be ordered sold on his application, without hearing thereon. A written report of such sale containing the matters required in § 21-23-12 shall be submitted to the court.
Source: Supreme Court Order No. 2 (9) adopted October 12, 1944; SDC Supp 1960, § 33.26A09.
21-23-5. Time and place of hearing on application to sell property.
On the filing of an application for sale, except as provided by § 21-23-4, the court shall by order fix a time and place for hearing such application. The place shall be that most convenient for the persons interested in the property, and the time such as to permit adequate notice of the hearing to be given.
Source: Supreme Court Order No. 2 (4) adopted October 12, 1944; SDC Supp 1960, § 33.26A04.
21-23-6. Notice to parties of hearing on application--Manner of service prescribed by court.
The court to which the application for leave to sell property is addressed shall direct such notice to be given as will reasonably notify and inform the interested parties that an application to sell the property is pending. Ordinarily, such notice should be by the service on the interested parties of an appropriate notice of hearing, but where the number of persons beneficially interested is great, or some or all of them cannot conveniently be reached for personal service the court may direct that notice be given by publication in a legal newspaper, or by mailing, either by registered or certified mail, or otherwise, copies of the notice to the interested persons, or by posting copies of the notice at or about the place where the property is situated, the intention of this provision being that the court in its discretion shall prescribe such notice as can be given economically with reasonable likelihood that it will come to the attention of the interested parties.
Source: Supreme Court Order No. 2 (5) adopted October 12, 1944; SDC Supp 1960, § 33.26A05.
21-23-7. Order for appraisal of property.
If, in the opinion of the court, it is necessary in order to inform the court fully in the matter or to safeguard the rights of interested parties, the court may order an appraisal of such property to be made and filed before the hearing on the application to sell, and prescribe the time when the same shall be filed.
Source: Supreme Court Order No. 2 (6) adopted October 12, 1944; SDC Supp 1960, § 33.26A06.
21-23-8. Court order after hearing on application to sell.
On hearing the application to sell, the court may make such order as in the discretion of the court will best protect the rights of all persons interested in the property.
Source: Supreme Court Order No. 2 (7) adopted October 12, 1944; SDC Supp 1960, § 33.26A07.
21-23-9. Time and notice of sale--Order in which items offered--Upset price.
If a sale be ordered the court shall fix the time of sale, prescribe the notice thereof to be given, and in appropriate cases may direct the order in which the several items of property shall be offered for sale, and may fix an upset price upon any or all of the property.
Source: Supreme Court Order No. 2 (7) adopted October 12, 1944; SDC Supp 1960, § 33.26A07.
21-23-10. Bond required of applicant to sell property.
Whenever, in the opinion of the court to whom an application to sell property under the provisions of this chapter is addressed, the bond of the person applying is inadequate fully to protect the rights of all persons beneficially interested in such property, the court may, in the order for the sale of such property, require the applicant for leave to sell to give a bond in such amount and containing such conditions as the court may prescribe and the court may require corporate surety on such.
Source: Supreme Court Order No. 2 (8) adopted October 12, 1944; SDC Supp 1960, § 33.26A08.
21-23-11. Cash sale at public auction--Terms and security when deferred payments permitted.
Unless for good cause the court orders otherwise, all sales of property shall be at public auction for cash. If any portion of the purchase price is to be upon deferred payments, the order of the court shall require adequate security and shall fix the time within which payments are to be made and prescribe the rate of interest.
Source: Supreme Court Order No. 2 (7) adopted October 12, 1944; SDC Supp 1960, § 33.26A07.
21-23-12. Report of sale to court for confirmation--Contents of report.
All sales shall be reported to the court for confirmation. Such reports shall be in writing, shall specify when the property was sold, the name of the purchaser, the terms of sale, if the sale was other than for cash, the amount bid for each item of property, the expense of sale; and such report shall state that the provision of this chapter relative to the sale of such property, and the requirements of the court order, have been complied with.
Source: Supreme Court Order No. 2 (7) adopted October 12, 1944; SDC Supp 1960, § 33.26A07.
21-23-13. Report for confirmation of sale authorized by trust instrument.
Whenever a trustee is duly empowered by the instrument which creates the trust, or otherwise, to make a sale of any property which is a part of the trust estate, whether real or personal, he shall not be required to obtain any authorization of the court as a prerequisite to such sale, but may, if he desires, report such sale to the court for confirmation.
Source: Supreme Court Order No. 2 (1) adopted October 12, 1944; SDC Supp 1960, § 33.26A01.
21-23-14. Examination of report of sale--Order and notice for formal hearing.
On receiving a report of sale the court shall determine on an inspection of the same and of the files of the case or proceeding, whether a hearing on said report is necessary for the protection of the rights of persons beneficially interested in the property sold. Ordinarily such hearing should be had, but where the court is satisfied that such hearing is unnecessary, or will serve no useful purpose, or will occasion delay which will interfere with the sale of the property, or the cost of giving notice because of the large number of persons involved will entail a large and disproportionate expense the court may by order dispense with a hearing upon notice, and make such order confirming or rejecting the sale as to the court seems appropriate.
If the court determines that there must be a formal hearing on application to confirm a sale it shall so order and fix a time for such hearing, and by such order prescribe the notice thereof to be given.
Source: Supreme Court Order No. 2 (10) adopted October 12, 1944; SDC Supp 1960, § 33.26A10.
21-23-15. Consideration of new offers on hearing to confirm sale--Confirmation and conveyance of property.
On the hearing to confirm sale the court shall consider any new offers which exceed the offer set forth in the report of sale by at least five percent, and shall likewise consider any other offers made at the time of the hearing, and shall confirm the sale and direct the transfer of title, or conveyance of property, to the person submitting the best offer.
Source: Supreme Court Order No. 2 (10) adopted October 12, 1944; SDC Supp 1960, § 33.26A10.
21-24-1
Power of courts to provide declaratory relief--Form and effect of declarations.
21-24-2
Person including business associations and public agencies.
21-24-3
Construction and determination of validity of written instruments, legislative acts,
and franchises.
21-24-4
Contract construed before or after breach.
21-24-5
Determination of rights under trust or decedent's estate.
21-24-6
Declaratory relief powers not limited by specific enumeration.
21-24-7
Parties to be joined in action for declaratory relief.
21-24-8
Municipality joined in proceeding involving ordinance or franchise--Attorney general
joined when constitutional question involved.
21-24-9
Trial of issues of fact.
21-24-10
Judgment refused where controversy would not be terminated.
21-24-11
Award of costs.
21-24-12
Further relief after declaratory judgment--Application and order to show cause.
21-24-13
Review of declaratory orders and judgments.
21-24-14
Chapter declared remedial--Liberal construction.
21-24-15
Severability of provisions.
21-24-16
Citation of chapter.
21-24-1. Power of courts to provide declaratory relief--Form and effect of declarations.
Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declaration shall have the force and effect of a final judgment or decree.
Source: SL 1925, ch 214, § 1; SDC 1939 & Supp 1960, § 37.0101.
21-24-2. Person including business associations and public agencies.
The word, person, wherever used in this chapter shall be construed to mean any person, partnership, joint stock company, unincorporated association, or society, or municipal, public or other corporation of any character whatsoever.
Source: SL 1925, ch 214, § 13; SDC 1939 & Supp 1960, § 37.0113.
21-24-3. Construction and determination of validity of written instruments, legislative acts, and franchises.
Any person interested under a deed, will, written contract, or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.
Source: SL 1925, ch 214, § 2; SDC 1939 & Supp 1960, § 37.0102.
21-24-4. Contract construed before or after breach.
A contract may be construed either before or after there has been a breach thereof.
Source: SL 1925, ch 214, § 3; SDC 1939 & Supp 1960, § 37.0103.
21-24-5. Determination of rights under trust or decedent's estate.
Any person interested as or through a personal representative, trustee, conservator, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust in the administration of a trust, or of the estate of a decedent, minor, protected person, or insolvent, may have a declaration of rights or legal relations in respect thereto:
(1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;
(2) To direct the personal representatives or trustees to do or abstain from doing any particular act in their fiduciary capacity;
(3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.
Source: SDC 1939 & Supp 1960, § 37.0104; SL 1993, ch 213, § 100.
21-24-6. Declaratory relief powers not limited by specific enumeration.
The enumeration in §§ 21-24-3 to 21-24-5, inclusive, does not limit or restrict the exercise of the general powers conferred in § 21-24-1, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
Source: SL 1925, ch 214, § 5; SDC 1939 & Supp 1960, § 37.0105.
21-24-7. Parties to be joined in action for declaratory relief.
When declaratory relief is sought all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.
Source: SL 1925, ch 214, § 11; SDC 1939 & Supp 1960, § 37.0111.
21-24-8. Municipality joined in proceeding involving ordinance or franchise--Attorney general joined when constitutional question involved.
In any proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party and shall be entitled to be heard, and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard.
Source: SL 1925, ch 214, § 11; SDC 1939 & Supp 1960, § 37.0111.
21-24-9. Trial of issues of fact.
When a proceeding under this chapter involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.
Source: SL 1925, ch 214, § 9; SDC 1939 & Supp 1960, § 37.0109.
21-24-10. Judgment refused where controversy would not be terminated.
The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.
Source: SL 1925, ch 214, § 6; SDC 1939 & Supp 1960, § 37.0106.
21-24-11. Award of costs.
In any proceeding under this chapter the court may make such award of costs as may seem equitable and just.
Source: SL 1925, ch 214, § 10; SDC 1939 & Supp 1960, § 37.0110.
21-24-12. Further relief after declaratory judgment--Application and order to show cause.
Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application be deemed sufficient, the court shall, on reasonable notice require any adverse party whose rights have been adjudicated by the declaratory judgment or decree to show cause why further relief should not be granted forthwith.
Source: SL 1925, ch 214, § 8; SDC 1939 & Supp 1960, § 37.0108.
21-24-13. Review of declaratory orders and judgments.
All orders, judgments, and decrees under this chapter may be reviewed as other orders, judgments, and decrees.
Source: SL 1925, ch 214, § 7; SDC 1939 & Supp 1960, § 37.0107.
21-24-14. Chapter declared remedial--Liberal construction.
This chapter is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and is to be liberally construed and administered.
Source: SL 1925, ch 214, § 12; SDC 1939 & Supp 1960, § 37.0112.
21-24-15. Severability of provisions.
The several sections and provisions of this chapter except §§ 21-24-1 and 21-24-3 are hereby declared independent and severable, and the invalidity, if any, of any part or feature thereof shall not affect or render the remainder of the chapter invalid or inoperative.
Source: SL 1925, ch 214, § 14; SDC 1939 & Supp 1960, § 37.0114.
21-24-16. Citation of chapter.
This chapter may be cited as the Uniform Declaratory Judgments Act.
Source: SL 1925, ch 214, § 16; SDC 1939 & Supp 1960, § 37.0115.
21-25-1 to 21-25-4. Repealed.
21-25A-1
Enforceability of arbitration clauses in written contracts--Labor contracts.
21-25A-2
Chapter prospective only.
21-25A-3
Insurance policies not covered--Arbitration agreements void.
21-25A-4
Circuit court jurisdiction of proceedings.
21-25A-5
Application to compel arbitration--Order to arbitrate or denial of application.
21-25A-6
Merits of claim not considered on application to compel arbitration.
21-25A-7
Stay of judicial proceedings on arbitrable issue--Severance of issues.
21-25A-8
Application to stay arbitration--Order to arbitrate or staying arbitration--Venue of
application.
21-25A-9
Appointment of arbitrators according to agreement--Appointment by court.
21-25A-10
Arbitrators acting by majority.
21-25A-11
Time and place of hearing--Notice to parties--Waiver of notice.
21-25A-12
Subpoenas issued by arbitrators--Service and enforcement.
21-25A-13
Depositions permitted by arbitrators--Compelling testimony.
21-25A-14
Hearing by all arbitrators--Continuation when arbitrator ceases to act.
21-25A-15
Evidence presented by parties--Cross-examination.
21-25A-16
Right to representation by counsel--Waiver ineffective.
21-25A-17
Adjournment or postponement of hearing--Failure of party to appear--Court order to
proceed promptly.
21-25A-18
Witness fees.
21-25A-19
Time for making award--Extension of time.
21-25A-20
Award in writing--Delivery to parties.
21-25A-21
Modification or correction of award--Application--Notice.
21-25A-22
Payment of expenses of proceedings.
21-25A-23
Judicial confirmation of award.
21-25A-24
Grounds for vacation of award.
21-25A-25
Time for application to vacate award.
21-25A-26
Confirmation of award on denial of application to vacate.
21-25A-27
Rehearing ordered after vacation of award--Time allowed for award on rehearing.
21-25A-28
Grounds for modification or correction of award.
21-25A-29
Alternative application to modify, correct, or vacate.
21-25A-30
Confirmation of award after determining application to correct or modify.
21-25A-31
Judgment or decree on confirmed award--Costs.
21-25A-32
Filing and docketing of judgment or decree.
21-25A-33
Applications by motion--Service of notices.
21-25A-34
Venue of applications.
21-25A-35
Appeals from orders, judgments, and decrees.
21-25A-36
Uniformity of construction of chapter.
21-25A-37
Severability of provisions.
21-25A-38
Citation of chapter.
21-25A-1. Enforceability of arbitration clauses in written contracts--Labor contracts.
A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. This chapter also applies to arbitration agreements between employers and employees or between their respective representatives.
Source: SL 1971, ch 157, § 1; SL 1976, ch 155, § 1.
21-25A-2. Chapter prospective only.
This chapter applies only to agreements made subsequent to June 30, 1971.
Source: SL 1971, ch 157, § 21.
21-25A-3. Insurance policies not covered--Arbitration agreements void.
This chapter does not apply to insurance policies and every provision in any such policy requiring arbitration or restricting a party thereto or beneficiary thereof from enforcing any right under it by usual legal proceedings in ordinary tribunals or limiting the time to do so is void and unenforceable. However, nothing in this chapter may be deemed to impair the enforcement of or invalidate a contractual provision for arbitration entered into between insurance companies.
Source: SL 1971, ch 157, § 24; SL 1976, ch 155, § 2; SL 1997, ch 125, § 1.
21-25A-4. Circuit court jurisdiction of proceedings.
The term, court, means a circuit court of this state. The making of an agreement described in § 21-25A-1 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under this chapter and to enter judgment on an award thereunder.
Source: SL 1971, ch 157, § 18.
21-25A-5. Application to compel arbitration--Order to arbitrate or denial of application.
On application of a party showing an agreement described in § 21-25A-1, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.
Source: SL 1971, ch 157, § 2.
21-25A-6. Merits of claim not considered on application to compel arbitration.
An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or because any fault or grounds for the claim sought to be arbitrated have not been shown.
Source: SL 1971, ch 157, § 2.
21-25A-7. Stay of judicial proceedings on arbitrable issue--Severance of issues.
Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under § 21-25A-5 or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.
Source: SL 1971, ch 157, § 2.
21-25A-8. Application to stay arbitration--Order to arbitrate or staying arbitration--Venue of application.
On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.
If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under § 21-25A-5, the application shall be made therein. Otherwise and subject to § 21-25A-34, the application may be made in any court of competent jurisdiction.
Source: SL 1971, ch 157, § 2; SL 1976, ch 155, § 3.
21-25A-9. Appointment of arbitrators according to agreement--Appointment by court.
Except as provided by chapter 21-25B, if the arbitration agreement provides a method of appointment of arbitrators, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails or is unable to act and his successor has not been duly appointed, the court on application of a party shall appoint one or more arbitrators. An arbitrator so appointed has all the powers of one specifically named in the agreement.
Source: SL 1971, ch 157, § 3; SL 1976, ch 155, § 4.
21-25A-10. Arbitrators acting by majority.
The powers of the arbitrators may be exercised by a majority unless otherwise provided by the agreement or by this chapter.
Source: SL 1971, ch 157, § 4.
21-25A-11. Time and place of hearing--Notice to parties--Waiver of notice.
Unless otherwise provided by the agreement, the arbitrators shall appoint a time and place for the hearing and cause notification to the parties to be served personally or by registered or certified mail not less than five days before the hearing. Appearance at the hearing waives such notice.
Source: SL 1971, ch 157, § 5 (1); SL 1987, ch 29, § 26.
21-25A-12. Subpoenas issued by arbitrators--Service and enforcement.
The arbitrators may issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence, and shall have the power to administer oaths. Subpoenas so issued shall be served, and enforced in the manner provided by law for the service and enforcement of subpoenas in a civil action.
Source: SL 1971, ch 157, § 7.
21-25A-13. Depositions permitted by arbitrators--Compelling testimony.
On application of a party and for use as evidence, the arbitrators may permit a deposition to be taken, in the manner and upon the terms designated by the arbitrators, of a witness who cannot be subpoenaed or is unable to attend the hearing. All provisions of law compelling a person under subpoena to testify are applicable.
Source: SL 1971, ch 157, § 7.
21-25A-14. Hearing by all arbitrators--Continuation when arbitrator ceases to act.
Unless otherwise provided by the agreement, the hearing shall be conducted by all the arbitrators but a majority may determine any question and render a final award. If, during the course of the hearing, an arbitrator for any reason ceases to act, the remaining arbitrator or arbitrators appointed to act as neutrals may continue with the hearing and determination of the controversy.
Source: SL 1971, ch 157, § 5 (3).
21-25A-15. Evidence presented by parties--Cross-examination.
Unless otherwise provided by the agreement, the parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.
Source: SL 1971, ch 157, § 5 (2).
21-25A-16. Right to representation by counsel--Waiver ineffective.
A party has the right to be represented by an attorney at any proceeding or hearing under this chapter. A waiver thereof prior to the proceeding or hearing is ineffective.
Source: SL 1971, ch 157, § 6.
21-25A-17. Adjournment or postponement of hearing--Failure of party to appear--Court order to proceed promptly.
Unless otherwise provided by the agreement, the arbitrators may adjourn the hearing from time to time as necessary and, on request of a party and for good cause, or upon their own motion may postpone the hearing to a time not later than the date fixed by the agreement for making the award unless the parties consent to a later date. The arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party duly notified to appear. The court on application may direct the arbitrators to proceed promptly with the hearing and determination of the controversy.
Source: SL 1971, ch 157, § 5 (1).
21-25A-18. Witness fees.
Fees for attendance as a witness shall be the same as for a witness in the circuit courts of this state.
Source: SL 1971, ch 157, § 7.
21-25A-19. Time for making award--Extension of time.
An award shall be made within the time fixed therefor by the agreement or, if not so fixed, within such time as the court orders on application of a party. The parties may extend the time in writing either before or after the expiration thereof. A party waives the objection that an award was not made within the time required unless he notifies the arbitrators of his objection prior to the delivery of the award to him.
Source: SL 1971, ch 157, § 8.
21-25A-20. Award in writing--Delivery to parties.
The award shall be in writing and signed by the arbitrators joining in the award. The arbitrators shall deliver a copy to each party personally or by registered or certified mail, or as provided in the agreement.
Source: SL 1971, ch 157, § 8; SL 1987, ch 29, § 27.
21-25A-21. Modification or correction of award--Application--Notice.
On application of a party or, if an application to the court is pending under §§ 21-25A-23 to 21-25A-30, inclusive, on submission to the arbitrators by the court under such conditions as the court may order, the arbitrators may modify or correct the award upon the grounds stated in subdivisions 21-25A-28(1) and (3), for the purpose of clarifying the award. The application shall be made within twenty days after delivery of the award to the applicant. Written notice thereof shall be given forthwith to the opposing party, stating that he must serve his objections thereto, if any, within ten days from the notice. The award so modified or corrected is subject to the provisions of §§ 21-25A-23 to 21-25A-30, inclusive.
Source: SL 1971, ch 157, § 9.
21-25A-22. Payment of expenses of proceedings.
Except as provided in §§ 21-25B-22 and 21-25B-25, unless otherwise provided in the agreement to arbitrate, the arbitrators' expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of arbitration, shall be paid as provided in the award.
Source: SL 1971, ch 157, § 10; SL 1976, ch 155, § 5.
21-25A-23. Judicial confirmation of award.
Upon application of a party, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in §§ 21-25A-24 to 21-25A-30, inclusive.
Source: SL 1971, ch 157, § 11.
21-25A-24. Grounds for vacation of award.
Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud, or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of §§ 21-25A-11 to 21-25A-17, inclusive, as to prejudice substantially the rights of a party;
(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under §§ 21-25A-5 to 21-25A-8, inclusive, and the party did not participate in the arbitration hearing without raising the objection; or
(6) Conduct of a hearing officer which would prejudice substantially the rights of a party; provided that, the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.
Source: SL 1971, ch 157, § 12; SL 1976, ch 155, § 6.
21-25A-25. Time for application to vacate award.
An application under § 21-25A-24 shall be made within ninety days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud, or other undue means, it shall be made within ninety days after such grounds are known or should have been known, but in no case more than one year after delivery of a copy of the award to the applicant.
Source: SL 1971, ch 157, § 13; SL 1976, ch 155, § 7.
21-25A-26. Confirmation of award on denial of application to vacate.
If the application to vacate is denied and no motion to modify or correct the award is pending, the court shall confirm the award.
Source: SL 1971, ch 157, § 13.
21-25A-27. Rehearing ordered after vacation of award--Time allowed for award on rehearing.
In vacating the award on grounds other than stated in subdivision 21-25A-24(5), the court may order a rehearing before new arbitrators chosen as provided in the agreement, or in the absence thereof, by the court in accordance with § 21-25A-9, or, if the award is vacated on grounds set forth in subdivisions 21-25A-24(3) and (4) the court may order a rehearing before the arbitrators who made the award or their successors appointed in accordance with § 21-25A-9. The time within which the agreement requires the award to be made is applicable to the rehearing and commences from the date of the order.
Source: SL 1971, ch 157, § 13.
21-25A-28. Grounds for modification or correction of award.
Upon application made within ninety days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:
(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award;
(2) The arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(3) The award is imperfect in a matter of form, not affecting the merits of the controversy.
Source: SL 1971, ch 157, § 14.
21-25A-29. Alternative application to modify, correct, or vacate.
An application to modify or correct an award may be joined in the alternative with an application to vacate the award.
Source: SL 1971, ch 157, § 14.
21-25A-30. Confirmation of award after determining application to correct or modify.
If the application to modify or correct an award is granted, the court shall modify and correct the award so as to effect its intent and shall confirm the award as so modified and corrected. Otherwise, the court shall confirm the award as made.
Source: SL 1971, ch 157, § 14.
21-25A-31. Judgment or decree on confirmed award--Costs.
Upon the granting of an order confirming, modifying, or correcting an award, judgment, or decree shall be entered in conformity therewith and be enforced as any other judgment or decree. Costs of the application and the proceedings subsequent thereto, and disbursements may be awarded by the court.
Source: SL 1971, ch 157, § 15.
21-25A-32. Filing and docketing of judgment or decree.
On entry of judgment or decree, the clerk shall file the following:
(1) The agreement and each written extension of the time within which to make the award;
(2) The award;
(3) The order confirming, modifying, or correcting the award; and
(4) The judgment or decree.
The judgment or decree may be docketed as if rendered in an action.
Source: SL 1971, ch 157, § 16; SL 1990, ch 149, § 12.
21-25A-33. Applications by motion--Service of notices.
Except as otherwise provided, an application to the court under this chapter shall be by motion and shall be heard in the manner and upon the notice provided by law for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in a civil action.
Source: SL 1971, ch 157, § 17.
21-25A-34. Venue of applications.
An initial application shall be made to the court of the county in which the agreement provides the arbitration hearing shall be held or, if the hearing has been held, in the county in which it was held. Otherwise the application shall be made in the county where the adverse party resides or has a place of business or, if he has no residence or place of business in this state, to the court of any county. All subsequent applications shall be made to the court hearing the initial application.
Source: SL 1971, ch 157, § 19.
21-25A-35. Appeals from orders, judgments, and decrees.
An appeal may be taken from:
(1) An order denying an application to compel arbitration made under § 21-25A-5;
(2) An order granting an application to stay arbitration made under § 21-25A-8;
(3) An order confirming or denying confirmation of an award;
(4) An order modifying or correcting an award;
(5) An order vacating an award without directing a rehearing; or
(6) A judgment or decree entered pursuant to the provisions of this chapter.
The appeal shall be taken in the manner and to the same extent as from orders or judgments in a civil action.
Source: SL 1971, ch 157, § 20.
21-25A-36. Uniformity of construction of chapter.
This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
Source: SL 1971, ch 157, § 22.
21-25A-37. Severability of provisions.
If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the chapter which can be given without the invalid provision or application, and to this end the provisions of this chapter are severable.
Source: SL 1971, ch 157, § 23.
21-25A-38. Citation of chapter.
This chapter may be cited as the Uniform Arbitration Act.
Source: SL 1971, ch 157, § 25.
21-25B-1
Services covered by arbitration agreements between hospitals or physicians and
patients--Termination as to future services--Effect.
21-25B-2
Parents and fiduciaries authorized to enter arbitration agreements on behalf of others--Nonliability.
21-25B-3
Warning clause required in arbitration agreement.
21-25B-4
Health care services arbitration panel created--Composition--Terms--Selection--Replacements.
21-25B-5
Health care services arbitration account created--Payment required of claimant prior
to commencement of arbitration action--Credit to account.
21-25B-6
Institution of claim--Written statement and receipt--Contents of statement.
21-25B-7
Joinder of subrogee--Segregation of damages or costs.
21-25B-8
Time for commencement of claims--Time for commencement of action in circuit
court.
21-25B-9
Claimant bound by arbitration agreement when claim is filed--Defendant bound after
twenty days.
21-25B-10
Appointment of arbitration officer--Qualifications--Filing of papers with officer.
21-25B-11
Duties of arbitration officer.
21-25B-12
Service of claim on defendant--Defendant's statement submitted to arbitration
officer--Copy to claimant.
21-25B-13
Three-member panel selected for small claims--Selection process.
21-25B-14
Five-member panel for large claims--Selection process.
21-25B-15
Five-member panel for multiple parties--Selection process.
21-25B-16
Striking selections for five-member panel.
21-25B-17
Refusal to serve as panel member or arbitration officer--Withdrawal after agreement
to serve.
21-25B-18
Continuation of panel member's service until determination of existing controversy.
21-25B-19
Disability or disqualification of panel member--Petition for court-appointed
replacement--Prior exhibits and testimony available--Recommendation by originally
appointing party.
21-25B-20
Panel members to receive copies of statements.
21-25B-21
Two-stage hearings--Waiting period between stages.
21-25B-22
Transcription of hearing--Expert witnesses--Expenses of panel members.
21-25B-23
Discovery procedures--Evidence--Privilege and confidentiality--Hearings closed to
public.
21-25B-24
Records and files of panel closed to public until judgment--Court order for
disclosure--Record filed with clerk of courts.
21-25B-25
Per diem and expenses of panel members--Compensation of arbitration officer--Payments from health care services arbitration account.
21-25B-26
Immunity of panel members and arbitration officers for official actions or
recommendations.
21-25B-1. Services covered by arbitration agreements between hospitals or physicians and patients--Termination as to future services--Effect.
Voluntary agreements pursuant to § 21-25A-1 between hospitals or physicians and patients relating to services provided to the patient may, by their terms, provide for past and future services by and between the parties to the agreement; provided, however, that any party to such an agreement may terminate it as to future services by giving written notice to all other parties thereto, and such termination shall in no way affect or alter the arbitration of controversies arising as to services rendered prior to the giving of such notice.
Source: SDCL, § 21-25A-1 as added by SL 1976, ch 155, § 1.
21-25B-2. Parents and fiduciaries authorized to enter arbitration agreements on behalf of others--Nonliability.
Natural parents having custody of a minor child and personal representatives of an estate, or a guardian or conservator for a ward may, notwithstanding other statutes to the contrary, enter into a binding arbitration agreement on behalf of the person, estate, beneficiary, ward or heirs at law that they represent for the purposes of this chapter only; and, such natural parents having custody of a minor child and personal representatives of an estate and guardian or conservator are not liable to the person, estate, beneficiary or heirs at law for entering into such binding arbitration agreement.
Source: SL 1976, ch 155, § 26; SL 1993, ch 213, § 101; SL 1995, ch 167, § 188.
21-25B-3. Warning clause required in arbitration agreement.
The arbitration agreement between hospitals or physicians and patients shall contain the following provision in twelve-point boldface type immediately above the space for signature of the parties: The agreement to arbitrate is not a prerequisite to health care or treatment. By signing this contract you are agreeing to have any issue of medical malpractice decided by neutral arbitration and you are giving up your right to a jury or court trial.
Source: SDCL, § 21-25A-1 as added by SL 1976, ch 155, § 1.
21-25B-4. Health care services arbitration panel created--Composition--Terms--Selection--Replacements.
There is hereby created a health care services arbitration panel. The president of the State Bar of South Dakota shall select fifteen lawyers to serve on the panel. Each lawyer selected shall serve a three-year term. The president of the State Medical Association shall select fifteen physicians licensed by the State Board of Medical and Osteopathic Examiners in the same manner, and the president of the State Hospital Association shall also select fifteen members in the same manner. When a panel member's term expires he shall continue to serve until a replacement is named.
Source: SL 1976, ch 155, §§ 8, 9; SL 1984, ch 160, § 1.
21-25B-5. Health care services arbitration account created--Payment required of claimant prior to commencement of arbitration action--Credit to account.
There is hereby created a health care services arbitration account of the general fund in the state treasurer's office. Prior to the commencement of any arbitration action before the health care services arbitration panel, the claimant shall remit the sum of one hundred dollars to the state treasurer who shall credit such funds to the health care services arbitration account.
Source: SL 1976, ch 155, §§ 8, 18.
21-25B-6. Institution of claim--Written statement and receipt--Contents of statement.
A claimant shall institute his claim by filing a written statement of his case with the presiding judge of the circuit court in which the controversy occurred along with a receipt showing that the one hundred dollars has been paid to the health care services arbitration account. These statements may be informal in nature but shall set forth the pertinent facts and claims upon which responsibility or lack of responsibility is alleged, and shall specify all injuries for which the defendant is alleged to be responsible. The statement shall also set forth the amount of damages claimed by the claimant, including loss of wages and payments for medical expenditures.
Source: SL 1976, ch 155, § 19.
21-25B-7. Joinder of subrogee--Segregation of damages or costs.
Any subrogee of a patient or anyone claiming by or through the patient who has entered into an arbitration agreement under this chapter may join their claim with that of such patient with the same force and effect as though brought by such patient and in any award or judgment based thereon or by separate award and judgment the damages or costs may be segregated between such party and the patient as the arbitration panel shall determine.
Source: SL 1976, ch 155, § 27.
21-25B-8. Time for commencement of claims--Time for commencement of action in circuit court.
Claims filed with the health care services arbitration panel may be commenced only within the time prescribed for actions for medical malpractice, error, mistake, or failure to cure, but if the circuit court determines that the matter is not one to be heard by the panel, the claimant shall have thirty days from the date of the decision of the court, or the time remaining under the limitation of action provisions for medical, error, mistake, or failure to cure, whichever is longer, to commence an action in circuit court.
Source: SL 1976, ch 155, § 25.
21-25B-9. Claimant bound by arbitration agreement when claim is filed--Defendant bound after twenty days.
Any person who files a claim pursuant to the provisions of § 21-25B-6 cannot thereafter petition the court to set aside the arbitration agreement. The defendant in any claim may file an application under § 21-25A-8 anytime within twenty days after being served with the claim and if he fails to do so he cannot thereafter petition the court to set aside the arbitration agreement.
Source: SDCL, § 21-25A-8 as added by SL 1976, ch 155, § 3.
21-25B-10. Appointment of arbitration officer--Qualifications--Filing of papers with officer.
The presiding judge of the circuit court shall, within ten days after institution as a claim pursuant to § 21-25B-6, appoint an arbitration officer to sit with the health care services arbitration panel. The arbitration officer shall be an individual licensed to practice law in the State of South Dakota. The written statement of the complainant and all other papers in the case shall be filed with the arbitration officer until the work of the panel has been completed.
Source: SL 1976, ch 155, §§ 15, 19.
21-25B-11. Duties of arbitration officer.
The duties of the arbitration officer are:
(1) To act as liaison between the health care services arbitration panel and the presiding judge of the circuit court;
(2) To advise the health care services arbitration panel on questions of law and procedure and rule on admissibility of evidence as provided in § 21-25B-23;
(3) To arrange for court reporters, hearing rooms, and the other logistical needs of the health care services arbitration panel;
(4) To prepare and serve notices for the panel;
(5) To oversee the selection of the members of the panel;
(6) To reduce the decision of the panel on liability and damages to writing and to serve it upon the parties to the controversy;
(7) To assist members of the panel in submitting their claims for compensation from the health care services arbitration account;
(8) At the request of a party or a member of the panel, to issue subpoenas for the attendance of witnesses and for the production of books, records, documents, and other evidence; and
(9) To perform any other assignments which are consistent with the intent of this chapter made by either the presiding judge of the circuit court or the health care services arbitration panel.
Source: SL 1976, ch 155, § 20.
21-25B-12. Service of claim on defendant--Defendant's statement submitted to arbitration officer--Copy to claimant.
The arbitration officer shall, within five days of appointment, serve a copy of the written statement of claim upon the defendant or defendants by registered or certified mail. The defendant shall, within twenty days following receipt of a copy of the written statement of the claim, submit a written statement of his own case to the arbitration officer with a copy to the claimant.
Source: SL 1976, ch 155, § 19; SL 1987, ch 29, § 28.
21-25B-13. Three-member panel selected for small claims--Selection process.
If the damages sought do not exceed ten thousand dollars, the arbitration panel shall consist of three members. Each party may select one member from the panel. If a party does not wish to select his member from the panel, he may petition the presiding judge of the circuit court in which the controversy occurred to appoint some other person of his choice, subject to the objection of the opposing party. Once these two members of the panel have been selected, these two members in turn shall select a third member which may or may not be from the panel. If they cannot agree within fifteen days, then the presiding judge of the circuit court shall, within fifteen days, appoint the third member.
Source: SL 1976, ch 155, § 12; SL 1984, ch 160, § 2.
21-25B-14. Five-member panel for large claims--Selection process.
If the damages claimed exceed ten thousand dollars, the panel shall consist of five members. In that event, each party may select two members from the panel and the same selection process that is set forth regarding the three-member panel shall be followed.
Source: SL 1976, ch 155, § 12; SL 1984, ch 160, § 3.
21-25B-15. Five-member panel for multiple parties--Selection process.
In all cases, if there is more than one plaintiff or defendant a five-member panel shall be appointed regardless of the amount of damages involved. If there are two plaintiffs or defendants, each may select one member of the panel in the same manner as provided in § 21-25B-13. If there are more than two plaintiffs or defendants, then all plaintiffs or defendants shall agree upon their selections to the panel. If one or both of the panel members have not been selected by the plaintiffs or defendants within fifteen days, then the presiding judge of the circuit court shall appoint one or two members for the plaintiffs or defendants as the case may be.
Source: SL 1976, ch 155, § 13.
21-25B-16. Striking selections for five-member panel.
In the case of a five-member panel each party may strike one choice of the other party. In such case the party whose choice has been struck shall make another selection. In the case of multiple plaintiffs or defendants, any panel member to be struck shall be mutually agreed to by all such plaintiffs or defendants. A request to strike a panel choice shall be made by a party by giving notice to the arbitration officer within five days of receipt from him of the other party's choices. The name of any person struck from the panel shall not be made public.
Source: SL 1976, ch 155, § 12.
21-25B-17. Refusal to serve as panel member or arbitration officer--Withdrawal after agreement to serve.
Any individual who is selected as a member of any health care services arbitration panel or as an arbitration officer may, without cause, refuse to serve. However, once he has agreed to serve he cannot then refuse to serve unless his withdrawal is agreed to by all parties to the controversy or his withdrawal is approved by the presiding judge of the circuit court.
Source: SL 1976, ch 155, § 11.
21-25B-18. Continuation of panel member's service until determination of existing controversy.
Any member serving on a health care services arbitration panel selected to consider an existing controversy shall continue to serve on such panel as to such controversy until it has been finally determined irrespective of whether his term of office has expired.
Source: SL 1976, ch 155, § 10.
21-25B-19. Disability or disqualification of panel member--Petition for court-appointed replacement--Prior exhibits and testimony available--Recommendation by originally appointing party.
If any person serving on a health care services arbitration panel becomes disabled or is disqualified from service thereon for any reason, the presiding judge of the circuit court shall, upon petition of any party to the arbitration agreement on the controversy under consideration, within fifteen days appoint someone to fill such vacancy. The person appointed to fill a vacancy shall have made available to him all exhibits and testimony heard or introduced prior to his appointment. If the vacancy is a position originally appointed by one of the parties to the controversy, on making such appointment the court shall consider persons recommended by the party originally making the nomination for the position vacated, but the court shall not be bound by any such recommendation.
Source: SL 1976, ch 155, § 14.
21-25B-20. Panel members to receive copies of statements.
The arbitration officer shall send copies of the written statements of claim and of the defendant's case to the panel members upon their selection.
Source: SL 1976, ch 155, § 19.
21-25B-21. Two-stage hearings--Waiting period between stages.
Hearings before the health care services arbitration panel shall be in two stages. The first stage shall be a hearing to determine whether or not there is any liability on behalf of the defendant or defendants. If the panel does find liability, there shall be a thirty-day waiting period during which the parties may agree as to damages. At the end of thirty days, if the damage question has not been settled, the panel shall reconvene to determine the amount of damages, if any, the claimant shall be awarded.
Source: SL 1976, ch 155, § 22.
21-25B-22. Transcription of hearing--Expert witnesses--Expenses of panel members.
The hearing before the health care services arbitration panel shall be transcribed by a court reporter. The panel may retain expert witnesses to aid in its determination. Expenses incurred by the panel shall be paid out of the health care services arbitration account.
Source: SL 1976, ch 155, § 17.
21-25B-23. Discovery procedures--Evidence--Privilege and confidentiality--Hearings closed to public.
The discovery rules contained in the South Dakota Rules of Civil Procedure shall apply to proceedings before the health care services arbitration panel. Any motion for relief arising out of the use of such discovery procedures shall be decided by the arbitration officer. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The panel shall give effect to rules of privilege and confidentiality recognized by law. All hearings before the arbitration panel shall be closed to the public.
Source: SL 1976, ch 155, §§ 21, 24.
21-25B-24. Records and files of panel closed to public until judgment--Court order for disclosure--Record filed with clerk of courts.
Records and files of proceedings before the health care services arbitration panel shall not, until the entry of judgment therein, be open to public inspection or examination, and the parties thereto or the subject thereof shall not be identified or disclosed except to the parties to such proceedings, their counsel of record, or members of the arbitration panel, or except upon order of the circuit court of the circuit in which such proceedings are venued, upon a showing of good cause therefor. When all proceedings are completed, the arbitration officer shall file the record with the clerk of courts.
Source: SL 1976, ch 155, §§ 19, 24.
21-25B-25. Per diem and expenses of panel members--Compensation of arbitration officer--Payments from health care services arbitration account.
Each member of the panel shall receive one hundred dollars per day plus expenses at the same rate as other state officers as compensation for his services on the panel. The presiding judge of the circuit court shall fix the compensation of the arbitration officer. All compensation shall be paid out of the health care services arbitration account.
Source: SL 1976, ch 155, § 16.
21-25B-26. Immunity of panel members and arbitration officers for official actions or recommendations.
No member of the health services arbitration panel nor the arbitration officer shall be liable in damages for any action taken or recommendation made by such panel member or arbitration officer acting within his official capacity as a member of the health services arbitration panel or as the arbitration officer.
Source: SL 1976, ch 155, § 23.
21-26-1
Causes for which judgment may be docketed.
21-26-2
Defendant's verified statement--Amount of judgment and authorization included.
21-26-3
Facts included in defendant's statement on judgment for money due or to become
due.
21-26-4
Facts stated in defendant's statement on judgment to secure against contingent
liability.
21-26-5
Presentation of defendant's statement--Notice and hearing.
21-26-6
Execution on judgment.
21-26-7
Execution for installment payments--Judgment and execution for later installments.
21-26-1. Causes for which judgment may be docketed.
A judgment by confession may be docketed, either for money due or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter.
Source: CCivP 1877, § 715; CL 1887, § 5537; RCCivP 1903, § 784; RC 1919, § 3023; SDC 1939 & Supp 1960, § 37.0301; SL 2019, ch 105, § 1.
21-26-2. Defendant's verified statement--Amount of judgment and authorization included.
A statement in writing must be made, signed by the defendant, and verified by his oath. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor.
Source: CCivP 1877, § 716, subdiv 1; CL 1887, § 5538, subdiv 1; RCCivP 1903, § 785, subdiv 1; RC 1919, § 3024 (1); Supreme Court Rule 554, 1939; SDC 1939 & Supp 1960, § 37.0302 (1).
21-26-3. Facts included in defendant's statement on judgment for money due or to become due.
If the judgment to be confessed be for money due or to become due, the defendant's verified statement must state concisely the facts out of which the debt arose, and must show that the sum confessed therefor is justly due, or to become due.
Source: CCivP 1877, § 716, subdiv 2; CL 1887, § 5538, subdiv 2; RCCivP 1903, § 785, subdiv 2; RC 1919, § 3024 (2); Supreme Court Rule 554, 1939; SDC 1939 & Supp 1960, § 37.0302 (2).
21-26-4. Facts stated in defendant's statement on judgment to secure against contingent liability.
If the judgment to be confessed be for the purpose of securing the plaintiff against a contingent liability, the defendant's verified statement must state concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the amount of such liability.
Source: CCivP 1877, § 716, subdiv 3; CL 1887, § 5538, subdiv 3; RCCivP 1903, § 785, subdiv 3; RC 1919, § 3024 (3); Supreme Court Rule 554, 1939; SDC 1939 & Supp 1960, § 37.0302 (3).
21-26-5. Presentation of defendant's statement--Notice and hearing.
The defendant's verified statement shall be presented to the court or a judge thereof, and if, after notice and hearing, which may not be waived, it is found sufficient, the court or judge shall render judgment accordingly, whereupon it may be filed in the office of the clerk who shall docket it.
Source: SDC 1939 & Supp 1960, § 37.0303; SL 1990, ch 149, § 8; SL 2019, ch 105, § 2.
21-26-6. Execution on judgment.
Execution may be issued and enforced on the judgment in the same manner as upon judgments in other cases in such court.
Source: CCivP 1877, § 717; CL 1887, § 5539; RCCivP 1903, § 786; RC 1919, § 3025; Supreme Court Rule 555, 1939; SDC 1939 & Supp 1960, § 37.0303.
21-26-7. Execution for installment payments--Judgment and execution for later installments.
When the debt for which the judgment is recovered is not all due, or is payable in installments and the installments are not all due, the execution may issue upon such judgment for the collection of such installments as have become due, and shall be in the usual form, but shall have endorsed thereon, by the attorney or person issuing the same, a direction to the sheriff to collect the amount due on such judgment, with interest and costs, which amount shall be stated, with interest thereon, and the costs of said judgment. Notwithstanding the issue and collection of such execution, the judgment shall remain as security for the installments thereafter to become due, and whenever any further installments become due, execution may in like manner be issued for the collection and enforcement of the same.
Source: CCivP 1877, § 717; CL 1887, § 5539; RCCivP 1903, § 786; RC 1919, § 3025; Supreme Court Rule 555, 1939; SDC 1939 & Supp 1960, § 37.0303.
CHAPTER 21-27
HABEAS CORPUS
21-27-1 Right of person detained or imprisoned to apply for writ.
21-27-1.1 Penal institution disciplinary sanctions--Writ not available remedy.
21-27-2 Inquiry into delay in bringing criminal prosecution to trial--Powers of court on return of writ.
21-27-3 Contents of application for writ--Documentary authority for commitment attached--Identification of prior applications.
21-27-3.1 Time for application.
21-27-3.2 Repealed by SL 2012, ch 118, § 2.
21-27-3.3 Two-year statute of limitation.
21-27-4 Counsel appointed for indigent applicant--Counsel fees--Ineffective assistance of counsel.
21-27-5 Writ awarded unless application shows no right to relief.
21-27-5.1 Second or subsequent application for writ--Leave to file--Dismissal.
21-27-6 Repealed.
21-27-7 Writ used to produce prisoners for testimony in criminal proceedings.
21-27-8 Signature and direction of writ--Endorsement by Habeas Corpus Act.
21-27-9 21-27-9. Repealed by SL 1983, ch 169, § 7.
21-27-9.1 Server of writ--Eligibility--Powers--Liability--Manner of service--Persons served.
21-27-9.2 Production of applicant--Payment of expenses--Applicant in state hospital or correctional facility.
21-27-9.3 Return to writ--Time for filing--Content.
21-27-10 Contempt and forfeiture by sheriff or jailer for failure to return writ and produce applicant--Liability for damages unaffected.
21-27-11 Transfer or concealment of applicant to avoid writ as felony.
21-27-12 Day set for hearing of cause.
21-27-13 Denials and new allegations in applicant's answer to return of writ--Amendment of return and suggestions against return.
21-27-14 Hearing and disposition of cause by judge.
21-27-14.1 Judge to hear application.
21-27-15 Judgment not inquired into on writ.
21-27-16 Causes for discharge of applicant committed on judicial process.
21-27-16.1 Repealed by SL 2012, ch 118, § 6.
21-27-17 New commitment in criminal case to remedy defects in previous commitment--Admission of applicant to bail.
21-27-18 Admission to bail of applicant in custody under judicial process.
21-27-18.1 Review by Supreme Court--Certificate of probable cause required--Motion for issuance of certificate--Appeal.
21-27-19 Admission to bail on grant of writ.
21-27-20 Supreme Court order required for admission to bail pending application for writ or pending appellate review.
21-27-21 Remand to custody or admission to bail pending review of order discharging writ.
21-27-22 Bail without surety pending review of order discharging prisoner.
21-27-23 Admission to bail by Supreme Court pending review.
21-27-24 Terms of bond given on admission to bail--Surety.
21-27-25 Order for temporary custody of person not held under judicial process--Security required of person granted custody.
21-27-26 Order remanding applicant to custody--Conclusive on second application for writ.
21-27-27 Discharge on second writ unlawful where crime charged--Admission to bail or remand to custody.
21-27-28 Second imprisonment on same cause prohibited after discharge on writ--Circumstances justifying second imprisonment.
21-27-29 Forfeiture for new arrest or detention after discharge on writ--Liability for damages unaffected.
21-27-1. Right of person detained or imprisoned to apply for writ.
Any person committed or detained, imprisoned or restrained of his liberty, under any color or pretense whatever, civil or criminal, except as provided herein, may apply to the Supreme or circuit court, or any justice or judge thereof, for a writ of habeas corpus.
Source: CCrimP 1877, §§ 671, 672; CL 1887, §§ 7839, 7840; RCCrimP 1903, §§ 771, 772; RC 1919, §§ 4978, 4979; SDC 1939 & Supp 1960, § 37.5501; SL 1983, ch 169, § 1.
21-27-1.1. Penal institution disciplinary sanctions--Writ not available remedy.
A writ of habeas corpus is not a remedy available to an applicant who is incarcerated or detained under a lawful order, or judgment and sentence to seek relief from sanctions imposed upon an applicant or administrative decisions made with regard to such application arising out of disciplinary or administrative actions of the penal institution where the applicant is being confined.
Source: SL 1983, ch 169, § 2.
21-27-2. Inquiry into delay in bringing criminal prosecution to trial--Powers of court on return of writ.
Any person committed for a criminal offense and not brought to trial, as provided by the provisions of this code, is entitled to have the delay inquired into upon a writ of habeas corpus, and the court or judge, upon the return of such writ, shall have power to remand or discharge the applicant or to admit him to bail, with or without sureties as the case may be.
Source: CCrimP 1877, § 678; CL 1887, § 7846; RCCrimP 1903, § 778; RC 1919, § 4984; SDC 1939 & Supp 1960, § 37.5502.
21-27-3. Contents of application for writ--Documentary authority for commitment attached--Identification of prior applications.
An application for a writ of habeas corpus shall be in writing and signed by the applicant or some person on his behalf, setting forth the facts concerning his detention and in whose custody he is detained, and shall be accompanied by a copy of the warrant of commitment or other documentary authority, if any, or by an affidavit that such copy has been demanded of the person in whose custody he is detained and by him refused or not given. The application shall identify any previous applications made pursuant to this chapter, together with the grounds therein asserted.
Source: CCrimP 1877, §§ 671, 672; CL 1887, §§ 7839, 7840; RCCrimP 1903, §§ 771, 772; RC 1919, §§ 4978, 4979; SDC 1939 & Supp 1960, § 37.5501; SL 1983, ch 169, § 3.
21-27-3.1. Time for application.
Proceedings under this chapter cannot be maintained while an appeal from the applicant's conviction and sentence is pending or during the time within which such appeal may be perfected.
Source: SL 1983, ch 169, § 4; SL 2012, ch 118, § 1.
21-27-3.2. Repealed by SL 2012, ch 118, § 2.
21-27-3.3. Two-year statute of limitation.
A two-year statute of limitation applies to all applications for relief under this chapter. This limitation period shall run from the latest of:
(1) The date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(2) The date on which the impediment to filing an application created by state action in violation of the constitution or laws of the United States or of this state is removed, if such impediment prevented the applicant from filing;
(3) The date on which the constitutional right asserted in the application was initially recognized by the Supreme Court of the United States or the Supreme Court of this state if the right has both been newly recognized and is retroactively applicable to cases on collateral review; or
(4) The date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Source: SL 2012, ch 118, § 3.
21-27-4. Counsel appointed for indigent applicant--Counsel fees--Ineffective assistance of counsel.
If a person has been committed, detained, imprisoned, or restrained of liberty, under any color or pretense whatever, civil or criminal, and if upon application made in good faith to the court or judge thereof, having jurisdiction, for a writ of habeas corpus, it is satisfactorily shown that the person is without means to prosecute the proceeding, the court or judge shall, if the judge finds that such appointment is necessary to ensure a full, fair, and impartial proceeding, appoint counsel for the indigent person pursuant to chapter 23A-40. Such counsel fees or expenses shall be a charge against and be paid by the county from which the person was committed, or for which the person is held as determined by the court. Payment of all such fees or expenses shall be made only upon written order of the court or judge issuing the writ. The ineffectiveness or incompetence of counsel, whether retained or appointed, during any collateral post-conviction proceeding is not grounds for relief under this chapter.
Source: SL 1943, ch 126; SDC Supp 1960, § 37.5504-1; SL 1969, ch 163; SL 1983, ch 169, § 5; SL 2012, ch 118, § 4.
21-27-5. Writ awarded unless application shows no right to relief.
The court or judge to whom the application for a writ of habeas corpus is made, shall forthwith award the writ, unless it shall appear from the application itself or from any document annexed thereto, that the applicant can neither be discharged nor admitted to bail, nor in any other manner relieved.
Source: CCrimP 1877, §§ 671, 672; CL 1887, §§ 7839, 7840; RCCrimP 1903, §§ 771, 772; RC 1919, §§ 4978, 4979; SDC 1939 & Supp 1960, § 37.5501.
21-27-5.1. Second or subsequent application for writ--Leave to file--Dismissal.
A claim presented in a second or subsequent habeas corpus application under this chapter that was presented in a prior application under this chapter or otherwise to the courts of this state by the same applicant shall be dismissed.
Before a second or subsequent application for a writ of habeas corpus may be filed, the applicant shall move in the circuit court of appropriate jurisdiction for an order authorizing the applicant to file the application.
The assigned judge shall enter an order denying leave to file a second or successive application for a writ of habeas corpus unless:
(1) The applicant identifies newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the applicant guilty of the underlying offense; or
(2) The application raises a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court and the South Dakota Supreme Court, that was previously unavailable. The grant or denial of an authorization by the circuit court to file a second or subsequent application shall not be appealable.
Source: SL 2012, ch 118, § 5.
21-27-6. Repealed.
Source: CCrimP 1877, §§ 681, 688; CL 1887, §§ 7849, 7856; RCCrimP 1903, §§ 781, 788; RC 1919, §§ 4985, 4990; SDC 1939 & Supp 1960, § 37.5507; SL 2024, ch 76, § 1.
21-27-7. Writ used to produce prisoners for testimony in criminal proceedings.
The Supreme and circuit courts and the judges thereof shall have power to issue writs of habeas corpus for the purpose of bringing any person imprisoned in any prison before any court or magistrate, to testify in any criminal action or proceeding in any county of the state, and returning such person to such prison.
Source: CCrimP 1877, § 689; CL 1887, § 7857; RCCrimP 1903, § 789; RC 1919, § 4991; SDC 1939 & Supp 1960, § 37.5503.
21-27-8. Signature and direction of writ--Endorsement by Habeas Corpus Act.
The writ of habeas corpus, if issued by the court, shall be under the seal of the court, or if by a judge, under his hand; and shall be directed to the person in whose custody the applicant is detained. To the end that no officer, sheriff, jailer, keeper, or other person to whom such writ is directed may pretend ignorance thereof, every such writ shall be endorsed with these words, By the Habeas Corpus Act.
Source: CCrimP 1877, § 671; CL 1887, § 7839; RCCrimP 1903, § 771; RC 1919, § 4978; SDC 1939 & Supp 1960, § 37.5501; SL 1983, ch 169, § 6.
21-27-9.1. Server of writ--Eligibility--Powers--Liability--Manner of service--Persons served.
The writ of habeas corpus may be served by the sheriff, coroner, or any person appointed for that purpose by the court or judge by whom the writ is entered; if served by a person not an officer, he has the same power, and is liable to the same penalty for nonperformance of his duty, as though he were sheriff. Service shall be made by leaving a copy of the order with the person to whom it is directed, or with any of his subordinates who may be at the place where the applicant is detained. If the respondent does not have the applicant imprisoned or restrained in custody, the service may be made upon any person who has the applicant in custody with the same effect as though he had been made a respondent. Concurrent service of the writ of habeas corpus shall be made upon the state's attorney of the county in which the application is made.
Source: SL 1983, ch 169, § 8; SL 1984, ch 161, § 1.
21-27-9.2. Production of applicant--Payment of expenses--Applicant in state hospital or correctional facility.
The officer or person upon whom the writ of habeas corpus is served shall produce the body of the applicant before the court at the hearing of the cause of imprisonment or detainer. If the applicant is in the custody of a civil officer, the court or judge who granted the writ shall determine the expense of bringing the applicant to court, which shall be paid prior to the hearing. If remanded, security must be given to pay the charges for carrying the applicant back. If the applicant is confined in a state correctional facility or state hospital, the court shall issue an order commanding the sheriff of the county in which the application is made to take custody of the applicant during the pendency of any proceedings before the court and to transport the applicant from and return the applicant to a state correctional facility or state hospital if the applicant is not released.
Source: SL 1983, ch 169, § 9; SL 1984, ch 161, § 2; SL 2023, ch 82, § 8.
21-27-9.3. Return to writ--Time for filing--Content.
The state's attorney of the county in which the writ of habeas corpus was issued shall file a return to the writ within fifteen days unless for good cause additional or less time, is granted. The return shall state the true cause or authority for the detention.
Source: SL 1983, ch 169, § 10; SL 1984, ch 161, § 3.
21-27-10. Contempt and forfeiture by sheriff or jailer for failure to return writ and produce applicant--Liability for damages unaffected.
If any officer, sheriff, jailer, keeper, or other person to whom any writ of habeas corpus is directed shall neglect or refuse to make the return, or to bring the body of the applicant according to the command of such writ, he shall be punished as for contempt and shall also forfeit to the prisoner or person aggrieved a sum not exceeding five hundred dollars. Recovery of the penalties provided herein shall be no bar to a civil suit for damages.
Source: CCrimP 1877, §§ 682, 688; CL 1887, §§ 7850, 7856; RCCrimP 1903, §§ 782, 788; RC 1919, §§ 4986, 4990; SDC 1939 & Supp 1960, § 37.5507.
21-27-11. Transfer or concealment of applicant to avoid writ as felony.
Anyone having a person in his custody or under his restraint, power, or control for whose relief a writ of habeas corpus is issued who, with intent to avoid the effect of such writ, shall transfer such person to the custody, or place him or her under the control of another, or shall conceal him or her, or change the place of his or her confinement, with intent to avoid the operation of such writ, or with intent to remove him or her out of this state, is guilty of a Class 5 felony.
Source: CCrimP 1877, § 683; CL 1887, § 7851; RCCrimP 1903, § 783; RC 1919, § 4987; SDC 1939 & Supp 1960, § 37.9905; SL 1979, ch 150, § 26.
21-27-12. Day set for hearing of cause.
Upon the return of the writ of habeas corpus, a day shall be set for the hearing of the cause of imprisonment or detainer, not exceeding thirty days thereafter, unless for good cause additional or less time is allowed.
Source: CCrimP 1877, § 673; CL 1887, § 7841; RCCrimP 1903, § 773; RC 1919, § 4980; SDC 1939 & Supp 1960, § 37.5504; SL 1983, ch 169, § 11.
21-27-13. Denials and new allegations in applicant's answer to return of writ--Amendment of return and suggestions against return.
The applicant for a writ of habeas corpus may deny any of the material facts set forth in the return or may allege any fact to show, either that the imprisonment or detention is unlawful or that he is then entitled to his discharge, which allegations or denials shall be made on oath. The return may be amended by leave of the court or judge, before or after the same is filed, as also may all suggestions made against it, in order that all material facts may be ascertained.
Source: CCrimP 1877, § 673; CL 1887, § 7841; RCCrimP 1903, § 773; RC 1919, § 4980; SDC 1939 & Supp 1960, § 37.5504.
21-27-14. Hearing and disposition of cause by judge.
The court or judge shall proceed in a summary way to settle the facts by hearing the evidence and arguments, as well of all persons interested civilly, if any there be, as of the applicant and the person who holds him in custody, and shall dispose of the applicant as the case may require.
Source: CCrimP 1877, § 673; CL 1887, § 7841; RCCrimP 1903, § 773; RC 1919, § 4980; SDC 1939 & Supp 1960, § 37.5504.
21-27-14.1. Judge to hear application.
The application shall be heard before any judge of the court in which the conviction took place. A record of the proceedings shall be made and kept. There may be no proceedings on an application by a judge who imposed sentence on the applicant or who otherwise denied him relief concerning the subject matter involved in the application.
Source: SL 1983, ch 169, § 12.
21-27-15. Judgment not inquired into on writ.
No court or judge, on the return of a writ of habeas corpus, shall in any other manner inquire into the legality or justice of a judgment or decree of a court legally constituted.
Source: CCrimP 1877, § 673; CL 1887, § 7841; RCCrimP 1903, § 773; RC 1919, § 4980; SDC 1939 & Supp 1960, § 37.5504.
21-27-16. Causes for discharge of applicant committed on judicial process.
If it appears on the return of a writ of habeas corpus that the applicant is in custody by virtue of process from any court legally constituted, he can be discharged only for one or more of the following causes:
(1) When the court has exceeded the limit of its jurisdiction, either as to the matter, place, sum, or person;
(2) Where, though the original imprisonment was lawful, yet by some act, omission, or event, which has subsequently taken place, the party has become entitled to his discharge;
(3) Where the process is defective in some substantial form required by law;
(4) Where the process, though in proper form, has been issued in a case or under circumstances where the laws do not allow process or orders for imprisonment or arrest to issue;
(5) When, although in proper form, the process has been issued or executed by a person either unauthorized to issue or execute the same, or where the person having the custody of the applicant, under the process, is not the person empowered by law to detain him;
(6) Where the process appears to have been obtained by fraud, false pretense, or bribery;
(7) Where there is no general law nor any judgment, order, or decree of a court to authorize the process, if in a civil suit, nor any conviction, if in a criminal proceeding.
Source: CCrimP 1877, § 673; CL 1887, § 7841; RCCrimP 1903, § 773; SL 1915, ch 145; RC 1919, § 4980; SDC 1939 & Supp 1960, § 37.5504.
21-27-16.1. Repealed by SL 2012, ch 118, § 6.
21-27-17. New commitment in criminal case to remedy defects in previous commitment--Admission of applicant to bail.
In all cases where the imprisonment is in a criminal, or supposed criminal matter, if it shall appear to the court or judge that there is sufficient legal cause for the commitment of the applicant, although such commitment may have been informally made or without due authority, or the process may have been executed by a person not authorized, the court or judge shall make a new commitment in proper form, directed to the proper officer, or shall admit the applicant to bail, if the case be bailable, as upon a preliminary examination.
Source: CCrimP 1877, § 673; CL 1887, § 7841; RCCrimP 1903, § 773; RC 1919, § 4980; SDC 1939 & Supp 1960, § 37.5504.
21-27-18. Admission to bail of applicant in custody under judicial process.
Sections 21-27-19 to 21-27-24, inclusive, shall control the admission to bail where the application for the writ of habeas corpus is by or in behalf of a person in custody under judicial process.
Source: Supreme Court Rule 623, 1939; SDC 1939 & Supp 1960, § 37.5509.
21-27-18.1. Review by Supreme Court--Certificate of probable cause required--Motion for issuance of certificate--Appeal.
A final judgment or order entered under this chapter may not be reviewed by the Supreme Court of this state on appeal unless the circuit judge who renders the judgment or a justice of the Supreme Court issues a certificate of probable cause that an appealable issue exists. A motion seeking issuance of a certificate of probable cause shall be filed within thirty days from the date the final judgment or order is entered. The issuance or refusal to issue a certificate of probable cause is not appealable. However, a party may, upon the circuit court judge's refusal to issue a certificate of probable cause, file a separate motion for issuance of a certificate of probable cause with the Supreme Court within twenty days of the entry of the circuit judge's refusal. Any party filing a motion with the Supreme Court shall serve a copy of the motion upon the opposing party, who shall have ten days to respond. The applying party shall then have five days to reply to such response. If a certificate of probable cause is issued the appeal may be brought by an applicant or the state within thirty days after entry of the certificate of probable cause.
Service of either a motion for a certificate of probable cause or of an appeal must be made upon both the attorney general and the appropriate state's attorney when the motion is made or the appeal is taken by the party seeking the habeas corpus relief.
Source: SL 1983, ch 169, § 14; SL 1986, ch 174; Supreme Court Rule 89-15; SL 2002, ch 250, § 3.
21-27-19. Admission to bail on grant of writ.
When the writ of habeas corpus is granted, the court or judge granting the writ may, within its discretion, admit the prisoner to bail, pending further order of the court.
Source: Supreme Court Rule 623, 1939; SDC 1939 & Supp 1960, § 37.5509 (1).
21-27-20. Supreme Court order required for admission to bail pending application for writ or pending appellate review.
The prisoner shall not be admitted to bail pending application for the writ of habeas corpus, or pending appellate review of an order refusing the writ, except by order of the Supreme Court or one of the judges thereof.
Source: Supreme Court Rule 623, 1939; SDC 1939 & Supp 1960, § 37.5509 (2).
21-27-21. Remand to custody or admission to bail pending review of order discharging writ.
Pending appellate review of an order discharging a writ of habeas corpus after it has been issued, the prisoner may be remanded to the custody from which he was taken by the writ, or detained in other appropriate custody, or admitted to bail, as to the court or judge rendering the decision may appear fitting in the circumstances of the particular case.
Source: Supreme Court Rule 623, 1939; SDC 1939 & Supp 1960, § 37.5509 (3).
21-27-22. Bail without surety pending review of order discharging prisoner.
Pending appellate review of an order discharging a prisoner on habeas corpus, he shall be admitted to bail without surety.
Source: Supreme Court Rule 623, 1939; SDC 1939 & Supp 1960, § 37.5509 (4).
21-27-23. Admission to bail by Supreme Court pending review.
Where the writ of habeas corpus is refused, or where the writ is discharged after having been issued, and the prisoner has been denied bail, he may be admitted to bail by the Supreme Court or one of the judges thereof, pending appellate review.
Source: Supreme Court Rule 623, 1939; SDC 1939 & Supp 1960, § 37.5509 (5).
21-27-24. Terms of bond given on admission to bail--Surety.
When the prisoner is admitted to bail, he shall furnish a bond in such sum as the court directs, conditioned that he shall render himself amenable to all orders and process of the court or judge and that he will forthwith comply with any order directing his return to custody. Except as to the bond of a prisoner whose discharge has been ordered, the bond must be with the same surety as required on a bail bond of a defendant in a criminal action.
Source: Supreme Court Rule 623, 1939; SDC 1939 & Supp 1960, § 37.5509 (6).
21-27-25. Order for temporary custody of person not held under judicial process--Security required of person granted custody.
Where a writ of habeas corpus is granted in proceedings involving the custody of a person not held under judicial process, the court shall have discretion to make a proper order concerning the temporary custody of such person pending final determination of the proceeding or pending appeal and may, as a condition of such order, require from the person granted such custody security, through bond or otherwise, for the production of such person at such time and place as the court orders, and for the safety and well-being of such person during such temporary custody.
Source: Supreme Court Rule 622, 1939; SDC 1939 & Supp 1960, § 37.5508.
21-27-26. Order remanding applicant to custody--Conclusive on second application for writ.
When any person shall be remanded in any habeas corpus proceeding, it shall be the duty of the court or judge remanding him to make out and deliver to the sheriff or other person to whose custody he shall be remanded an order in writing stating the cause or causes of remanding him. If such person shall obtain a second writ of habeas corpus, it shall be the duty of such sheriff, or other person to whom the same shall be directed, to return therewith the order aforesaid, and if it shall appear that such person was remanded for any offense adjudged not bailable, it shall be taken and received as conclusive and the applicant shall be remanded without further proceedings.
Source: CCrimP 1877, § 675; CL 1887, § 7843; RCCrimP 1903, § 775; RC 1919, § 4981; SDC 1939 & Supp 1960, § 37.5505.
21-27-27. Discharge on second writ unlawful where crime charged--Admission to bail or remand to custody.
It shall not be lawful for any court or judge, on a second writ of habeas corpus, to discharge any person, if he is clearly and specifically charged in the warrant of commitment with a criminal offense; but the court or judge shall, on the return of such second writ, have power only to admit such person to bail, where the offense is bailable by law, or remand him to prison where the offense is not bailable, or where such person shall fail to give the bail required.
Source: CCrimP 1877, § 676; CL 1887, § 7844; RCCrimP 1903, § 776; RC 1919, § 4982; SDC 1939 & Supp 1960, § 37.5505.
21-27-28. Second imprisonment on same cause prohibited after discharge on writ--Circumstances justifying second imprisonment.
No person who has been discharged by order of a court or judge upon a writ of habeas corpus shall be again imprisoned, restrained, or kept in custody for the same cause, unless he be afterward prosecuted for the same offense; nor unless by the legal order or process of the court wherein he is bound by recognizance to appear. The following shall not be deemed to be the same cause:
(1) If after a discharge for a defect of proof, or on any material defect in the commitment in a criminal case, such person should be again arrested on sufficient proof, and committed by legal process for the same offense;
(2) If in a civil suit such person has been discharged for any illegality in the judgment or process, and is afterward imprisoned by legal process for the same cause of action;
(3) Generally, whenever the discharge has been ordered on account of the nonobservance of any of the forms required by law, such person may be a second time imprisoned, if the cause be legal, and the forms required by law observed.
Source: CCrimP 1877, § 677; CL 1887, § 7845; RCCrimP 1903, § 777; RC 1919, § 4983; SDC 1939 & Supp 1960, § 37.5506.
21-27-29. Forfeiture for new arrest or detention after discharge on writ--Liability for damages unaffected.
Any person who, knowing that another has been discharged by order of a competent judge or tribunal on a writ of habeas corpus, shall, contrary to the provisions of this chapter, arrest or detain him again for the same cause which was shown on the return of such writ, shall forfeit to the prisoner or person aggrieved five hundred dollars for the first offense and one thousand dollars for every subsequent offense. Recovery of the penalties provided herein shall be no bar to a civil suit for damages.
Source: CCrimP 1877, §§ 685, 688; CL 1887, §§ 7853, 7856; RCCrimP 1903, §§ 785, 788; RC 1919, §§ 4989, 4990; SDC 1939 & Supp 1960, § 37.5507.
21-28-1
Civil action available in lieu of writ and proceedings by information.
21-28-2
Persons entitled to bring action--Grounds for action.
21-28-3
Designation of parties plaintiff.
21-28-4
Relator joined with state as party--Security required to indemnify state.
21-28-5
Joinder of several claimants as defendants.
21-28-6
Name of person entitled to office set forth in complaint.
21-28-7
Arrest and holding to bail of defendant who has received emoluments of office.
21-28-8
Judgment on defendant's right to office and right of person allegedly entitled.
21-28-9
Execution of office by person adjudged to be entitled--Demand of books and papers
from defendant.
21-28-10
Failure to deliver books and papers to successful claimant as misdemeanor--Proceedings to compel delivery.
21-28-11
Action for damages by successful claimant of office.
21-28-12
Action to vacate corporate charter or articles--Persons entitled to bring action--Grounds.
21-28-13
Leave to bring action against corporation--Notice and hearing of corporation and
officers.
21-28-14
Duty of state's attorney to bring action against corporation--Security to indemnify
state.
21-28-15
Judgment for dissolution of corporation.
21-28-16
Costs awarded in action against corporation--Collection from directors or officers.
21-28-17
Injunction, receivership, and distribution on judgment against corporation.
21-28-18
Recording by secretary of state of judgment against corporation.
21-28-19
Judgment of exclusion against claimant to office or corporation--Costs--Pecuniary
penalty.
21-28-20
Action for recovery of property forfeited to state.
21-28-1. Civil action available in lieu of writ and proceedings by information.
The remedies formerly attained by a writ of scire facias, writ of quo warranto, and proceedings by information in the nature of quo warranto, may be obtained by civil actions under the provisions of this chapter.
Source: CCivP 1877, § 531; CL 1887, § 5345; RCCivP 1903, § 570; RC 1919, § 2781; SL 1919, ch 289, § 1; SDC 1939 & Supp 1960, § 37.0501.
21-28-2. Persons entitled to bring action--Grounds for action.
An action may be brought by any state's attorney in the name of the state, upon his own information or upon the complaint of a private party, or an action may be brought by any person who has a special interest in the action, on leave granted by the circuit court or judge thereof, against the party offending in the following cases:
(1) When any person shall usurp, intrude into, or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state;
(2) When any public officer, civil or military, shall have done or suffered an act which, by the provisions of law, shall make a forfeiture of his office;
(3) When any association or number of persons shall act within this state as a corporation, without being duly incorporated.
Source: CCivP 1877, § 534; CL 1887, § 5348; RCCivP 1903, § 573; RC 1919, § 2784; SL 1919, ch 289, § 4; SDC 1939 & Supp 1960, § 37.0509.
21-28-3. Designation of parties plaintiff.
When the action described by § 21-28-1 is prosecuted by the state's attorney, the State of South Dakota shall be plaintiff; when it is prosecuted by a private person, such person shall be the plaintiff therein and the proceedings in such action shall be the same as in an action by a private person except as otherwise specially provided.
Source: SL 1919, ch 289, § 1; SDC 1939 & Supp 1960, § 37.0501.
21-28-4. Relator joined with state as party--Security required to indemnify state.
When an action shall be brought by the state's attorney by virtue of this chapter, on the relation or information of a person having an interest in the question, the name of such person shall be joined with the state as relator, and in every such case the state's attorney may require, as a condition for bringing such action, that satisfactory security shall be given to indemnify the state against costs and expenses to be incurred thereby.
Source: CCivP 1877, § 535; CL 1887, § 5349; RCCivP 1903, § 574; RC 1919, § 2785; SDC 1939 & Supp 1960, § 37.0511.
21-28-5. Joinder of several claimants as defendants.
Where several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise.
Source: CCivP 1877, § 541; CL 1887, § 5355; RCCivP 1903, § 580; RC 1919, § 2791; Supreme Court Rule 561, 1939; SDC 1939 & Supp 1960, § 37.0512.
21-28-6. Name of person entitled to office set forth in complaint.
Whenever such action shall be brought against a person for usurping an office, the state's attorney or person having a special interest in the action, in addition to the statement of the cause of action, may also set forth in the complaint, the name of the person rightfully entitled to the office, with a statement of his right thereto.
Source: CCivP 1877, § 536; CL 1887, § 5350; RCCivP 1903, § 575; RC 1919, § 2786; SL 1919, ch 289, § 5; SDC 1939 & Supp 1960, § 37.0510.
21-28-7. Arrest and holding to bail of defendant who has received emoluments of office.
In an action against a person for usurping an office, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office and by means of his usurpation thereof, an order may be granted by a judge of the court for the arrest of such defendant, and holding him to bail; and thereupon he shall be arrested and held to bail, in the manner and with the same effect, and subject to the same rights and liabilities as in other civil actions where the defendant is subject to arrest.
Source: CCivP 1877, § 536; CL 1887, § 5350; RCCivP 1903, § 575; RC 1919, § 2786; SL 1919, ch 289, § 5; SDC 1939 & Supp 1960, § 37.0510.
21-28-8. Judgment on defendant's right to office and right of person allegedly entitled.
In every such case judgment shall be rendered upon the right of the defendant, and also upon the right of the party alleged to be entitled as provided by § 21-28-6, or only upon the right of the defendant, as justice shall require.
Source: CCivP 1877, § 537; CL 1887, § 5351; RCCivP 1903, § 576; RC 1919, § 2787; SDC 1939 & Supp 1960, § 37.0513.
21-28-9. Execution of office by person adjudged to be entitled--Demand of books and papers from defendant.
If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office; and it shall be his duty immediately thereafter, to demand of the defendant in the action all the books and papers in his custody or within his control belonging to the office from which he shall have been excluded.
Source: CCivP 1877, § 538; CL 1887, § 5352; RCCivP 1903, § 577; RC 1919, § 2788; SDC 1939 & Supp 1960, § 37.0514.
21-28-10. Failure to deliver books and papers to successful claimant as misdemeanor--Proceedings to compel delivery.
No person shall refuse or neglect to deliver the books or papers of any office pursuant to the demand of the successful claimant to the office after the judgment in such action. The same proceedings shall be had and with the same effect to compel delivery of such books and papers as may be otherwise prescribed by law. A violation of this section is a Class 2 misdemeanor.
Source: CCivP 1877, § 539; CL 1887, § 5353; RCCivP 1903, § 578; RC 1919, § 2789; SDC 1939 & Supp 1960, §§ 37.0516, 37.9901; SL 1979, ch 150, § 27.
21-28-11. Action for damages by successful claimant of office.
If judgment be rendered upon the right of the person so alleged to be entitled, in favor of such person, he may recover, by action, the damages which he shall have sustained by reason of the usurpation by the defendant of the office from which such defendant has been excluded.
Source: CCivP 1877, § 540; CL 1887, § 5354; RCCivP 1903, § 579; RC 1919, § 2790; SDC 1939 & Supp 1960, § 37.0515.
21-28-12. Action to vacate corporate charter or articles--Persons entitled to bring action--Grounds.
An action may be brought by any state's attorney in the name of the state or by any person who has a special interest in the action, on leave granted by the circuit court or judge thereof, for the purpose of vacating the charter or articles of incorporation, or for annulling the existence of corporations other than municipal, whenever such corporation shall:
(1) Offend against any of the laws creating, altering, or renewing such corporation;
(2) Violate the provisions of any law, by which such corporation shall have forfeited its charter or articles of incorporation by abuse of its power;
(3) Have forfeited its privileges of franchises by a failure to exercise its powers;
(4) Have done or omitted any act which amounts to a surrender of its corporate rights, privileges, and franchises;
(5) Exercise a franchise or privilege not conferred upon it by law.
Source: CCivP 1877, § 532; CL 1887, § 5346; RCCivP 1903, § 571; RC 1919, § 2782; SL 1919, ch 289, § 2; SDC 1939 & Supp 1960, § 37.0502.
21-28-13. Leave to bring action against corporation--Notice and hearing of corporation and officers.
Leave to bring the action may be granted upon the application of any state's attorney or of any person who has a special interest in the action, and the court or judge may, at its discretion, direct notice of such application to be given to the corporation or its officers, previous to granting such leave, and may hear the corporation in opposition thereto.
Source: CCivP 1877, § 533; CL 1887, § 5347; RCCivP 1903, § 572; RC 1919, § 2783; SL 1919, ch 289, § 3; SDC 1939 & Supp 1960, § 37.0503.
21-28-14. Duty of state's attorney to bring action against corporation--Security to indemnify state.
It shall be the duty of any state's attorney, whenever he shall have reason to believe that any of the acts or omissions described in § 21-28-12 can be established by proof, to apply for leave, and upon leave granted, to bring an action in every case of public interest and also in every other case in which security shall be given to indemnify the state against the costs and expenses to be incurred thereby.
Source: CCivP 1877, § 532; CL 1887, § 5346; RCCivP 1903, § 571; RC 1919, § 2782; SL 1919, ch 289, § 2; SDC 1939 & Supp 1960, § 37.0502.
21-28-15. Judgment for dissolution of corporation.
If it shall be adjudged that a corporation against which an action shall have been brought, pursuant to this chapter, has by neglect, abuse, or surrender, forfeited its corporate rights, privileges, and franchises, judgment shall be rendered that the corporation be excluded from such corporate rights, privileges, and franchises, and that the corporation be dissolved.
Source: CCivP 1877, § 543; CL 1887, § 5357; RCCivP 1903, § 582; RC 1919, § 2793; SDC 1939 & Supp 1960, § 37.0504.
21-28-16. Costs awarded in action against corporation--Collection from directors or officers.
If judgment be rendered in such action against a corporation or against a person claiming to be a corporation, the court may cause the costs therein to be collected by execution against the person claiming to be a corporation, or by attachment or process against the directors or other officers of such corporation.
Source: CCivP 1877, § 544; CL 1887, § 5358; RCCivP 1903, § 583; RC 1919, § 2794; SDC 1939 & Supp 1960, § 37.0505.
21-28-17. Injunction, receivership, and distribution on judgment against corporation.
When such judgment shall be rendered against a corporation, the court has power to restrain the corporation, to appoint a receiver of its property, and to take an account and make distribution thereof among its creditors; and the state's attorney must, immediately after the rendition of such judgment, institute proceedings for that purpose.
Source: CCivP 1877, § 545; CL 1887, § 5359; RCCivP 1903, § 584; RC 1919, § 2795; SDC 1939 & Supp 1960, § 37.0506.
21-28-18. Recording by secretary of state of judgment against corporation.
Upon the rendition of such judgment against a corporation, the state's attorney must cause a copy of the judgment to be forthwith filed in the Office of the Secretary of State, whose duty it shall be to record the same.
Source: CCivP 1877, § 546; CL 1887, § 5360; RCCivP 1903, § 585; RC 1919, § 2796; SDC 1939 & Supp 1960, § 37.0507.
21-28-19. Judgment of exclusion against claimant to office or corporation--Costs--Pecuniary penalty.
When a defendant, whether a natural person or a corporation, against whom a civil action authorized by this chapter shall have been brought shall be adjudged guilty of usurping or intruding into, or unlawfully holding or exercising any office, franchise, or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise, or privilege, and also that the plaintiff recover costs against such defendant. The court may also, in its discretion, assess a penalty not exceeding five hundred dollars against the defendant which penalty may be collected as a part of the judgment and the defendant shall be subject to body execution for collection of the same, and which when collected shall be paid into the treasury of the state.
Source: CCivP 1877, § 542; CL 1887, § 5356; RCCivP 1903, § 581; RC 1919, § 2792; SDC 1939 & Supp 1960, § 37.0517.
21-28-20. Action for recovery of property forfeited to state.
Whenever, by the provisions of law, any property, real or personal, shall be forfeited to the state, or to any officer for its use, an action for the recovery of such property, alleging the ground of the forfeiture, may be brought by the state's attorney in the circuit court for the county where the property is situated.
Source: CCivP 1877, § 547; CL 1887, § 5361; RCCivP 1903, § 586; RC 1919, § 2797; SDC 1939 & Supp 1960, § 37.0508.
21-29-1
Power to issue writ--Purposes for which used.
21-29-2
Writ issued when ordinary remedy inadequate--Application and affidavit.
21-29-3
Alternative and peremptory writs--Terms of writ.
21-29-4
Grant of writ on default prohibited.
21-29-5
Alternative writ issued without notice--Minimum notice required for peremptory
writ.
21-29-6
Service of writ--Service on majority of board.
21-29-7
Answer to show cause against writ.
21-29-8
Hearing by court when no answer made or no questions of fact raised.
21-29-9
Objections and proof countervailing answer introduced by applicant at trial.
21-29-10
Discretionary jury trial and postponement--Statement of question to be tried--Assessment of damages.
21-29-11
Verdict transmitted to court--Hearing on application.
21-29-12
Elements included in judgment.
21-29-13
Motion for new trial.
21-29-14
Fine for disobedience of peremptory writ--Imprisonment on persistent disobedience.
21-29-1. Power to issue writ--Purposes for which used.
The writ of mandamus may be issued by the Supreme and circuit courts, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person.
Source: CCivP 1877, § 695; CL 1887, § 5517; RCCivP 1903, § 764; RC 1919, § 3006; SDC 1939 & Supp 1960, § 37.4501.
21-29-2. Writ issued when ordinary remedy inadequate--Application and affidavit.
The writ of mandamus must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon affidavit, upon the application of the party beneficially interested.
Source: CCivP 1877, § 696; CL 1887, § 5518; RCCivP 1903, § 765; RC 1919, § 3007; SDC 1939 & Supp 1960, § 37.4502.
21-29-3. Alternative and peremptory writs--Terms of writ.
The writ of mandamus may be either alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party, immediately upon the receipt of the writ, or at some other specified time, to do the act required to be performed, or to show cause before the court, at a specified time and place, why he has not done so. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done the command, must be omitted, and a return day inserted.
Source: CCivP 1877, § 697; CL 1887, § 5519; RCCivP 1903, § 766; RC 1919, § 3008; Supreme Court Rule 611, 1939; SDC 1939 & Supp 1960, § 37.4503.
21-29-4. Grant of writ on default prohibited.
The writ of mandamus cannot be granted by default. The case must be heard by the court, whether the adverse party appear or not.
Source: CCivP 1877, § 698; CL 1887, § 5520; RCCivP 1903, § 767; RC 1919, § 3009; Supreme Court Rule 611, 1939; SDC 1939 & Supp 1960, § 37.4503.
21-29-5. Alternative writ issued without notice--Minimum notice required for peremptory writ.
When the application for writ of mandamus to the court is made without notice to the adverse party, and the writ be allowed, the alternative writ must be first issued; but if the application be upon due notice, and the writ be allowed, the peremptory writ may be issued in the first instance. The notice of the application, when given, must be at least ten days.
Source: CCivP 1877, § 698; CL 1887, § 5520; RCCivP 1903, § 767; RC 1919, § 3009; Supreme Court Rule 611, 1939; SDC 1939 & Supp 1960, § 37.4503.
21-29-6. Service of writ--Service on majority of board.
The writ of mandamus must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the court. Service upon a majority of the members of any board or body is service upon the board or body, whether at the time of the service the board was in session or not.
Source: CCivP 1877, § 706; CL 1887, § 5528; RCCivP 1903, § 775; RC 1919, § 3017; SDC 1939 & Supp 1960, § 37.4504.
21-29-7. Answer to show cause against writ.
On the return of the alternative writ of mandamus, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may show cause by answer, under oath, made in the same manner as an answer to a complaint in a civil action.
Source: CCivP 1877, § 699; CL 1887, § 5521; RCCivP 1903, § 768; RC 1919, § 3010; Supreme Court Rule 612, 1939; SDC 1939 & Supp 1960, § 37.4505.
21-29-8. Hearing by court when no answer made or no questions of fact raised.
If no answer be made, the case must be heard on the papers of the applicant. If the answer raises only questions of law, or puts in issue only immaterial statements, not affecting the substantial rights of the parties, the court must proceed to hear, or fix a day for hearing the case.
Source: CCivP 1877, § 704; CL 1887, § 5526; RCCivP 1903, § 773; RC 1919, § 3015; Supreme Court Rule 613, 1939; SDC 1939 & Supp 1960, § 37.4506.
21-29-9. Objections and proof countervailing answer introduced by applicant at trial.
On the trial the applicant is not precluded by the answer from any valid objection to its sufficiency and may countervail it by proof, either in direct denial or by way of avoidance.
Source: CCivP 1877, § 701; CL 1887, § 5523; RCCivP 1903, § 770; RC 1919, § 3012; Supreme Court Rule 614, 1939; SDC 1939 & Supp 1960, § 37.4507.
21-29-10. Discretionary jury trial and postponement--Statement of question to be tried--Assessment of damages.
If an answer be made which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of which allegation the application for the writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the hearing until such trial can be had and the verdict certified to the court. The question to be tried must be distinctly stated in the order for trial, and the county must be designated in which the same shall be had. The order may also direct the jury to assess any damages which the applicant may have sustained, in case they find for him.
Source: CCivP 1877, § 700; CL 1887, § 5522; RCCivP 1903, § 769; RC 1919, § 3011; Supreme Court Rule 615, 1939; SDC 1939 & Supp 1960, § 37.4508.
21-29-11. Verdict transmitted to court--Hearing on application.
If no notice of a motion for a new trial be given or, if given, the motion be denied, the clerk, within five days after rendition of the verdict or denial of the motion, must transmit to the court in which the application for the writ is pending a certified copy of the verdict attached to the order of trial, after which either party may bring on the hearing on the application, upon reasonable notice to the adverse party.
Source: CCivP 1877, § 703; CL 1887, § 5525; RCCivP 1903, § 772; RC 1919, § 3014; Supreme Court Rule 616, 1939; SDC 1939 & Supp 1960, § 37.4509.
21-29-12. Elements included in judgment.
If judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury or as may be determined by the court or referee, upon a reference to be ordered, together with costs; and for such damages and costs execution may issue; and a peremptory mandamus must also be awarded without delay. If judgment shall be for the defendant, costs in his favor shall be taxed as a part thereof.
Source: CCivP 1877, § 705; CL 1887, § 5527; RCCivP 1903, § 774; RC 1919, § 3016; SDC 1939 & Supp 1960, § 37.4510.
21-29-13. Motion for new trial.
The motion for a new trial must be made in the court in which the issue of fact is made.
Source: CCivP 1877, § 702; CL 1887, § 5524; RCCivP 1903, § 771; RC 1919, § 3013; SDC 1939 & Supp 1960, § 37.4511.
21-29-14. Fine for disobedience of peremptory writ--Imprisonment on persistent disobedience.
When a peremptory mandamus has been issued and directed to any inferior tribunal, corporation, board, or person, if it appear to the court that any member of such tribunal, corporation, board, or any person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the same, the court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ.
Source: CCivP 1877, § 707; CL 1887, § 5529; RCCivP 1903, § 776; RC 1919, § 3018; SDC 1939 & Supp 1960, § 37.4512.
21-30-1
Counterpart of mandamus--Purposes for which writ used.
21-30-2
Power to issue writ where ordinary remedy inadequate.
21-30-3
Affidavit and application for writ.
21-30-4
Alternative and peremptory writs--Terms of writ.
21-30-5
Proceedings as for mandamus.
21-30-1. Counterpart of mandamus--Purposes for which writ used.
The writ of prohibition is the counterpart of the writ of mandamus. It arrests the proceedings, administrative or judicial, of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person, or are without or in excess of the powers of authority conferred by law upon such tribunal, corporation, board, or person.
Source: CCivP 1877, § 708; CL 1887, § 5530; RCCivP 1903, § 777; RC 1919, § 3019; SL 1921, ch 424; SDC 1939 & Supp 1960, § 37.4401.
21-30-2. Power to issue writ where ordinary remedy inadequate.
The writ of prohibition may be issued by the Supreme and circuit courts, to an inferior tribunal, or to a corporation, board, or person, in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law.
Source: CCivP 1877, § 709; CL 1887, § 5531; RCCivP 1903, § 778; RC 1919, § 3020; SDC 1939 & Supp 1960, § 37.4402.
21-30-3. Affidavit and application for writ.
The writ of prohibition may be issued upon affidavit on application of the person beneficially interested.
Source: CCivP 1877, § 709; CL 1887, § 5531; RCCivP 1903, § 778; RC 1919, § 3020; Supreme Court Rule 608, 1939; SDC 1939 & Supp 1960, § 37.4403.
21-30-4. Alternative and peremptory writs--Terms of writ.
The writ of prohibition must be alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party to desist or refrain from further proceedings in the action or matter specified therein, until further order of the court from which it is issued, and to show cause before such court, at a specified time and place, why such party should not be absolutely restrained from any further proceedings in such action or matter. The peremptory writ must be in a similar form, except that the words requiring the party to show cause why he should not be absolutely restrained must be omitted and a return day inserted.
Source: CCivP 1877, § 710; CL 1887, § 5532; RCCivP 1903, § 779; RC 1919, § 3021; Supreme Court Rule 609, 1939; SDC 1939 & Supp 1960, § 37.4404.
21-30-5. Proceedings as for mandamus.
The provisions for proceedings in mandamus apply to this proceeding, except where inconsistent therewith.
Source: CCivP 1877, § 711; CL 1887, § 5533; RCCivP 1903, § 780; RC 1919, § 3022; Supreme Court Rule 610, 1939; SDC 1939 & Supp 1960, § 37.4405.
21-31-1
Power to grant writ--Purposes for which used.
21-31-2
Application for writ on affidavit--Notice to adverse party--Order to show cause.
21-31-3
Agency or person to whom writ directed.
21-31-4
Direction to certify record--Stay of proceedings.
21-31-5
Omission of stay of proceedings discretionary with court.
21-31-6
Service of writ.
21-31-7
Further return if return of writ defective--Hearing and judgment by court.
21-31-8
Scope of review on writ.
21-31-9
Judgment roll.
21-31-10
Transmittal of judgment to inferior court or agency.
21-31-1. Power to grant writ--Purposes for which used.
A writ of certiorari may be granted by the Supreme and circuit courts, when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy.
Source: CCivP 1877, § 685; CL 1887, § 5507; RCCivP 1903, § 754; RC 1919, § 2996; SDC 1939 & Supp 1960, § 37.0401.
21-31-2. Application for writ on affidavit--Notice to adverse party--Order to show cause.
The application for a writ of certiorari must be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.
Source: CCivP 1877, § 686; CL 1887, § 5508; RCCivP 1903, § 755; RC 1919, § 2997; Supreme Court Rule 556, 1939; SDC 1939 & Supp 1960, § 37.0402.
21-31-3. Agency or person to whom writ directed.
The writ of certiorari may be directed to the inferior court, tribunal, board, or officer, or to any other person having the custody of the records or proceedings to be certified.
Source: CCivP 1877, § 687; CL 1887, § 5509; RCCivP 1903, § 756; RC 1919, § 2998; Supreme Court Rule 557, 1939; SDC 1939 & Supp 1960, § 37.0403.
21-31-4. Direction to certify record--Stay of proceedings.
The writ of certiorari shall command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, and annex to the writ a transcript of the record and proceedings, describing or referring to them, with convenient certainty, that the same may be reviewed by the court, and requiring the party in the meantime, to desist from further proceedings in the matter to be reviewed.
Source: CCivP 1877, § 688; CL 1887, § 5510; RCCivP 1903, § 757; RC 1919, § 2999; Supreme Court Rule 588, 1939; SDC 1939 & Supp 1960, § 37.0404.
21-31-5. Omission of stay of proceedings discretionary with court.
If a stay of proceedings be not intended, the words requiring the stay must be omitted from the writ of certiorari; these words may be inserted or omitted, in the sound discretion of the court, but if omitted, the power of the inferior court or officer is not suspended or the proceedings stayed.
Source: CCivP 1877, § 689; CL 1887, § 5511; RCCivP 1903, § 758; RC 1919, § 3000; Supreme Court Rule 559, 1939; SDC 1939 & Supp 1960, § 37.0405.
21-31-6. Service of writ.
The writ of certiorari must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by the court.
Source: CCivP 1877, § 690; CL 1887, § 5512; RCCivP 1903, § 759; RC 1919, § 3001; Supreme Court Rule 560, 1939; SDC 1939 & Supp 1960, § 37.0406.
21-31-7. Further return if return of writ defective--Hearing and judgment by court.
If the return of the writ of certiorari be defective the court may order a further return to be made. When a full return has been made the court must hear the parties, or such of them as may attend for that purpose, and may thereupon, give judgment either affirming or annulling or modifying the proceedings below.
Source: CCivP 1877, § 692; CL 1887, § 5514; RCCivP 1903, § 761; RC 1919, § 3003; SDC 1939 & Supp 1960, § 37.0408.
21-31-8. Scope of review on writ.
The review upon writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board, or officer, has regularly pursued the authority of such court, tribunal, board, or officer.
Source: CCivP 1877, § 691; CL 1887, § 5513; RCCivP 1903, § 760; RC 1919, § 3002; SDC 1939 & Supp 1960, § 37.0407.
21-31-9. Judgment roll.
A copy of the judgment, signed by the clerk, entered upon or attached to the writ and return, constitute the judgment roll.
Source: CCivP 1877, § 694; CL 1887, § 5516; RCCivP 1903, § 763; RC 1919, § 3005; SDC 1939 & Supp 1960, § 37.0410.
21-31-10. Transmittal of judgment to inferior court or agency.
A copy of the judgment, signed by the clerk, must be transmitted to the inferior court, tribunal, board, or officer, having the custody of the record or proceeding certified up.
Source: CCivP 1877, § 693; CL 1887, § 5515; RCCivP 1903, § 762; RC 1919, § 3004; SDC 1939 & Supp 1960, § 37.0409.
21-32-1
Office of Commissioner of Claims created--Appointment of circuit judge to act.
21-32-2
Limitation of actions on claims against the state.
21-32-3
Filing of petition on claim for which no appointment--Certification to presiding
circuit judge--Appointment of commissioner--Filing if claim arose, or petitioner
resides, out of state.
21-32-4
Service of petition on attorney general--Answer and defense by attorney general.
21-32-5
Time and place fixed for hearing claim--Notice to attorney general.
21-32-6
Evidence received at hearing on claim--Adjournment of hearing.
21-32-7
Filing of commissioner's findings on claim against the state--Submission to Governor
and Legislature--Findings advisory only.
21-32-8
State as defendant in actions involving property.
21-32-9
Service on attorney general in property action involving state--Appearance and
representation of state.
21-32-10
Original action in Supreme Court on claim disallowed by state auditor--Filing of
complaint.
21-32-11
Undertaking for costs filed by plaintiff in Supreme Court action.
21-32-12
Service of complaint and notice to plead on attorney general--Pleading by attorney
general.
21-32-13
Trial of action in Supreme Court.
21-32-14
Execution not issued against state--Judgment certified to state auditor--Payment of
damages.
21-32-15
Liability insurance--Purchase by state.
21-32-16
Waiver of immunity to extent of insurance coverage--Consent to suit.
21-32-17
Immunity of state officers, employees, and agents.
21-32-18
Service on attorney general required for waiver--Judgment void without service.
21-32-19
Payment of certain medical and property damage claims against state--Rules.
21-32-20
Sovereign immunity not waived.
21-32-21
Effectiveness of § 21-32-19.
21-32-1. Office of Commissioner of Claims created--Appointment of circuit judge to act.
There is hereby created the Office of Commissioner of Claims. The presiding circuit judge for the county in this state in which an alleged claim on contract or tort against the state has arisen shall appoint a circuit judge from the circuit for the county in which the action arose lies to act ex officio as the commissioner.
Source: SL 1947, ch 156, § 1; SDC Supp 1960, § 33.4301; SL 1978, ch 157, § 1.
21-32-2. Limitation of actions on claims against the state.
Action on any claim on contract or tort against the state shall be commenced within one year after same has arisen.
Source: SL 1947, ch 156, § 7; SDC Supp 1960, § 33.4307.
21-32-3. Filing of petition on claim for which no appointment--Certification to presiding circuit judge--Appointment of commissioner--Filing if claim arose, or petitioner resides, out of state.
Upon the filing with the clerk of courts of the county in which such claim arose of a petition in form of a complaint duly verified, setting forth, among other things that the petitioner has a just and meritorious claim against the State of South Dakota for the payment of which no appropriation exists, the clerk of courts, upon payment of his fees, shall certify under his seal to the presiding circuit judge of the circuit in which such county lies the said petition whereupon the said presiding circuit judge shall appoint a circuit judge who shall act as such commissioner of claims as provided in this chapter. If the claim arose, or was otherwise reduced to judgment, in a jurisdiction outside of South Dakota, the petition shall be filed with the clerk of courts of the county where the petitioner resides or, if the petitioner does not reside in South Dakota, with the clerk of courts of Hughes County.
Source: SL 1947, ch 156, § 2; SDC Supp 1960, § 33.4302; SL 1978, ch 157, § 2; SL 1992, ch 167.
21-32-4. Service of petition on attorney general--Answer and defense by attorney general.
Within five days after the filing of said petition with the clerk of courts the petitioner shall cause to be served upon the attorney general of the state, in the manner required for service of a summons in civil actions, a certified copy of such petition. Within thirty days after the service of such petition the attorney general may file with the clerk of courts his answer thereto; provided, the failure of the attorney general to file an answer shall not preclude him from participating in any hearing herein provided for and urging any defense or objection thereto he may deem proper.
Source: SL 1947, ch 156, § 3; SDC Supp 1960, § 33.4303.
21-32-5. Time and place fixed for hearing claim--Notice to attorney general.
At any time after thirty days after the service of such petition upon the attorney general and upon ten days' notice by either party the commissioner shall fix a time and place for hearing said claim, due notice of which shall at least ten days prior to the day fixed for hearing be given in writing to the attorney general.
Source: SL 1947, ch 156, § 4; SDC Supp 1960, § 33.4304.
21-32-6. Evidence received at hearing on claim--Adjournment of hearing.
At such hearing the commissioner shall hear and consider evidence in support or in opposition to such claim. The testimony presented at such hearing shall be under oath and such hearing may be adjourned from time to time as the commissioner may deem necessary to afford the persons interested a full opportunity to present all of the necessary, relevant, and pertinent facts in connection with the merits of such claim in conformity with the rules of evidence in civil proceedings.
Source: SL 1947, ch 156, § 5; SDC Supp 1960, § 33.4305.
21-32-7. Filing of commissioner's findings on claim against the state--Submission to Governor and Legislature--Findings advisory only.
After the conclusion of such hearing, the commissioner shall prepare his findings, fully itemized, in respect to the amount of the claim or damages. Such findings shall be filed in the office of the clerk of courts of the county in which the petition was filed and a duplicate thereof filed in the Office of the Governor, who shall submit the same to the next session of the Legislature for consideration, compromise, settlement, or rejection by appropriate action. The findings of the commissioner shall be advisory only, and shall not be construed or considered as an acknowledgment of liability in any manner or extent on the part of the state.
Source: SL 1947, ch 156, § 6; SDC Supp 1960, § 33.4306.
21-32-8. State as defendant in actions involving property.
In any and all actions to determine adverse claims to real or personal property, or involving the possession of real or personal property, or to foreclose mortgages or other liens upon real or personal property, or to partition the same, the State of South Dakota may be sued and made defendant in the courts of this state.
Source: SL 1919, ch 156, § 1; SL 1923, ch 141; SDC 1939 & Supp 1960, § 33.0403.
21-32-9. Service on attorney general in property action involving state--Appearance and representation of state.
When the State of South Dakota is made defendant pursuant to § 21-32-8, service shall be made upon it by the service of a copy of the summons and complaint upon the attorney general, who shall represent the state in the action and protect its rights and interest, if any it has in said real or personal property and he may require the state's attorney of the county where said property is situated to assist him in such litigation.
Source: SL 1919, ch 156, § 2; SL 1923, ch 141; SDC 1939 & Supp 1960, § 33.0403.
21-32-10. Original action in Supreme Court on claim disallowed by state auditor--Filing of complaint.
It shall be competent for any person deeming himself aggrieved by the refusal of the state auditor to allow any just claim against the state, to commence an action against the state by filing with the clerk of the Supreme Court in accordance with chapter 15-25 a complaint setting forth fully and particularly the nature of the claim.
Source: SL 1890, ch 1, § 1; RCCivP 1903, § 25; RC 1919, § 2109; SDC 1939 & Supp 1960, § 33.0604.
21-32-11. Undertaking for costs filed by plaintiff in Supreme Court action.
At the time a complaint is filed pursuant to § 21-32-10, the plaintiff shall file an undertaking in the penal sum of five hundred dollars, with two or more sureties, to be approved by the state treasurer, to the effect that he will indemnify the state against all costs that may accrue in such action, and pay to the clerk of the Supreme Court all costs in case he shall fail to prosecute his action, or to obtain a judgment against the state; and thereupon the action shall be placed upon the calendar of said court.
Source: SL 1890, ch 1, § 1; RCCivP 1903, § 25; RC 1919, § 2109; SDC 1939 & Supp 1960, § 33.0604.
21-32-12. Service of complaint and notice to plead on attorney general--Pleading by attorney general.
The plaintiff, within ten days after having filed the complaint and undertaking, pursuant to §§ 21-32-10 and 21-32-11, shall serve a copy of the complaint upon the attorney general and the state auditor, together with a notice to plead or answer thereto within thirty days after the service of such complaint and notice, exclusive of the day of service; and the attorney general shall thereupon be required to answer or plead within the time specified in such notice.
Source: SL 1890, ch 1, § 2; RCCivP 1903, § 26; SL 1913, ch 166; RC 1919, § 2110; SDC 1939 & Supp 1960, § 33.0604.
21-32-13. Trial of action in Supreme Court.
The trial of such action shall be conducted in accordance with chapter 15-25 and any special rule or order made for trial of the particular case by the Supreme Court.
Source: SL 1890, ch 1, § 3; RCCivP 1903, § 27; RC 1919, § 2111; SDC 1939 & Supp 1960, § 33.0604.
21-32-14. Execution not issued against state--Judgment certified to state auditor--Payment of damages.
No execution shall issue against the state on any judgment, but whenever final judgment against the state shall have been obtained in any action under §§ 21-32-10 to 21-32-13, inclusive, the clerk of the Supreme Court shall make and furnish to the state auditor a duly certified transcript of such judgment, and the auditor shall thereupon audit the amount of damages and costs therein awarded, and the same shall be paid out of the state treasury.
Source: SL 1890, ch 1, § 4; RCCivP 1903, § 28; RC 1919, § 2112; SDC 1939 & Supp 1960, § 33.0604.
21-32-15. Liability insurance--Purchase by state.
The State of South Dakota, through the commissioner of human resources and administration, may obtain and pay for public liability insurance to the extent and for the purposes considered expedient by the commissioner for the purpose of insuring the liability of the state, its officers, agents, or employees.
Source: SL 1981, ch 169, § 1; SL 1984, ch 162; SL 2024, ch 1 (Ex. Ord. 24-1), §§ 13, 34, eff. Apr. 8, 2024.
21-32-16. Waiver of immunity to extent of insurance coverage--Consent to suit.
To the extent such liability insurance is purchased pursuant to § 21-32-15 and to the extent coverage is afforded thereunder, the state shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued.
Source: SL 1981, ch 169, § 2.
21-32-17. Immunity of state officers, employees, and agents.
Except as provided in § 21-32-16, any employee, officer, or agent of the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity.
Source: SL 1983, ch 16, § 1.
21-32-18. Service on attorney general required for waiver--Judgment void without service.
In order for waiver of sovereign immunity in § 21-32-16 to be effective in an action against a state official, employee, or agent; notice of the action shall be given to the attorney general as provided in § 15-6-4(d). The attorney general shall within thirty days after the receipt of service, sign and date the admission of service and mail it to the sender. Any judgment rendered in an action involving waiver of sovereign immunity pursuant to § 21-32-16 is void unless service has been made as provided herein.
Source: SL 1984, ch 144, § 2.
21-32-19. Payment of certain medical and property damage claims against state--Rules.
The commissioner of human resources and administration may adopt rules pursuant to chapter 1-26 establishing a policy for the payment of, and may pay for, property damage and medical claims made against the state up to an amount of two thousand dollars. Any rules adopted by the commissioner pursuant to §§ 21-32-19 to 21-32-21, inclusive, shall provide for approval of claims by the attorney general prior to payment, require a release of all claims against the state or any employee or agent thereof arising from the incident, require a written statement of any state employee involved in an incident regarding the facts involved, allow payment only when the settled law of this state would impose liability upon the state or its employee in the absence of governmental or sovereign immunity and provide that any payment be reduced by any amount owed to the state or any of its agencies by the claimant.
Source: SL 1988, ch 183, § 1; SL 2024, ch 1 (Ex. Ord. 24-1), §§ 13, 34, eff. Apr. 8, 2024.
21-32-20. Sovereign immunity not waived.
Neither §§ 21-32-19 to 21-32-21, inclusive, nor any rules promulgated thereunder may be deemed a waiver or alteration of the doctrine of governmental or sovereign immunity.
Source: SL 1988, ch 183, § 1A.
21-32-21. Effectiveness of § 21-32-19.
The provisions of § 21-32-19 and any rules adopted thereunder are not effective while the state participates in the liability coverage program for public entities pursuant to chapter 3-22 or to the extent coverage is afforded under any contract of insurance the state may purchase.
Source: SL 1988, ch 183, § 2.
21-32A-1
Waiver of sovereign immunity to extent of risk sharing pool or insurance coverage.
21-32A-2
Immunity of employees, officers, or agents--Affirmative defense.
21-32A-3
Immunity of public entities--Affirmative defense.
21-32A-1. Waiver of sovereign immunity to extent of risk sharing pool or insurance coverage.
To the extent that any public entity, other than the state, participates in a risk sharing pool or purchases liability insurance and to the extent that coverage is afforded thereunder, the public entity shall be deemed to have waived the common law doctrine of sovereign immunity and shall be deemed to have consented to suit in the same manner that any other party may be sued. The waiver contained in this section and §§ 21-32A-2 and 21-32A-3 is subject to the provisions of § 3-22-17.
Source: SL 1986, ch 175, § 1; SL 1987, ch 163, § 1.
21-32A-2. Immunity of employees, officers, or agents--Affirmative defense.
Except insofar as a public entity, including the state, participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any employee, officer, or agent of the public entity, including the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity. The immunity recognized herein may be raised by way of affirmative defense.
Source: SL 1986, ch 175, § 2; SL 1987, ch 163, § 2; SL 1991, ch 184.
21-32A-3. Immunity of public entities--Affirmative defense.
Except insofar as a public entity participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any public entity is immune from liability for damages whether the function in which it is involved is governmental or proprietary. The immunity recognized herein may be raised by way of affirmative defense.
Source: SL 1986, ch 175, § 3; SL 1987, ch 163, § 3.
21-34-1
Administrative actions enforceable under chapter--Statutory violation defined as
contempt.
21-34-2
Certificate of facts showing violation prepared by officer--Contents.
21-34-3
Judge to whom certificate of facts directed.
21-34-4
Presentation of certificate to judge--Service of process and copy of certificate on
offender.
21-34-5
Procedural matters prescribed by court.
21-34-6
Power of court to compel obedience and punish violations--Maximum penalties.
21-34-7
Officers empowered to serve process and carry out orders of court.
21-34-8
Source of payment for expenses of officials.
21-34-9
Costs awarded.
21-34-10
Remissions, suspension, and purging of contempt.
21-34-11
Reinvoking contempt process on continuing violation.
21-34-12
Judicial power to enforce own order unaffected.
21-34-13
Appeal to Supreme Court.
21-34-14
Stay of execution pending appeal to Supreme Court.
21-34-1. Administrative actions enforceable under chapter--Statutory violation defined as contempt.
Whenever it is provided in any statute in substance to the effect, that the failure to obey the process, subpoena, order, rule, regulation, judgment, or other legal command of any public officer, department, commission, board, or tribunal, or that violation of any statute may be punished as a contempt of court, or that obedience to anything may be commanded or violation of anything punished as a contempt of court and no other method is specifically provided for invoking the contempt process of the court, the same may be done as provided by this chapter.
Source: SDC 1939, § 65.0107.
21-34-2. Certificate of facts showing violation prepared by officer--Contents.
The officer who issued, or the party to a proceeding seeking enforcement of, the process, subpoena, order, rule, regulation, judgment, or other legal command referred to in § 21-34-1 or who is vested with the duty of enforcing the obedience or stopping the violation of the statute, or in case of a department, commission, or board, either the presiding officer thereof or a majority of the members, shall prepare a notarized certificate of the facts showing the obedience which it desires to enforce or the violation which it desires to stop so that the jurisdiction of the court will appear; showing also the date of the occurrence or condition involved, the name, address, and location so far as known of the person against whom it desires to invoke the contempt process; and showing all relevant facts necessary to establish the right and charge and to specify the relief which it desires to obtain by such contempt process.
Source: SDC 1939, § 65.0107; SL 1985, ch 171, § 1.
21-34-3. Judge to whom certificate of facts directed.
The certificate described in § 21-34-2 shall be directed or addressed to the circuit court having jurisdiction over the county in which the events occurred or the condition exists wherein it is desired to enforce obedience or stop violations, or over the county of the residence of the person against whom the contempt process is sought, as the agency, or party seeking to invoke such process may elect.
Source: SDC 1939, § 65.0107; SL 1985, ch 171, § 2.
21-34-4. Presentation of certificate to judge--Service of process and copy of certificate on offender.
The original, and a copy of the certificate for each person against whom contempt process is sought, shall be filed in the office of the clerk of courts of the county in which jurisdiction is laid and shall be served, together with a summons, citation, or order to show cause or similar process requiring the person or persons to appear and answer or show cause at a time and place specified therein, as the court may decide in the same manner as a complaint in a civil proceeding.
Source: SDC 1939, § 65.0107; SL 1985, ch 171, § 3.
21-34-5. Procedural matters prescribed by court.
In any and all cases under this chapter the court shall have jurisdiction to make such orders fixing the procedure, time, and place of hearing, notice to parties, appearances, requirements of pleading, taking evidence by deposition or otherwise, and other administrative details as to it may appear warranted for the purpose of a full hearing and presentation of the facts and laws involved, in person or by counsel, so that the matter may be fairly and correctly determined.
Source: SDC 1939, § 65.0107.
21-34-6. Power of court to compel obedience and punish violations--Maximum penalties.
In any and all cases under this chapter, the court shall have jurisdiction by order, judgment, or decree to compel the obedience or stop or punish the violation which is certified and to fix such time within which obedience may be made or violation stopped and to order, adjudge, or decree and enforce a penalty not exceeding a fine of five thousand dollars or confinement in any county jail or state prison not exceeding one year, or both such fine and imprisonment.
Source: SDC 1939, § 65.0107.
21-34-7. Officers empowered to serve process and carry out orders of court.
All wardens, sheriffs, marshals, policemen, and peace officers of the state shall have jurisdiction to serve the papers, process, and otherwise carry out the orders and process of any court, lawfully made pursuant to the provisions of this chapter.
Source: SDC 1939, § 65.0107.
21-34-8. Source of payment for expenses of officials.
The expenses of officials in making service or performing other legal duties under this chapter for which expense no fee is allowed by law, shall be paid by the county or from the public funds under control of the public officer, department, commission, or board which may be available for the purpose, as the court may order.
Source: SDC 1939, § 65.0107.
21-34-9. Costs awarded.
Costs including attorneys fees may be ordered in the discretion of the court for or against any party involved and paid as other expenses of the proceeding.
Source: SDC 1939, § 65.0107; SL 1985, ch 171, § 4.
21-34-10. Remissions, suspension, and purging of contempt.
An order, judgment, or decree under this chapter may provide for such remissions or suspension of fine and confinement upon performance or purging of the contempt as the court may decide to incorporate therein. Or, the court may make any such remission or suspension thereafter by supplemental order, judgment, or decree as to it may seem warranted.
Source: SDC 1939, § 65.0107.
21-34-11. Reinvoking contempt process on continuing violation.
Nothing contained in this chapter shall prevent reinvoking such contempt process if disobedience or violation continues after payment of the fine or service of the confinement sentence has been completed.
Source: SDC 1939, § 65.0107.
21-34-12. Judicial power to enforce own order unaffected.
Nothing contained in this chapter shall affect or regulate the power of any court to punish contempts of such court for violation of any of its own rules, regulations, orders, judgments, decrees, commands, or judicial functions in cases where such jurisdiction inheres in the court as part of its judicial powers or jurisdiction, or is otherwise given to it as original contempt jurisdiction by statute, but the procedure in such cases shall be according to such inherent jurisdiction or statutory jurisdiction of such court as otherwise provided.
Source: SDC 1939, § 65.0107.
21-34-13. Appeal to Supreme Court.
From any order, judgment, decree, or other command of the court made pursuant to the jurisdiction or in excess of the jurisdiction given to it by this chapter, an appeal may be taken to the Supreme Court of this state within the time and in the manner provided by law for taking appeals from other orders, judgments, decrees, or commands of a circuit court.
Source: SDC 1939, § 65.0107.
21-34-14. Stay of execution pending appeal to Supreme Court.
Stay of execution in cases appealed pursuant to § 21-34-13 shall be in the discretion of the circuit court, but subject to right of application by any party interested to the Supreme Court on the matter of such stay of execution for such modification of any order granting or refusing the same as to the Supreme Court may seem warranted.
Source: SDC 1939, § 65.0107.
CHAPTER 21-35
CONDEMNATION UNDER POWER OF EMINENT DOMAIN
21-35-1 Condemnors covered by chapter--Petition for ascertainment of compensation by jury.
21-35-1.1 Trans-state transmission line construction--Eminent domain.
21-35-2 Contents of petition for ascertainment of compensation.
21-35-3 Amendment of petition and notice.
21-35-4 Verification of petition--Statement of good faith.
21-35-5 Attachment of document authorizing condemnation.
21-35-6 Additional pleadings not required.
21-35-7 Interpleader of adverse claimants to compensation.
21-35-8 Notice of pendency of action filed with register of deeds--Effect of recording.
21-35-9 Summons to defendants--Contents.
21-35-10 Publication of summons to unknown or nonresident owners--Personal service outside state.
21-35-10.1 Hearing on right to take--Time for demand--Waiver of right to question necessity--Finding of necessity as binding.
21-35-11 Offer to deposit compensation with clerk--Evidence of offer not admissible--Costs avoided.
21-35-11.1 Mediation.
21-35-12 Order to summon jury on default.
21-35-13 Special term of court for jury trial--Challenge of jurors--Conduct of trial--Default by plaintiff.
21-35-14 Continuance of proceedings as to defendants not served.
21-35-15 Issue tried by jury.
21-35-16 View of premises by jury.
21-35-17 Benefits of municipal improvement considered by jury.
21-35-18 Compensation determined for each parcel.
21-35-19 Recording of verdict--Judgment on verdict.
21-35-20 Appeal to Supreme Court--Improvement not delayed--Security for payment of award.
21-35-21 Highway provisions not affected--Proceeding cumulative.
21-35-22 Defendant's expenses paid by plaintiff on dismissal.
21-35-23 Allowance of expenses where judgment greatly exceeds offer.
21-35-24 Railroad or gas or electric utility property condemned for coal pipelines--Declaration of taking--Contents.
21-35-25 Vesting of title to property and right to compensation.
21-35-26 Terms of surrender of possession--Notice--Hearing--Orders of court.
21-35-27 Service of declaration of taking on defendants.
21-35-28 Amendment of declaration of taking.
21-35-29 Deposit with court required.
21-35-30 Order for payment from deposit--Judgment for amount by which final award exceeds deposit.
21-35-31 Entry on private property--Survey--Project permitted by Public Utilities Commission--Requirements--Challenge permitted--Applicability--"Examination" and "survey" defined.
21-35-1. Condemnors covered by chapter--Petition for ascertainment of compensation by jury.
In all cases where any person, group, or corporation, public or private, including the owners of water rights, ditches, flumes, reservoirs, and mining property under the provisions of the laws of Congress, invested with the privilege of taking or damaging private property for public use, in making, constructing, repairing, or using any work or improvement allowed by law, shall determine to exercise such privilege, it shall file a petition in the circuit court for the county in which the property to be taken or damaged is situated, praying that the just compensation to be made for such property may be ascertained by a jury.
Source: SL 1891, ch 94, § 1; RCCivP 1903, § 863; RC 1919, § 2938; SDC 1939 & Supp 1960, § 37.4001.
21-35-1.1. Trans-state transmission line construction--Eminent domain.
A utility constructing a transmission line in this state that has obtained a permit pursuant to chapter 49-41B and approval by legislative enactment as required pursuant to § 49-41B-4.1, is entitled to the power of eminent domain as provided by this chapter. However, such action shall not be construed to constitute approval of the use of federal eminent domain.
Source: SL 1980, ch 327, § 6.
21-35-2. Contents of petition for ascertainment of compensation.
A petition filed pursuant to § 21-35-1 shall name the person, group, or corporation desiring to take or damage private property as plaintiff, and all persons having interest in or liens upon the property affected by the proceeding as defendants, so far as they shall be known at the time of filing the same. It shall contain a description of the property to be taken or damaged. The purpose for which the property is to be taken or damaged shall be clearly set forth in the petition. It shall not be necessary to specify the interests or claims of the several defendants in the land or property affected by the proceeding.
Source: SL 1891, ch 94, § 2; RCCivP 1903, § 864; RC 1919, § 2939; SDC 1939 & Supp 1960, § 37.4001.
21-35-3. Amendment of petition and notice.
If any person who is a proper party defendant to a proceeding under this chapter, or any property affected thereby, shall have been omitted from said petition or notice, the plaintiff may file amendments to the same, which amendments from the filing thereof shall have the same effect as though contained in said petition and notice.
Source: SL 1891, ch 94, § 4; RCCivP 1903, § 866; RC 1919, § 2941; Supreme Court Rule 599, 1939; SDC 1939 & Supp 1960, § 37.4004.
21-35-4. Verification of petition--Statement of good faith.
Said petition shall be signed or verified in the manner provided by law for the signing or verification of complaints in actions in the circuit court, and the affidavit of verification shall contain the further statement that the proceeding is in good faith for the purposes specified in the petition.
Source: SL 1891, ch 94, § 2; RCCivP 1903, § 864; RC 1919, § 2939; SDC 1939 & Supp 1960, § 37.4001.
21-35-5. Attachment of document authorizing condemnation.
In all cases where any resolution, ordinance, or other proceeding of any corporation is required by law before taking private property, a copy of such resolution, ordinance, or proceeding shall be attached to such petition.
Source: SL 1891, ch 94, § 2; RCCivP 1903, § 864; RC 1919, § 2939; SDC 1939 & Supp 1960, § 37.4001.
21-35-6. Additional pleadings not required.
No pleading other than the petition shall be required in a proceeding under this chapter, unless ordered by the court.
Source: SL 1891, ch 94, § 9; RCCivP 1903, § 871; RC 1919, § 2946; Supreme Court Rule 598, 1939; SDC 1939 & Supp 1960, § 37.4003.
21-35-7. Interpleader of adverse claimants to compensation.
If there be adverse claimants for the compensation, the court may require such adverse claimants to interplead, so as to determine fully the rights and interests in such compensation.
Source: SL 1891, ch 94, § 12; RCCivP 1903, § 874; RC 1919, § 2949; Supreme Court Rule 598, 1939; SDC 1939 & Supp 1960, § 37.4003.
21-35-8. Notice of pendency of action filed with register of deeds--Effect of recording.
At any time after the filing of the petition the plaintiff may file for record in the office of the register of deeds of the county in which the petition is filed a notice of the pendency of the proceeding, containing the names of the parties plaintiff and defendant, a statement of the purpose of the proceeding, and a description of the property through or over which the proposed improvement is to be constructed, which notice shall be recorded and indexed in the same manner as provided by law for the recording and indexing of notices of the pendency of actions in the circuit court, and from the date of the filing thereof shall be notice to all subsequent purchasers or encumbrancers of the property therein described.
Source: SL 1891, ch 94, § 3; RCCivP 1903, § 865; RC 1919, § 2940; SDC 1939 & Supp 1960, § 37.4006.
21-35-9. Summons to defendants--Contents.
At any time after the filing of the petition the plaintiff may issue a summons to the defendants, which shall be entitled in the action or proceeding, and state the time and place of filing the petition, the nature of the proceeding, and contain a notice to the effect that if the defendants do not appear in said proceeding within thirty days from the service thereof, exclusive of the day of service, the plaintiff will apply to the court for an order to impanel a jury and ascertain the just compensation for the property proposed to be taken or damaged in such proceeding.
The summons may be served as in civil actions unless otherwise provided in this chapter.
Source: SL 1891, ch 94, § 5; RCCivP 1903, § 867; RC 1919, § 2942; Supreme Court Rule 601, 1939; SDC 1939 & Supp 1960, § 37.4007; SL 1976, ch 157, § 4.
21-35-10. Publication of summons to unknown or nonresident owners--Personal service outside state.
If there are unknown owners or persons interested in the property to be taken or damaged, or if any of the defendants are not residents of the state, the plaintiff may apply to the court upon affidavit setting forth the nature of the proceeding, and the facts in relation to such unknown persons or nonresident defendants, for an order of publication of such summons, whereupon the court shall grant such order. The summons as published shall have annexed thereto a notice that if the defendants as to whom publication has been ordered do not appear in said proceeding within thirty days from the first publication thereof, the plaintiff will make application to the court for the order mentioned in the body of the summons. Such summons shall be published for thirty days at least once in each week in some newspaper published and of general circulation in the county where the proceeding is had, and each publication of the same shall show at the top thereof the date of the first publication; and except as modified by this section, the proceeding of publication of the summons shall in all respects be governed by the provisions of Title 15 relating to publication of summons. Personal service on any defendant outside of the state shall be of the same effect as service within the state and shall dispense with necessity of publication as to such defendant.
Source: SL 1891, ch 94, § 6; RCCivP 1903, § 868; RC 1919, § 2943; Supreme Court Rule 601, 1939; SDC 1939 & Supp 1960, § 37.4007.
21-35-10.1. Hearing on right to take--Time for demand--Waiver of right to question necessity--Finding of necessity as binding.
Within thirty days from the date the summons described in § 21-35-9 is served, the defendant may demand a hearing in circuit court on the petitioner's right to take. Failure to make such demand or to consent in writing to the taking, within the thirty-day period, shall constitute a waiver of the right to question the necessity of the taking. The finding of necessity by the plaintiff, unless based upon fraud, bad faith, or an abuse of discretion, shall be binding on all persons.
Source: SL 1976, ch 157, § 1; SL 1977, ch 186.
21-35-11. Offer to deposit compensation with clerk--Evidence of offer not admissible--Costs avoided.
When the remedy is exercised under the provisions of this chapter, the plaintiff may at the time of service of the summons on any defendant serve upon him an offer in writing to the effect that the plaintiff will deposit with the clerk of the court in which the action is pending a sum of money specified, with costs, to be paid to defendant or other parties entitled thereto as compensation for all of the property taken or damaged. If the defendant fails to accept the offer by filing notice of acceptance with the clerk of the court within ten days after service of the offer upon him, it is deemed to be withdrawn, and cannot be given in evidence; and if the defendant fails to obtain a judgment for a greater sum of money than offered by the plaintiff, he cannot recover costs, and each party shall pay his own costs.
Source: SL 1937, ch 125; SDC 1939 & Supp 1960, § 37.4002.
21-35-11.1. Mediation.
The parties may by agreement refer a dispute that is the subject of a proceeding under this chapter for resolution by mediation using the services of a mediator selected by the parties.
Source: SL 2016, ch 117, § 1.
21-35-12. Order to summon jury on default.
If no appearance be made by any defendant within the time specified in the summons, the plaintiff, upon affidavit of the default, may apply to the court for an order directing the clerk of courts to draw and summon eighteen jurors to attend at the courthouse or place of holding the circuit court of the county, at a time to be specified in such order. Said jurors shall be drawn and summoned in the same manner as jurors are drawn and summoned for a regular or special term of the circuit court.
Source: SL 1891, ch 94, § 7; SL 1893, ch 113; RCCivP 1903, § 869; SL 1913, ch 169; RC 1919, § 2944; SDC 1939 & Supp 1960, § 37.4008.
21-35-13. Special term of court for jury trial--Challenge of jurors--Conduct of trial--Default by plaintiff.
At the time and place specified in the order made pursuant to § 21-35-12, a special term of the court shall be held, at which the proceedings in impanelling the jury, trial and rendering of the verdict or verdicts shall be conducted in the same manner as in civil actions, except that every defendant shall have the same rights and privileges, upon such trial, to challenge jurors and examine and cross-examine witnesses and participate therein, by himself or attorney, as a defendant in a civil action who has appeared and answered. As to all the defendants who appear within the time specified in the summons, the proceeding shall be conducted in like manner, except that three days' notice of the time and place of trial may be given by either party and the case brought on for trial at any regular or special term of court called for such purpose, and on the failure of the plaintiff, after such notice, to proceed with the trial, said petition shall be dismissed as to such defendant, and any lis pendens involving the title of property of such defendant shall be discharged and no other proceeding for the same purpose shall be brought by the plaintiff against such defendant until after the expiration of one year, and then only by leave of the court upon good cause shown and upon the condition that the plaintiff will, in good faith, prosecute such proceeding against such defendant with reasonable diligence.
Source: SL 1891, ch 94, §§ 7, 8; SL 1893, ch 113; RCCivP 1903, §§ 869, 870; SL 1913, ch 169; RC 1919, §§ 2944, 2945; SL 1921, ch 218; SDC 1939 & Supp 1960, § 37.4008.
21-35-14. Continuance of proceedings as to defendants not served.
As to all defendants not served before the trial said proceedings shall be continued as the court may direct, for the purpose of serving the summons on such defendants.
Source: SL 1891, ch 94, § 14; RCCivP 1903, § 876; RC 1919, § 2951; Supreme Court Rule 602, 1939; SDC 1939 & Supp 1960, § 37.4009.
21-35-15. Issue tried by jury.
The only issue that shall be tried by the jury upon the petition shall be the amount of compensation to be paid for the property taken or damaged.
Source: SL 1891, ch 94, § 12; RCCivP 1903, § 874; RC 1919, § 2949; Supreme Court Rule 598, 1939; SDC 1939 & Supp 1960, § 37.4003.
21-35-16. View of premises by jury.
Upon the demand of any party to the proceeding, if the court shall deem it necessary, the jury may view the premises under the rules of law for viewing by the jury.
Source: SL 1891, ch 94, § 10; RCCivP 1903, § 872; RC 1919, § 2947; Supreme Court Rule 603, 1939; SDC 1939 & Supp 1960, § 37.4010.
21-35-17. Benefits of municipal improvement considered by jury.
In all cases of taking or damaging private property by a municipal corporation, the jury shall take into consideration the benefits which may accrue to the owner thereof as the result of the proposed improvement.
Source: SL 1891, ch 94, § 11; RCCivP 1903, § 873; RC 1919, § 2948; Supreme Court Rule 603, 1939; SDC 1939 & Supp 1960, § 37.4010.
21-35-18. Compensation determined for each parcel.
If the compensation for all the property taken or damaged is ascertained by the jury upon one trial, they shall ascertain and return in their verdict the compensation to be paid for each distinct lot or parcel of land or property taken or damaged.
Source: SL 1891, ch 94, § 11; RCCivP 1903, § 873; RC 1919, § 2948; Supreme Court Rule 603, 1939; SDC 1939 & Supp 1960, § 37.4010.
21-35-19. Recording of verdict--Judgment on verdict.
Upon the return of the verdict the court shall order the same to be recorded, and shall enter such judgment thereon as the nature of the case may require, and that the plaintiff pay to the persons entitled thereto the amount of compensation ascertained by the verdict or deposit the same as the court may direct.
Source: SL 1891, ch 94, § 13; RCCivP 1903, § 875; RC 1919, § 2950; SDC 1939 & Supp 1960, § 37.4011.
21-35-20. Appeal to Supreme Court--Improvement not delayed--Security for payment of award.
Appeals shall be allowed in all cases provided for in this chapter to the Supreme Court, the same as in other civil actions, but the prosecution of such an appeal shall not prevent or delay the work or improvement involved; provided the plaintiff shall deposit with the clerk of courts, for the use and benefit of the appellant such sum as shall be awarded by the verdict and shall give to the appellant a bond in such sum as the court shall direct, to secure the payment of any additional sum which may be awarded to the appellant in the future proceedings therein.
Source: RCCivP 1903, § 877; RC 1919, § 2952; SDC 1939 & Supp 1960, § 37.4012.
21-35-21. Highway provisions not affected--Proceeding cumulative.
Nothing in this chapter shall be so construed as to impair any provision of this code relating to the establishment, alteration, or improvement of streets, alleys, roads, or other public highways; but the proceeding herein provided for shall be construed as additional and cumulative to any special proceeding relating to such public highway.
Source: RCCivP 1903, § 878; RC 1919, § 2953; Supreme Court Rule 600, 1939; SDC 1939 & Supp 1960, § 37.4005.
21-35-22. Defendant's expenses paid by plaintiff on dismissal.
If any eminent domain proceedings are commenced to take or damage any private property for public use within this state and are thereafter dismissed with or without prejudice, the plaintiff seeking to be condemnor is liable for and shall pay to the defendant all court costs, expenses and fees, including reasonable attorney fees, as are determined by the court having jurisdiction over the proceedings.
Source: SL 1983, ch 170, § 1.
21-35-23. Allowance of expenses where judgment greatly exceeds offer.
If the amount of compensation awarded to the defendant by final judgment in proceedings pursuant to this chapter is twenty percent greater than the plaintiff's final offer which shall be filed with the court having jurisdiction over the action at the time trial is commenced, and if that total award exceeds seven hundred dollars, the court shall, in addition to such taxable costs as are allowed by law, allow reasonable attorney fees and compensation for not more than two expert witnesses, all as determined by the court.
Source: SL 1983, ch 170, § 2.
21-35-24. Railroad or gas or electric utility property condemned for coal pipelines--Declaration of taking--Contents.
In proceedings initiated under this chapter against corporations, associations, or other entities engaged in the operation of electric utilities, gas utilities, or railroads and when those proceedings are for the purpose of constructing pipelines designed to carry water for the transportation of coal, the petitioner may file any time before final judicial determination of the rights of the parties, a declaration of taking, signed by the petitioner, declaring the extent of the property interest taken for the use of the petitioner. The declaration of taking shall contain:
(1) A statement of the authority under which and the use for which the property interest is taken;
(2) A description of the property interest taken sufficient for identification thereof;
(3) A legal description of the lands subject to the taking;
(4) The name of all persons or entities claiming an interest in the said lands, and a description of the interest claimed by each;
(5) A statement of the sum of money estimated by the acquiring authority to be just compensation for the property interest taken and damaged; and
(6) A detailed appraisal upon which the amount of the petitioner's deposit is based.
Source: SL 1983, ch 171, § 1.
21-35-25. Vesting of title to property and right to compensation.
Title to the property interest specified in the declaration shall vest in the petitioner and the property interest shall be deemed condemned and taken for the use of the petitioner. The right to just compensation for the property interest shall vest in the persons entitled thereto either on the date the decision is rendered at the hearing provided in § 21-35-10.1 or the date the hearing is waived.
Source: SL 1983, ch 171, § 2.
21-35-26. Terms of surrender of possession--Notice--Hearing--Orders of court.
Upon filing of a declaration of taking pursuant to § 21-35-24, the court has power to fix the time within which and the terms upon which the parties in possession are required to surrender possession to the petitioner. A notice shall be issued stating that if the defendants do not appear in or respond to the proceedings within thirty days after service of the notice, exclusive of the day of service, the petitioner shall apply to the court for an order of possession. A notice of hearing shall then be issued by the court and served as provided in § 21-35-27 upon the recorded owners of all lands sought to be acquired or damaged. The notice shall state a time and place for hearing not less than thirty days from the date of service, unless the waiver of hearing provided by § 21-35-10.1 is filed, in which case the hearing may be held sooner. The court may make orders in respect to encumbrances, liens, rents, taxes, assessments, insurance, and other charges, if any, as are just and equitable.
Source: SL 1983, ch 171, § 3.
21-35-27. Service of declaration of taking on defendants.
A copy of the declaration of taking filed pursuant to § 21-35-24 and any amendments thereto shall be served with the condemnation petition or by mailing a copy thereof to each of the known defendants by registered or certified mail at his last known post office address.
Source: SL 1983, ch 171, § 4; SL 1987, ch 29, § 29.
21-35-28. Amendment of declaration of taking.
If any person who is a proper party defendant or any affected property is omitted from the declaration of taking filed pursuant to § 21-35-24, the plaintiff may file amendments to include them. The amendments from the time of filing have the same force and effect as if they were included in the original proceedings. The naming or omission of defendants' names does not defer the effect of the declaration of taking.
Source: SL 1983, ch 171, § 5.
21-35-29. Deposit with court required.
If the petitioner elects to utilize the procedures set forth in §§ 21-35-24 to 21-35-28, inclusive, for possession of property, the petitioner shall deposit with the court the money required by § 21-35-25 as a condition to the exercise of such power. In that case, the court and the attorneys shall expedite the proceedings for the distribution of the money so deposited and for the ascertainment and payment of just compensation. However, the defendant may demand a hearing on the petitioner's right to take as provided in § 21-35-10.1.
Source: SL 1983, ch 171, § 6.
21-35-30. Order for payment from deposit--Judgment for amount by which final award exceeds deposit.
Upon application of the parties in interest, the court may order that all of the money deposited in court pursuant to § 21-35-29, or any part thereof, be paid for or on account of the just compensation to be awarded in the proceeding. If the compensation finally awarded for the property interest taken, or any parcel thereof, exceeds the amount of money received by any person so entitled, the court shall enter judgment against the petitioner for the amount of the deficiency.
Source: SL 1983, ch 171, § 7.
21-35-31. Entry on private property--Survey--Project permitted by Public Utilities Commission--Requirements--Challenge permitted--Applicability--"Examination" and "survey" defined.
The provisions of this section only apply to a project that requires a siting permit pursuant to chapter 49-41B. Each person vested with authority to take private property for public use may cause an examination and survey to be made as necessary for its proposed facilities. The person or the person's agents and officers may enter the private property for the purpose of the examination and survey. Any person seeking to cause an examination or survey, where permission for examination or survey has been denied, must:
(1) Have a pending or approved siting permit application with the Public Utilities Commission pursuant to § 49-41B-11;
(2) Provide to the owner of the private property, thirty days' written notice served in accordance with § 15-6-4 or sent by certified mail with return receipt requested that contains:
(a) A description of the specific portions of property to be examined and surveyed;
(b) The anticipated date and time of entry;
(c) The anticipated duration of presence on the property;
(d) A description of the types of surveys and examinations that may be conducted; and
(e) The name and contact information of the person, or the person's manager or officer, who will enter the property for the purpose of causing the examination and survey; and
(3) Make a payment to the owner, or provide sufficient security for the payment, for any actual damage done to the property by the entry. If the project is for construction of a common carrier, as described in § 49-7-11, in addition to the foregoing, the person must make a one-time payment to the owner, prior to entry, in the amount of five hundred dollars as compensation for entering the owner's property.
A landowner may challenge the right to survey or examine by commencing an action in circuit court in the county where the survey or examination is proposed within thirty days of service of the written notice in circuit court. Upon the written request of the owner, the results of a survey or examination of the owner's private property conducted pursuant to this section must be provided to the owner. This section does not apply to the state or its political subdivisions. This section is in addition to and not in derogation of other existing law.
For the purpose of this section, the term "examination" means an inspection of a property to obtain general information which is not a matter of public record. For the purpose of this section, the term "survey" means a more detailed, comprehensive, or invasive investigation of a property.
Source: SL 2016, ch 118, § 1; SL 2024, ch 77, § 1.
CHAPTER 21-36
ACTIONS FOR ESCHEAT OF PROPERTY
21-36-1 Power of state to maintain actions and proceedings--Prosecution by attorney general or state's attorney.
21-36-2 Report by state's attorneys and circuit judges of possible escheats.
21-36-3 Investigation and bringing of action by attorney general.
21-36-4 Intervention in probate proceedings in lieu of bringing action.
21-36-5 Direction by Governor for institution of proceedings.
21-36-6 State's attorney to assist on request by attorney general.
21-36-7 Complaint filed to bring action--Parties defendant.
21-36-8 Allegations required in complaint for escheat.
21-36-9 Summons filed--Persons to whom directed--Contents.
21-36-10 Publication of summons and complaint--Personal service--Service by mail.
21-36-11 Answer to complaint--Reply.
21-36-12 Receiver appointed on application by state.
21-36-13 Concurrent remedies by action and participation in probate proceedings.
21-36-14 Retention of jurisdiction by circuit court for payment of claims and conservation of estate--Surrender of property to receiver--Stay of proceedings in circuit court.
21-36-15 Circuit court not to settle estate unless state has intervened.
21-36-16 Claims to distributive shares determined in circuit court--Practice and procedure rules.
21-36-17 Judgment for state if no answer or motion served--Proof required.
21-36-18 Placement on trial calendar if issue joined.
21-36-19 Pleadings and testimony in prior proceedings admissible in evidence.
21-36-20 Hearing and judgment--Costs.
21-36-21 Recording of judgment where title to real property determined.
21-36-22 Personal property sold--Proceeds held in special fund--Fixtures treated as personal property--Credit to school fund.
21-36-23 Real property managed by commissioner of school and public lands--Sale of property--Disposition of proceeds.
21-36-24 Action by heirs to recover property escheated--Time for bringing action.
21-36-25 Summons and complaint of adverse claimant--Answer and trial.
21-36-26 Judgment for claimant to escheated property--Restoration of property--Interest not included in judgment.
21-36-27 Claims to escheated property barred by limitations--Persons under disability.
21-36-28 Appeal to Supreme Court.
21-36-29 Escheated property credited to school fund.
21-36-1. Power of state to maintain actions and proceedings--Prosecution by attorney general or state's attorney.
Whenever the title to any real or personal property, situate in this state, shall fail through defect of heirs and escheat to the state, the state may thereupon maintain any action, suit, or proceeding necessary to recover the possession of any such property, or for the enforcement or protection of its rights thereto, or on account thereof, and may sue with like effect as a natural person. Such action, suit, or proceeding shall be prosecuted by the attorney general or by the state's attorney of the county wherein the property or some part thereof is situated.
Source: SL 1909, ch 104, § 1; RC 1919, § 3049; SDC 1939 & Supp 1960, § 37.4201.
21-36-2. Report by state's attorneys and circuit judges of possible escheats.
It shall be the duty of state's attorneys and circuit judges to report to the Governor or to the attorney general all cases coming to their attention wherein there is reason to believe that any real or personal property has escheated or may escheat to the state, and all cases wherein there is reason to believe that the whole of the estate of a decedent may pass either by succession or by devise to any person or persons other than the surviving spouse, issue, father, mother, brother, or sister of the decedent.
Source: SL 1909, ch 104, § 2; RC 1919, § 3050; SL 1921, ch 228, § 1; SDC 1939 & Supp 1960, § 37.4202.
21-36-3. Investigation and bringing of action by attorney general.
Upon the receipt of a report pursuant to § 21-36-2, it shall be the duty of the attorney general to conduct an investigation, and if it appears that there is any property of the estate of the decedent that may escheat to the state, and that any persons who may be asserting their claims to such estate as heirs, devisees, legatees, or otherwise are not lawfully entitled thereto, then it shall be his duty to cause an action to be brought in the name of the state for the recovery of such property or its reduction into the possession of the state.
Source: SL 1909, ch 104, § 2; RC 1919, § 3050; SL 1921, ch 228, § 1; SDC 1939 & Supp 1960, § 37.4202.
21-36-4. Intervention in probate proceedings in lieu of bringing action.
In any of the cases enumerated in §§ 21-36-2 and 21-36-3, if it shall appear to the attorney general that the condition of the estate is such as will permit the question of the right of succession thereto, including the rights of the state as the ultimate heir of the decedent, to be determined in the course of probate proceedings in the manner provided by law, then the attorney general shall be authorized to institute or to intervene in any probate proceedings affecting such estate, in lieu of the proceedings provided for by this chapter.
Source: SL 1909, ch 104, § 2; RC 1919, § 3050; SL 1921, ch 228, § 1; SDC 1939 & Supp 1960, § 37.4202.
21-36-5. Direction by Governor for institution of proceedings.
If the Governor of this state has reason to believe that any real or personal property has escheated through defect of other heirs, the Governor may direct the attorney general or any state's attorney of any county in which the whole or any part thereof is situated to institute proceedings necessary and proper to protect and enforce the rights of the state with respect thereto.
Source: SL 1909, ch 104, § 2; RC 1919, § 3050; SL 1921, ch 228, § 1; SDC 1939 & Supp 1960, § 37.4202; SL 2023, ch 3, § 29.
21-36-6. State's attorney to assist on request by attorney general.
Whenever requested by the attorney general, the state's attorney of any county shall assist in the investigation, preparation, and trial of any escheat proceedings or appeals involving the same in the circuit or Supreme Court, when property located in his county is involved.
Source: SL 1909, ch 104, § 3; RC 1919, § 3051; SDC 1939 & Supp 1960, § 37.4202.
21-36-7. Complaint filed to bring action--Parties defendant.
An action for the recovery of escheated property or its reduction into the possession of the state shall be brought in the name of the state as plaintiff, entitled in the court in which the action is brought, by filing a complaint in which all parties in possession of said property or any part thereof and all adverse claimants thereto, if known, and all persons having or claiming to have any interest therein shall be named as defendants.
Source: SL 1909, ch 104, § 4; RC 1919, § 3052; SDC 1939 & Supp 1960, § 37.4203.
21-36-8. Allegations required in complaint for escheat.
It shall only be necessary to allege in the complaint the name of the person last seized, a general description of the estate and its approximate value, the names of the occupants or the persons in possession and claiming such estate, if known, their last-known residence and post office address, and the facts and circumstances in consequence of which the estate is claimed to have escheated, with an allegation that by reason thereof the State of South Dakota has a right by law to such estate.
Source: SL 1909, ch 104, § 4; RC 1919, § 3052; SDC 1939 & Supp 1960, § 37.4203.
21-36-9. Summons filed--Persons to whom directed--Contents.
With the complaint shall be filed a summons, entitled in the action, directed to the defendants named and to all persons generally who have or claim to have any interest in said estate, or claims against the same, as heirs, creditors, or otherwise, requiring them to appear and answer the said complaint within thirty days after the service of the summons, exclusive of the day of service, and to set forth the nature of their claims.
Source: SL 1909, ch 104, § 4; RC 1919, § 3052; SDC 1939 & Supp 1960, § 37.4203.
21-36-10. Publication of summons and complaint--Personal service--Service by mail.
Upon the filing of said summons and complaint the court shall make its order that the summons be published in some newspaper to be designated in said order as the newspaper most likely to give notice of the pendency of the action, at least once in each week for six successive weeks. The summons and complaint shall be personally served upon each defendant known to be a resident in this state and a copy of the summons and complaint shall be mailed and directed to each nonresident defendant at his last-known place of residence, with the postage thereon prepaid.
Source: SL 1909, ch 104, § 4; RC 1919, § 3052; SDC 1939 & Supp 1960, § 37.4203.
21-36-11. Answer to complaint--Reply.
Any person named as a defendant, and any person who may claim any interest in and to said estate, may answer to said complaint, setting forth the nature of his claim with a prayer for such relief as he may deem himself entitled to. The plaintiff may thereupon, within thirty days from the service of any answer, reply thereto.
Source: SL 1909, ch 104, § 4; RC 1919, § 3052; SDC 1939 & Supp 1960, § 37.4203.
21-36-12. Receiver appointed on application by state.
Upon the filing of said complaint, the court may, upon application of the state's attorney or attorney general, either before or after answer, upon notice to the party claiming such estate, if known, sufficient cause therefor being shown, appoint a receiver to take charge of said estate, and receive the rents and profits of the same until the rights of the parties are finally determined.
Source: SL 1909, ch 104, § 5; RC 1919, § 3053; SDC 1939 & Supp 1960, § 37.4204.
21-36-13. Concurrent remedies by action and participation in probate proceedings.
The right of action created by this chapter shall be concurrent with and in addition to the right of the state to conduct or participate in probate proceedings affecting the same property, and the two methods of procedure hereby authorized may be conducted without interference with each other, subject to the provisions of §§ 21-36-14 to 21-36-16, inclusive.
Source: SL 1909, ch 104, § 2; RC 1919, § 3050; SL 1921, ch 228, § 1; SDC 1939 & Supp 1960, § 37.4202.
21-36-14. Retention of jurisdiction by circuit court for payment of claims and conservation of estate--Surrender of property to receiver--Stay of proceedings in circuit court.
In all cases where the circuit court, exercising probate jurisdiction, has acquired jurisdiction by the appointment of a personal representative for an estate prior to the filing of the complaint in the circuit court pursuant to § 21-36-7, such court may retain jurisdiction for the purpose of paying claims against and conserving said estate until the settlement of the final account and the said estate is ready for final distribution; whereupon the possession of the property belonging to said estate shall be surrendered by personal representative to the receiver appointed by the circuit court; and pending the administration of said estate the proceedings commenced pursuant to § 21-36-7 shall be stayed.
Source: SL 1909, ch 104, § 5; RC 1919, § 3053; SDC 1939 & Supp 1960, § 37.4204.
21-36-15. Circuit court not to settle estate unless state has intervened.
The circuit court shall make no order in any manner disposing of or distributing the property belonging to an estate, except for the purpose of paying claims of creditors, unless the attorney general has instituted, or intervened in such probate proceedings, in which case settlement of the estate shall be completed, subject to the right of appeal by any interested party including the state.
Source: SL 1909, ch 104, § 5; RC 1919, § 3053; SDC 1939 & Supp 1960, § 37.4204; SL 1995, ch 167, § 95.
21-36-16. Claims to distributive shares determined in circuit court--Practice and procedure rules.
In all cases brought under the provisions of this chapter, all claims as heirs to any distributive share or portion of said estate shall be determined in the action in the circuit court. All matters of practice and procedure not otherwise provided herein shall be governed by the laws, practice, and rules applicable to appeals on question of both law and fact from a circuit court.
Source: SL 1909, ch 104, § 5; RC 1919, § 3053; SDC 1939 & Supp 1960, § 37.4204.
21-36-17. Judgment for state if no answer or motion served--Proof required.
If, in an action brought under the provisions of this chapter, no answer or motion be served within the time required by § 21-36-9 the plaintiff may apply to the court for judgment in accordance with the prayer of the complaint, but no judgment shall be given or made except upon proofs adduced in open court.
Source: SL 1909, ch 104, § 4; RC 1919, § 3052; SDC 1939 & Supp 1960, § 37.4203.
21-36-18. Placement on trial calendar if issue joined.
If the issue be joined by the service of an answer by any defendant, the cause shall be placed upon the trial calendar of the next regular term of said court by the service of notice of trial as provided by law and the rules of court.
Source: SL 1909, ch 104, § 4; RC 1919, § 3052; SDC 1939 & Supp 1960, § 37.4203.
21-36-19. Pleadings and testimony in prior proceedings admissible in evidence.
Upon the trial of said action in the circuit court, the original or a duly certified copy of any petition, pleading, order, finding, or judgment, and the official or proven copy of the testimony of any witness, or other evidence received upon any former hearing in any court of record of this state, wherein any party to said action shall have appeared and asserted any claim or interest in such property or estate, shall be admissible in evidence for or against him.
Source: SL 1909, ch 104, § 5; RC 1919, § 3053; SDC 1939 & Supp 1960, § 37.4204.
21-36-20. Hearing and judgment--Costs.
Upon the trial of the action, after issue joined, or upon the hearing of proofs on the part of the state in cases of default, the court shall make its findings and render judgment in accordance with the facts and the law of the case, which judgment shall be final and conclusive as to the title of the property of the estate, real or personal, subject only to the right of appeal as provided in § 21-36-28. The cost of suit shall be taxed as other actions in the circuit court.
Source: SL 1909, ch 104, §§ 7, 9; RC 1919, §§ 3055, 3057; SDC 1939 & Supp 1960, § 37.4205.
21-36-21. Recording of judgment where title to real property determined.
In case the title to real property is determined, a certified copy of the judgment of the court shall be recorded in the office of the register of deeds of the county in which such real estate is situated.
Source: SL 1909, ch 104, § 7; RC 1919, § 3055; SDC 1939 & Supp 1960, § 37.4205.
21-36-22. Personal property sold--Proceeds held in special fund--Fixtures treated as personal property--Credit to school fund.
Personal property, other than money, shall be converted into cash by the receiver appointed by the court, or the administrator of the estate, under the direction of the court, and the proceeds thereof together with all moneys recovered, after first deducting the costs and expenses of the suit, shall be delivered to the commissioner of school and public lands to be by him placed in a special fund pending the expiration of the time in which the right of recovery under the provisions of § 21-36-24 shall continue; provided, that for the purposes of this section all permanent fixtures on said real estate of an appraised value less than one thousand dollars, as determined by the Board of Appraisal provided for in § 5-9-3, shall be deemed personal property.
Upon the expiration of the time in which such right of recovery shall exist all moneys so recovered and all accruals and additions thereto shall be placed to the credit of the school fund.
Source: SL 1909, ch 104, § 8; RC 1919, § 3056; SL 1929, ch 119, § 1; SDC 1939, § 37.4206; SL 1945, ch 164.
21-36-23. Real property managed by commissioner of school and public lands--Sale of property--Disposition of proceeds.
Any real estate recovered under the provisions of this chapter shall be surrendered by the receiver, or administrator to the commissioner of school and public lands and shall be leased and managed by him subject to the rights of recovery as provided by this chapter, and after the expiration of such right of recovery may be sold in the manner provided by law for the sale of other school and public lands; provided, that when such real estate is of an appraised value of less than one thousand dollars as determined by the Board of Appraisal provided for by § 5-9-3, and in the opinion of the commissioner it will be to the best interest of the state that the same be sold and converted into money, he may cause the same to be sold upon the notice and in the manner provided in §§ 5-9-36 to 5-9-38, inclusive, for the sale of improvements on public lands and the proceeds therefrom placed by the commissioner in the said special fund provided for in § 21-36-22 in case of sale of escheated personal property pending the expiration of the right of recovery as provided in § 21-36-24.
Source: SL 1909, ch 104, § 8; RC 1919, § 3056; SL 1929, ch 119, § 1; SDC 1939, § 37.4206; SL 1945, ch 164.
21-36-24. Action by heirs to recover property escheated--Time for bringing action.
In all cases where property has or may be hereafter escheated to the State of South Dakota by proceedings had in any court of this state, any person or persons who may be legally entitled to the same or an heir or heirs of the deceased person whose property was escheated by such proceedings, who was not a party or privy to such proceedings and who had no notice or knowledge thereof, may bring an action against the State of South Dakota for the recovery of such property within ten years from the entry of the decree or the judgment of escheat.
Source: SL 1909, ch 104, § 10; RC 1919, § 3058; SL 1929, ch 119, § 2; SDC 1939 & Supp 1960, § 37.4207.
21-36-25. Summons and complaint of adverse claimant--Answer and trial.
The adverse claimant or claimants may serve and file a summons and a complaint in the circuit court for the county where such action was brought, alleging his claim or right to said property or the proceeds thereof. A copy of such summons and complaint shall be served upon the state's attorney of the county, and the attorney general, who shall within thirty days thereafter answer the same, and the court thereupon must try the issue as in the original action.
Source: SL 1909, ch 104, § 10; RC 1919, § 3058; SL 1929, ch 119, § 2; Supreme Court Rule 604, 1939; SDC 1939 & Supp 1960, § 37.4208.
21-36-26. Judgment for claimant to escheated property--Restoration of property--Interest not included in judgment.
If judgment shall be awarded the claimant, the court must order the property if not sold, to be delivered to him by the receiver, administrator, or the commissioner of school and public lands, or if it has been sold and the proceeds paid into the state treasury as a part of the school fund, the Legislature shall provide for the payment of the same. No judgment shall be rendered in favor of such person for a sum in excess of the principal received into the school fund, exclusive of interest, rents, and profits; it being the intent of this section that any interest or profits derived from said principal shall be retained in said school fund as compensation for the care and preservation of said property.
Source: SL 1909, ch 104, § 10; RC 1919, § 3058; SL 1929, ch 119, § 2; Supreme Court Rule 604, 1939; SDC 1939 & Supp 1960, § 37.4208.
21-36-27. Claims to escheated property barred by limitations--Persons under disability.
All persons who fail to appear and file their complaint within the time limited by this chapter are forever barred, saving, however, to infants and persons of unsound mind the right to appear and file their complaint within one year after their respective disabilities cease.
Source: SL 1909, ch 104, § 10; RC 1919, § 3058; SL 1929, ch 119, § 2; Supreme Court Rule 604, 1939; SDC 1939 & Supp 1960, § 37.4208.
21-36-28. Appeal to Supreme Court.
Any party to any action or proceeding under this chapter may appeal from the judgment of the circuit court to the Supreme Court, in the manner provided by law and the rules of court for appeals from the circuit court.
Source: SL 1909, ch 104, § 11; RC 1919, § 3059; SDC 1939 & Supp 1960, § 37.4209.
21-36-29. Escheated property credited to school fund.
All property recovered under the provisions of this chapter shall, after the expiration of the time in which the right to bring an action for the recovery of such property shall have expired, be placed to the credit of the school fund for the maintenance of the public schools of this state.
Source: SL 1909, ch 104, § 8; RC 1919, § 3056; SL 1929, ch 119, § 1; SDC 1939, § 37.4206; SL 1945, ch 164.
CHAPTER 21-37
CHANGE OF NAME
21-37-1 Circuit court power to change names--Pending proceedings and existing rights unaffected.
21-37-2 Residence required for change of name of person--Proceedings.
21-37-3 Petition for change of name of person--Contents.
21-37-3.1 Single petition for certain family members.
21-37-4 Notice of hearing on change of name of person.
21-37-5 Hearing and order changing name of person.
21-37-5.1 Exception to notice and open court hearing requirements for name change of minor.
21-37-5.2 Notice and open court requirements--Exception--Name change of victims--Sealed records.
21-37-6 Change of name of municipality or platted portion--Proceedings.
21-37-7 Petition for change of name of municipality or platted portion.
21-37-8 Publication of notice of hearing on change of name of municipality of platted portion.
21-37-9 Hearing and order on change of name of municipality or platted portion--Proof of voters' desire required--Duplication of names avoided.
21-37-10 Judgment for costs against petitioner.
21-37-1. Circuit court power to change names--Pending proceedings and existing rights unaffected.
The circuit court shall have authority to change the names of persons, municipalities, and the name of any recorded plat or map of land situated within the limits of any municipality, as provided in this chapter. The change of names shall in no manner affect or alter any pending action or legal proceeding, nor any right, title, or interest whatsoever.
Source: CCivP 1877, §§ 734, 737; CL 1887, §§ 5556, 5559; RCCivP 1903, §§ 803, 806; SL 1903, ch 183; RC 1919, §§ 3042, 3045; SDC 1939 & Supp 1960, § 37.1001; SL 1992, ch 60, § 2.
21-37-2. Residence required for change of name of person--Proceedings.
Any person who has been a bona fide resident of any county of this state for a period of six months next preceding the filing of the petition required in § 21-37-3, may change his or her name by proceeding as provided by §§ 21-37-3 to 21-37-5, inclusive.
Source: CCivP 1877, § 735; CL 1887, § 5557; RCCivP 1903, § 804; RC 1919, § 3043; Supreme Court Rule 568, 1939; SDC 1939 & Supp 1960, § 37.1002.
21-37-3. Petition for change of name of person--Contents.
A petition for change of name of a person must be filed in the office of the clerk of courts of the county of petitioner's said residence, entitled in the circuit court for said county and stating that the petitioner has been a bona fide resident citizen of such county for at least six months prior to filing the petition; the cause for which change of petitioner's name is sought; and the name asked for.
Source: CCivP 1877, § 735; CL 1887, § 5557; RCCivP 1903, § 804; RC 1919, § 3043; Supreme Court Rule 568, 1939; SDC 1939 & Supp 1960, § 37.1002 (1).
21-37-3.1. Single petition for certain family members.
Persons who are married pursuant to § 25-1-1 and any natural or adopted child of either person may file one petition for change of name.
Source: SL 1998, ch 128, § 1.
21-37-4. Notice of hearing on change of name of person.
The petitioner shall give notice of the hearing on change of name of a person, stating the time and place and object thereof with the old and proposed names of the petitioner, by publishing the notice once each week for four successive weeks in any legal newspaper of the county of petitioner's residence. In any action where the change of name sought involves a minor child, the petitioner shall also give notice in the same manner as is required for service of a summons pursuant to § 15-6-4 to any parent that is not a party to the petition and whose parental rights have not been terminated.
Source: CCivP 1877, § 735; CL 1887, § 5557; RCCivP 1903, § 804; RC 1919, § 3043; Supreme Court Rule 568, 1939; SDC 1939 & Supp 1960, § 37.1002 (2); SL 2015, ch 123, § 1.
21-37-5. Hearing and order changing name of person.
At the time and place specified in the notice and upon proof in open court to the satisfaction of the judge thereof that notice of the hearing has been given as required in § 21-37-4 and that the allegations of the petition are true, and that there exists proper and reasonable cause for changing the name of the petitioner, the court or judge shall make an order directing a change of the name of the petitioner and directing that such order be entered by the clerk.
Source: CCivP 1877, § 735; CL 1887, § 5557; RCCivP 1903, § 804; RC 1919, § 3043; Supreme Court Rule 568, 1939; SDC 1939 & Supp 1960, § 37.1002 (3).
21-37-5.1. Exception to notice and open court hearing requirements for name change of minor.
The court may grant an order changing the name of a minor child without publication of notice or a hearing in open court if all of the following conditions are met:
(1) It appears from the pleadings that the minor child has been a resident of the county in which the petition is filed for at least six months;
(2) The minor child's parents whose parental rights have not been terminated, and any other person having legal rights to custody or guardianship of the minor child, give written consent to the name change;
(3) The minor child, if twelve years of age or older, gives written consent to the name change; and
(4) It appears to the court that the name change is in the minor child's best interests.
Source: SL 2016, ch 119, § 1.
21-37-5.2. Notice and open court requirements--Exception--Name change of victims--Sealed records.
The court may grant an order changing the name of a person without publication of notice or a hearing in open court if all of the following conditions are met:
(1) The petitioner is over the age of eighteen years or is a guardian of a minor child;
(2) The petitioner or minor child is a resident of this state;
(3) The petitioner:
(a) Or minor child is a victim of human trafficking and has a particularized need for a change of name to protect them from a person who victimized them such that there is a sufficient basis to grant an exception to the requirements of §§ 21-37-4 and 21-37-5; or
(b) Is an adult, is a victim of domestic abuse, and the petitioner shows a particularized need for a change of name to protect the petitioner from the perpetrator such that there is a sufficient basis to grant an exception to the requirements of §§ 21-37-4 and 21-37-5;
(4) It appears to the court that the name change is in the petitioner's or minor child's best interests; and
(5) The court finds that the name change is not done for the purposes of fraud.
If good cause exists, the court may order all records regarding the petition and order be sealed. The court may order that if a new certificate of birth is obtained under § 34-25-16.8, the original certificate, and any other evidence upon which a new certificate is made, be sealed. The order must include findings that the petitioner is a victim meeting the requirements of subsection (3)(a) or (3)(b). The records shall only be opened by a court order based upon showing good cause or at the petitioner's request.
Source: SL 2020, ch 75, § 1; SL 2022, ch 59, § 1.
21-37-6. Change of name of municipality or platted portion--Proceedings.
Whenever it may be desirable to change the name of any municipality or platted or mapped portion thereof, any person interested in proposing such change may proceed as provided by §§ 21-37-7 to 21-37-9, inclusive.
Source: CCivP 1877, § 736; CL 1887, § 5558; RCCivP 1903, § 805; RC 1919, § 3044; Supreme Court Rule 569, 1939; SDC 1939 & Supp 1960, § 37.1003.
21-37-7. Petition for change of name of municipality or platted portion.
A petition for change of name under § 21-37-6 shall be filed in the office of the clerk of the circuit court for the county in which the municipality is situated setting forth the cause why such change of name is desirable, and the name asked to be substituted.
Source: CCivP 1877, § 736; CL 1887, § 5558; RCCivP 1903, § 805; RC 1919, § 3044; Supreme Court Rule 569, 1939; SDC 1939 & Supp 1960, § 37.1003 (1).
21-37-8. Publication of notice of hearing on change of name of municipality of platted portion.
Notice of the hearing on change of name under § 21-37-6, stating the time and place of hearing, object of hearing, and proposed name shall be given by publishing the same once each week for at least two successive weeks in some legal newspaper published in the municipality involved or if none is published therein, then in any legal newspaper of the county, in which the municipality is situated.
Source: CCivP 1877, § 736; CL 1887, § 5558; RCCivP 1903, § 805; RC 1919, § 3044; Supreme Court Rule 569, 1939; SDC 1939 & Supp 1960, § 37.1003 (2); SL 1972, ch 51, § 5.
21-37-9. Hearing and order on change of name of municipality or platted portion--Proof of voters' desire required--Duplication of names avoided.
At the time and place specified in the notice and upon proof in open court to the satisfaction of the judge thereof that notice of the hearing has been given as provided in § 21-37-8 and that two-thirds of the legal voters of such municipality desire such change of name, and that there is no other municipality in the state of the name asked for, or in the case of proposed change of name of a platted or mapped portion of a municipality, that there is no other platted or mapped portion of the same name as proposed in said municipality, unless the portion is being added to a portion with the name to which change is sought, the court or judge may order and direct such change of name and direct the clerk to enter such order.
Source: CCivP 1877, § 736; CL 1887, § 5558; RCCivP 1903, § 805; RC 1919, § 3044; Supreme Court Rule 569, 1939; SDC 1939 & Supp 1960, § 37.1003 (3).
21-37-10. Judgment for costs against petitioner.
All proceedings under this chapter shall be at the cost of the petitioner and judgment may be entered against him for costs as in other civil actions.
Source: CCivP 1877, § 737; CL 1887, § 5559; RCCivP 1903, § 806; RC 1919, § 3045; SDC 1939 & Supp 1960, § 37.1001.
21-38-1
Court records and register of deeds records subject to restoration procedure.
21-38-2
Venue of restoration proceedings.
21-38-3
Title of application for restoration.
21-38-4
Substance and proposed copy of record shown in application for restoration.
21-38-5
Interest of applicant shown in application for restoration.
21-38-6
Circumstances of loss or destruction shown in application for restoration.
21-38-7
Loss or destruction without fault of applicant shown in application for restoration.
21-38-8
Signing and verification of application for restoration.
21-38-9
Time and place of hearing on restoration of record--Notice.
21-38-10
Hearing on restoration of record--Proof required.
21-38-11
Findings and judgment on restoration of record.
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.
21-39-1
Circuit court jurisdiction to determine heirs under federal land laws.
21-39-2
County court decrees prior to 1959 validated.
21-39-1. Circuit court jurisdiction to determine heirs under federal land laws.
Whenever a patent shall have been issued direct to the heirs of a deceased person under the homestead or any other laws of the United States, the circuit court for the county in which such lands, or any part thereof, so patented are situated shall have original jurisdiction in a civil action brought for that purpose to determine who are such heirs and to determine the respective shares of such heirs in and to the lands so patented.
Source: SL 1913, ch 231, § 1; RC 1919, § 2869; SL 1921, ch 182; SDC 1939 & Supp 1960, § 37.1503.
21-39-2. County court decrees prior to 1959 validated.
In all cases prior to July 1, 1959, where patent has issued to the heirs of a decedent under the laws of the United States and the county court of the county wherein such patented land is situated has determined who were the heirs of such decedent and their respective shares in and to said patented land, such decrees of said county court establishing and declaring such heirship and such shares shall have the same force, effect, and validity as though made by the circuit court for said county.
Source: SL 1925, ch 4, § 2; SDC 1939, § 65.0314; SL 1959, ch 459.
21-40-1
Action against adjoining landowner to determine boundary.
21-40-2
Action to determine boundaries of tracts dependent on common landmark.
21-40-3
Addition of parties defendant for more complete settlement.
21-40-4
Practice and procedural rules.
21-40-5
Determination of adverse claims--Survey ordered.
21-40-6
Judgment to refer to permanent landmarks--Survey--Specifications for judicial
landmark.
21-40-7
Filing and recording of report on survey and landmarks--Incorporation of report in
judgment.
21-40-8
Costs and expenses of survey.
21-40-1. Action against adjoining landowner to determine boundary.
An action may be brought in the circuit court by any person owning land or any interest therein against the owner or persons interested in adjoining land to have the boundary lines thereof established.
Source: SL 1923, ch 140, § 1; SDC 1939 & Supp 1960, § 37.1301.
21-40-2. Action to determine boundaries of tracts dependent on common landmark.
When the boundary lines of two or more tracts depend upon any common point, line, or landmark, an action may be brought by the owner or any person interested in any of such tracts, against the owners or persons interested in the other tracts, to have all of such boundary lines established.
Source: SL 1923, ch 140, § 1; SDC 1939 & Supp 1960, § 37.1301.
21-40-3. Addition of parties defendant for more complete settlement.
When in any action under this chapter it appears to the court that any owner, lien holder, or person interested in any of the tracts involved ought, for a full settlement and adjudication of all the questions involved, to be made a party, the court shall stay the proceedings in said action and order that they be made parties defendant and be served with the summons therein.
Source: SL 1923, ch 140, § 2; Supreme Court Rule 577, 1939; SDC 1939 & Supp 1960, § 37.1302.
21-40-4. Practice and procedural rules.
Actions to determine boundary lines shall be governed by the general rules relating to pleadings, practice, and procedure in civil actions as near as may be, except as otherwise provided in this chapter.
Source: SL 1923, ch 140, § 2; Supreme Court Rule 577, 1939; SDC 1939 & Supp 1960, § 37.1302.
21-40-5. Determination of adverse claims--Survey ordered.
The court shall determine any adverse claims in respect to any portion of the land involved which it may be necessary to determine for a complete settlement of the boundary lines and the marking thereof and may order a survey to be made by a competent surveyor of such boundary lines between such lands.
Source: SL 1923, ch 140, § 1; SDC 1939 & Supp 1960, § 37.1301.
21-40-6. Judgment to refer to permanent landmarks--Survey--Specifications for judicial landmark.
Upon the trial of an action under this chapter, the court shall make its judgment locating and defining the boundary lines involved by reference to well-known, permanent landmarks, if any there be, or if none, then to such landmarks as may be placed or established for that purpose by the surveyor engaged in such work, and if it shall be deemed for the interest of the parties after the entry of judgment, the court may order a registered land surveyor to establish and mark such boundaries. Such landmarks so established, located, and placed in the earth shall have distinctly marked thereon the words, judicial landmark or J. L., with the date that it was so placed and the name or initial letters of the name and the registration number of the surveyor who placed the landmark.
Source: SL 1923, ch 140, § 3; SDC 1939 & Supp 1960, § 37.1303; SL 2011, ch 70, § 2.
21-40-7. Filing and recording of report on survey and landmarks--Incorporation of report in judgment.
The surveyor shall make a full and complete report of his action to the court and therein accurately describe the landmarks so placed and define their location as nearly as practicable. Such report shall be filed with the clerk as one of the records of the action and a certified copy of the same may be filed in the office of the register of deeds of any county in which any of the land affected is located and thereafter shall be constructive notice of its contents. The judgment shall contain a recital approving such report in whole or in part and may adopt said report as a part of the judgment by incorporating it therein or attaching it as an exhibit thereto.
Source: SL 1923, ch 140, § 3; SDC 1939 & Supp 1960, § 37.1303.
21-40-8. Costs and expenses of survey.
The court shall make such order respecting the costs and disbursements including the costs and expenses of a survey thereof and of the establishing of any markings of such boundaries between the parties to such action as it shall deem just.
Source: SL 1923, ch 140, § 1; SDC 1939 & Supp 1960, § 37.1301.
CHAPTER 21-41
ACTIONS TO QUIET TITLE TO REAL PROPERTY
21-41-1 Action authorized--Purposes of action--Persons authorized to maintain action--Parties defendant.
21-41-2 Joinder of causes of action as to different tracts or parcels--Common interest required.
21-41-3 Request before action for quitclaim deed--Expense tendered--Costs and attorney fees.
21-41-4 Joinder of parties plaintiff.
21-41-5 Joinder of known claimants as defendants.
21-41-6 Joinder of unknown claimants as defendants--Proof of want of knowledge.
21-41-7 Filing of complaint and summons--Form for summons.
21-41-8 Service of summons on named defendants.
21-41-9 Service by publication on unknown defendants--Mail service not required--Effect of service by publication.
21-41-10 Validation of prior judgments based on personal service outside state--Rights barred by no action.
21-41-11 Contents of complaint.
21-41-12 Lis pendens notice filed with register of deeds--Constructive notice--Destruction of records.
21-41-13 Disclaimer by defendant to avoid costs.
21-41-14 Contents of defendant's answer--Counterclaim permitted.
21-41-15 Counterclaim for improvements to include value of land and improvements--Issue and findings on valuation.
21-41-16 Judgment on counterclaim for improvements--Payment for land on default by plaintiff.
21-41-17 Enforcement against property of claim against deceased defendant.
21-41-18 Jurisdiction of court to determine rights in decedents' estates.
21-41-19 Jurisdiction of decedent's estate from time of publication of summons.
21-41-20 Repealed
21-41-22 Allowance of plaintiff's claim for improvements--Value alleged in complaint.
21-41-23 Judgment for defendant requiring payment for plaintiff's improvements--Payment for land on default by defendant.
21-41-24 Bond required to indemnify against defenses permitted after judgment.
21-41-25 Relief from default judgment--Rights of good faith purchaser preserved.
21-41-1. Action authorized--Purposes of action--Persons authorized to maintain action--Parties defendant.
An action may be maintained by any person or persons having or claiming to have an estate or interest in or lien or encumbrance upon any real property, whether in or out of possession thereof and whether such property is vacant or occupied, against any person or persons claiming an estate or interest in or lien or encumbrance upon the same or any part thereof for the purpose of determining such adverse interest, estate, lien, or encumbrance, and against all persons who appear from the records in the office of the register of deeds, the county treasurer, clerk of courts, or other public records in the county where such land lies to have or ever to have had any estate or interest in or lien or encumbrance upon such real property or any part thereof and against personal representatives, heirs at law, devisees, legatees, and creditors of any such person or persons who may be deceased, whether such personal representatives, heirs at law, devisees, legatees, and creditors be known or unknown, and generally against all persons unknown who may have or claim to have any estate or interest in or lien or encumbrance upon such real property or any part thereof for the purpose of quieting the title to such real property and of determining such estate, interest, lien, or encumbrance, and in such action any number of persons may be joined as plaintiffs, whether holding as tenants in common, joint tenants, partners, or in severalty, where the relief demanded in the complaint is common to all of such plaintiffs.
Source: CCivP 1877, § 635; CL 1887, § 5449; RCCivP 1903, § 675; SL 1903, ch 194, § 1; SL 1905, ch 81; SL 1917, ch 199; RC 1919, § 2846; SDC 1939, § 37.1501; SL 1945, ch 162.
21-41-2. Joinder of causes of action as to different tracts or parcels--Common interest required.
The plaintiff or plaintiffs may join in one cause of action as many tracts, parcels, or lots of real estate wherever situated within the state as they may elect, provided they all have a common interest in obtaining the relief demanded in all real estate included in the action and regardless of whether or not the interests of the defendants are common to all of such real estate.
Source: Supreme Court Rule 580, 1939; SDC 1939 & Supp 1960, § 37.1504.
21-41-3. Request before action for quitclaim deed--Expense tendered--Costs and attorney fees.
A person or entity is liable for costs, disbursements, and reasonable attorney's fees if the party seeking to quiet title is successful, and at least twenty days before bringing suit, the party seeking to quiet title:
(1) Delivers to the person or entity, and requests the person or entity to execute and return, a quitclaim deed or other instrument necessary to divest the person or entity of an apparent adverse interest or right;
(2) Tenders to the person or entity one hundred dollars for costs associated with the handling and notarization of the instrument; and
(3) The person or entity refuses or neglects to comply with the request.
Source: SL 1913, ch 170; RC 1919, § 2867; SDC 1939 & Supp 1960, § 37.1523; SL 2024, ch 78, § 1.
21-41-4. Joinder of parties plaintiff.
Any number of persons may be joined as plaintiffs in an action brought pursuant to § 21-41-1, where one or more defendants are proper defendants as to all such plaintiffs, without regard to whether all plaintiffs have an interest in all real estate involved, and the finding of the court in said action that one or more defendants are proper defendants as to all such plaintiffs shall be conclusive upon that question; the provisions of this section shall be so construed that it will in no matter limit any rights which would have existed under § 21-41-1 as to the joinder of plaintiffs if this section had not been enacted.
Source: SDC 1939, § 37.1501 as added by SL 1945, ch 162.
21-41-5. Joinder of known claimants as defendants.
In such action all persons who have or claim to have or who appear of record to have ever had any interest or estate in, claim to, or lien or encumbrance upon the premises described in the summons and complaint or any part thereof or if dead, their heirs, devisees, legatees, personal representatives, or creditors or any or either of them, may be made defendants by name, if known.
Source: SL 1903, ch 194, § 2; SL 1905, ch 81; RC 1919, § 2847; SDC 1939 & Supp 1960, § 37.1505; SL 1995, ch 167, § 188.
21-41-6. Joinder of unknown claimants as defendants--Proof of want of knowledge.
If not known, the persons named in § 21-41-5 may be made defendants by designating them in the summons and complaint as, all persons unknown who have or claim to have any interest or estate in or lien or encumbrance upon the premises described in the complaint. In case unknown parties are so made defendants, the complaint shall state and the proof show that if there are any persons whomsoever who have any interest or estate in, claim to, or lien or encumbrance upon the premises other than the defendants named, they were unknown at the time of the commencement of the action.
Source: SL 1903, ch 194, § 2; SL 1905, ch 81; RC 1919, § 2847; SDC 1939 & Supp 1960, § 37.1505.
21-41-7. Filing of complaint and summons--Form for summons.
The action shall be commenced by the filing of a complaint in the office of the clerk of courts of the county in which the real estate or some part thereof is situated, and the issuance of a summons, which, after the title of the action, shall be substantially in the following form: The State of South Dakota, to the Above Named Defendants:
You are hereby summoned and required to answer the complaint of the plaintiff, which was filed in the office of the clerk of this court, at ________ in ________ county, South Dakota, on the ________ day of ________, 20__, and which prays for a judgment quieting the title to and the determination of all adverse claims against the premises described in the complaint, (or which prays for a judgment determining all interests in and liens against the premises described in the complaint as the case may be), situate in said county, to wit: ________, and to serve a copy of your answer to said complaint on the undersigned at their office in ________, within thirty days after the completed service of this summons upon you, exclusive of the day of such service; and if you fail to answer said complaint within that time, the plaintiff will apply to the court for the relief demanded in the complaint.
_____________________________
Attorneys for Plaintiff.
Source: SL 1903, ch 194, § 5; SL 1905, ch 81; RC 1919, § 2850; Supreme Court Rule 582, 1939; SDC 1939 & Supp 1960, § 37.1511.
21-41-8. Service of summons on named defendants.
The summons shall be served upon all defendants specified by name in the title to the action, either personally or by publication as provided by statute or rules of court for such service.
Source: SL 1903, ch 194, § 6; SL 1905, ch 81; RC 1919, § 2851; SDC 1939 & Supp 1960, § 37.1512.
21-41-9. Service by publication on unknown defendants--Mail service not required--Effect of service by publication.
The court may grant an order for the service of the summons upon defendants who are unknown, whether heirs, devisees, legatees, personal representatives, or creditors or any other unknown person, by publication upon the filing of an affidavit by the plaintiff, his agent or attorney, stating that if there are any persons other than those named as defendants in the summons and complaint who have or claim to have any interest or estate in or claim to, or lien or encumbrance upon the premises adverse to plaintiff, such persons are unknown. No deposit of a copy of the summons and complaint in the post office for unknown defendants shall be required, and service shall be complete as to all unknown defendants at the expiration of the publication of the summons as ordered and shall be taken and accepted as personal service on all parties unknown who have or claim to have any such interest, estate, claim, lien, or encumbrance in, to, or upon the property described in the complaint.
Source: SL 1903, ch 194, § 6; SL 1905, ch 81; RC 1919, § 2852; SDC 1939 & Supp 1960, § 37.1512; SL 1995, ch 167, § 188.
21-41-10. Validation of prior judgments based on personal service outside state--Rights barred by no action.
In any action to determine adverse claims to real property in the circuit court in which personal service was made of the summons or summons and complaint, on any nonresident defendant, in lieu of service by publication, by an officer of such foreign state and where proof of such service was made by the certificate of service of such officer making such personal service and judgment and decree was made and entered quieting the title to such real property, prior to January 1, 1992, such proof of service is hereby legalized and validated as fully as though such proof of service had been by affidavit. Any judgment or decree quieting the title to real estate based upon such proof of service shall be legal, valid, complete and effective as of the date on which said judgment and decree was filed, if otherwise properly signed and attested.
If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.
Source: SL 1945, ch 166; SDC Supp 1960, § 65.0323; SL 1992, ch 307, § 7.
21-41-11. Contents of complaint.
In an action brought pursuant to 21-41-1 it shall be necessary for the plaintiff to state in his complaint in general terms only that he has or claims title in fee to the property, or a lien upon or interest therein as the case may be, which property must be described with sufficient certainty to enable an officer on execution to identify it; that the defendants are proper parties under the provisions of this chapter, and that the action is brought for the purpose of determining all adverse claims to such property and of quieting title thereto in the plaintiff, or of determining the liens or interest of all parties in and to such property, as the case may be. The plaintiff may also allege that he is entitled to the possession of the property and may allege any facts concerning the use and occupation and the rents, issues, and profits of the property and the value thereof which may be pertinent. The complaint shall also contain a prayer for the relief to which the plaintiff deems himself entitled, and shall call upon the defendants to set forth all their adverse claims to the property described.
Source: SL 1903, ch 194, § 3; SL 1905, ch 81; RC 1919, § 2848; Supreme Court Rule 581, 1939; SDC 1939 & Supp 1960, § 37.1507.
21-41-12. Lis pendens notice filed with register of deeds--Constructive notice--Destruction of records.
Immediately after the filing of the complaint in the circuit court, the plaintiff must record in the office of the register of deeds of the county or of several counties in which the property is situated, a notice of the pendency of the action, containing the title and object of the action and a description of the property to be affected thereby. From the time of filing the notice for record all persons shall be deemed to have notice of the pendency of the action. 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: SL 1903, ch 194, § 7; SL 1905, ch 81; RC 1919, § 2853; SDC 1939 & Supp 1960, § 37.1513; SL 1981, ch 45, § 17.
21-41-13. Disclaimer by defendant to avoid costs.
If the defendant in an action to determine adverse claims disclaim in his answer any interest or estate in the property or suffer judgment to be taken against him without answer, the plaintiff cannot recover costs except as provided in § 21-41-3.
Source: CCivP 1877, § 636; CL 1887, § 5450; RCCivP 1903, § 676; RC 1919, § 2866; SDC 1939 & Supp 1960, § 37.1523.
21-41-14. Contents of defendant's answer--Counterclaim permitted.
The defendant in his answer must set forth fully and particularly the origin, nature, and extent of his claim to the property; and may set forth his rights in the property as a counterclaim and demand affirmative relief.
Source: SL 1903, ch 194, § 3; SL 1905, ch 81; RC 1919, § 2848; Supreme Court Rule 581, 1939; SDC 1939 & Supp 1960, § 37.1507.
21-41-15. Counterclaim for improvements to include value of land and improvements--Issue and findings on valuation.
Any counterclaim filed pursuant to § 21-14-5 must set forth, among other things, the value of the land aside from the improvements thereon, and also as accurately as practicable the improvements upon the land and the value thereof. Issues may be joined and tried as in other actions, and the value of the land aside from the value of the improvements thereon, and the separate value of the improvements, must be specifically found by the verdict of the jury, the report of the referee, or the findings of the court.
Source: CCivP 1877, §§ 642, 643; CL 1887, §§ 5456, 5457; RCCivP 1903, §§ 682, 683; RC 1919, §§ 2858, 2859; Supreme Court Rules 583, 584, 1939; SDC 1939 & Supp 1960, §§ 37.1517, 37.1518.
21-41-16. Judgment on counterclaim for improvements--Payment for land on default by plaintiff.
The judgment of the court upon such findings, if in favor of the plaintiff for the recovery of the real property, and in favor of the defendant for the counterclaim, shall require such plaintiff to pay to the defendant the value of the improvements as determined by such findings, within sixty days from the rendition of such judgment less the amount of the damages, if any recovered, for withholding the land and for waste committed upon said land by the defendant; and until such payment, or tender and deposit in the office of the clerk of courts in which such action is pending, no execution or other process shall issue in such action to dispossess such defendant, his heirs, or assigns; and in default of such payment by the plaintiff, the defendant shall pay to the plaintiff the value of said land as determined by such findings, and the damages, if any recovered, for withholding the same and for waste committed upon said land by him.
Source: CCivP 1877, § 644; CL 1887, § 5458; SL 1893, ch 68; RCCivP 1903, § 684; RC 1919, § 2860; SDC 1939 & Supp 1960, § 37.1519.
21-41-17. Enforcement against property of claim against deceased defendant.
Any creditor of any deceased person, made a party defendant to an action brought pursuant to § 21-41-1, may set forth in his answer, his claim against such decedent, and if the amount and validity of such claim be established upon the trial and it be also established that the estate of said decedent has never been administered and that the premises involved in the action are subject to the payment of such claim, such claimant may have judgment in the action for the amount of his claim and taxable costs against the premises involved in the action, and unless the same shall be paid by the plaintiff or some other party to the action having the right to pay the same within such time as shall be prescribed by the judgment of the court, said premises may be sold to pay the same, upon the notice and in the manner provided by law for sales of real property on execution.
Source: SL 1903, ch 194, § 8; SL 1905, ch 81; RC 1919, § 2854; SDC 1939 & Supp 1960, § 37.1506.
21-41-18. Jurisdiction of court to determine rights in decedents' estates.
The court shall have jurisdiction in such action to determine who are the heirs at law, devisees, and legatees of any deceased person who had in his lifetime any interest in or lien or encumbrance on the premises involved between themselves, as well as with respect to the rights of the plaintiff, and to make an adjudication upon the rights of such heirs, devisees and legatees and of all creditors of such deceased persons in and to such premises, which shall be valid and binding upon them and upon all the world, and if such heirs at law, devisees, and legatees of such deceased person and the creditors of such deceased person and the unknown defendants in said action, or any of them, shall fail to appear in such action and set forth and assert their interest in or claim to the premises involved, they shall be by the judgment and decree of the court forever barred and enjoined from thereafter claiming or asserting any title or interest in or lien or encumbrance upon or claim to the premises involved in the action.
Source: SL 1903, ch 194, § 4; SL 1905, ch 81; RC 1919, § 2849; SDC 1939 & Supp 1960, § 37.1508.
21-41-19. Jurisdiction of decedent's estate from time of publication of summons.
From the time of the publication of the summons, as directed in §§ 21-41-8 and 21-41-9, the circuit court shall have jurisdiction of the estate of any deceased person described in § 21-41-18, to make final settlement thereof, so far as may be necessary to a complete determination of the title to the premises involved, or of the interest or lien of any party or parties therein.
Source: SL 1903, ch 194, § 4; SL 1905, ch 81; RC 1919, § 2849; SDC 1939 & Supp 1960, § 37.1508.
21-41-20. Repealed.
Source: SDC 1939, § 37.1524 as enacted by SL 1947, ch 171; SL 1955, ch 136; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2021, ch 34, § 2.
21-41-22. Allowance of plaintiff's claim for improvements--Value alleged in complaint.
In an action brought to determine adverse claims to real estate, under the provisions of this chapter, affecting real estate upon which permanent improvements have been made by a plaintiff, or those under whom he claims, holding under color of title adversely to the claim of a defendant or intervenor, in good faith, if such plaintiff is unsuccessful, the value of such improvements must be allowed as a claim in favor of such plaintiff. In order to be entitled to maintain such claim, said plaintiff, either in his original complaint, or by amended complaint, must set forth, among other things, the value of the land aside from the improvements thereon, and also as accurately as practicable the improvements upon the land and the value thereof. In such case, said action shall proceed as provided in § 21-41-15.
Source: SL 1949, ch 140, § 2; SDC Supp 1960, § 37.1516-1.
21-41-23. Judgment for defendant requiring payment for plaintiff's improvements--Payment for land on default by defendant.
The judgment of the court upon findings pursuant to § 21-41-22, if in favor of the defendant or intervenor, for the recovery of the real property, and in favor of the plaintiff or intervenor for the value of such improvements, shall require the person found entitled to recover said real property to pay to the person entitled to recover for such improvements the value of the improvements as determined by such findings, within sixty days from the rendition of such judgment, less the amount of the damages, if any, recovered, for withholding the land, and for waste committed upon said land by the party adjudged entitled to recover the value of such improvements; and until such payment, or a tender of deposit in the office of the clerk of courts in which such action is pending, no execution or other process shall issue in such action to dispossess the person entitled to the value of such improvements, his heirs or assigns; and in default of such payment by the person entitled to recover said real property, the person entitled to the value of the improvements shall pay to the person entitled to recover the real property the value of said land as determined by such findings, and the damages, if any, recovered, for withholding same and for waste committed upon said land by him.
Source: SL 1949, ch 140, § 3; SDC Supp 1960, § 37.1516-2.
21-41-24. Bond required to indemnify against defenses permitted after judgment.
Before the entry of judgment in such action, the plaintiff must execute a bond of indemnity to the defendants in the action who shall be served by publication, with sufficient surety to be approved by the court, in such sum as the court shall direct, conditioned that if any defendant shall be permitted to defend after judgment, as provided in § 21-41-25, and such defense shall be successful, that the plaintiff will pay to such defendant the value of his interest in said premises, and his costs of defending the action. Provided, however, that personal service of the summons and complaint outside of this state, in the manner provided by the laws of this state, shall, for the purposes of this section, be deemed personal service and not service by publication.
Source: SL 1903, ch 194, § 9; SL 1905, ch 81; RC 1919, § 2855; SDC 1939, § 37.1514; SL 1943, ch 138.
21-41-25. Relief from default judgment--Rights of good faith purchaser preserved.
The court may, in its discretion and upon such terms as may be just, at any time within two years after the entry of judgment, relieve a defendant in such action from the judgment, if taken against him through his mistake, inadvertence, surprise, or excusable neglect, and allow such party to defend the action, but the defense, if successful, shall be without prejudice to the rights of a purchaser or encumbrancer in good faith of the premises from the plaintiff after the entry of such judgment, and before the making of the order permitting such defendant to defend.
Source: SL 1903, ch 194, § 9; SL 1905, ch 81; RC 1919, § 2855; SDC 1939, § 37.1514; SL 1943, ch 138.
21-42-1
Tax purchasers entitled to bring action--Purpose of action.
21-42-2
Time of bringing action.
21-42-3
Delinquent taxes paid before action brought.
21-42-4
Commencement by summons and complaint--Party plaintiff--Known and unknown
parties defendant.
21-42-5
Joinder of different tracts in same action--Joinder of parties defendant.
21-42-6
Contents of complaint.
21-42-7
Procedural rules not exclusive of other procedures to perfect tax title.
21-42-8
Summons and complaint in same form as for civil actions--Service as in quiet title
actions.
21-42-9
Lis pendens notice recorded by register of deeds--Destruction of records.
21-42-10
Redemption of land by defendant--Certificate of redemption--Apportionment of taxes
assessed--Personal property taxes.
21-42-11
Appearance by defendant--Defenses permitted.
21-42-12
Venue of action.
21-42-13
Proof required on default judgment--Treasurer's certificate as prima facie evidence.
21-42-14
Findings of fact and conclusions of law.
21-42-15
Bond required of plaintiff to indemnify against successful defense after judgment.
21-42-16
Contents of judgment--Direction to issue deed--Costs.
21-42-17
Tax deed issued by treasurer--Form--Acknowledgment.
21-42-18
Estate vested in grantee by deed.
21-42-19
Relief from default judgment.
21-42-20
Bond not required of county--Liability on successful defense after judgment.
21-42-21
Employment of additional counsel to assist state's attorney.
21-42-1. Tax purchasers entitled to bring action--Purpose of action.
In addition to and not in lieu of the method otherwise provided by the statutes of this state for the taking of tax deeds any purchaser of property at tax sale, or his assigns, including the county where property is bid in by the county treasurer for lack of bidders, desiring a tax deed for any such property or desiring to quiet the title to property already covered by tax deeds may bring an action in the circuit court for the county within which such real property is situated, which said action shall be brought as an action in equity, and except as herein provided, shall be prosecuted the same as in other civil actions.
Source: SL 1941, ch 161, § 1; SL 1943, ch 140; SDC Supp 1960, § 37.16A01.
21-42-2. Time of bringing action.
Said action may be commenced at any time after the expiration of four years from the date of the tax certificate or certificates and in cases where the action be commenced upon existing tax deeds, said action may be commenced at any time.
Source: SL 1941, ch 161, § 1; SL 1943, ch 140; SDC Supp 1960, § 37.16A01.
21-42-3. Delinquent taxes paid before action brought.
Before bringing such action, the plaintiff, unless it be the county, shall pay delinquent taxes assessed subsequent to the date he procured the certificate of sale which may then be due to the county.
Source: SL 1941, ch 161, § 1; SL 1943, ch 140; SDC Supp 1960, § 37.16A01.
21-42-4. Commencement by summons and complaint--Party plaintiff--Known and unknown parties defendant.
The action shall be commenced by the filing of a summons and complaint as in other civil actions as required by the statutes of the State of South Dakota in which the party or parties so commencing the same shall be named as plaintiff, or plaintiffs, and all persons who have or claim to have, or who appear of record to have any interest or estate in, claim to, or lien or encumbrance upon the premises described in the summons and complaint, or any part thereof, or if dead, their heirs, devisees, legatees, personal representatives, or creditors, known or unknown, or any or either of them, and all persons unknown who may have or claim to have any estate or interest in or lien or encumbrance upon such real property or any part thereof, shall be named as defendants; if the county is the applicant, the action shall be brought in the name of the county.
Source: SL 1941, ch 161, § 2; SL 1943, ch 140; SDC Supp 1960, § 37.16A02; SL 1995, ch 167, § 188.
21-42-5. Joinder of different tracts in same action--Joinder of parties defendant.
Several tracts of land, contiguous or noncontiguous, and whether owned by different defendants and whether sold at the same time or different times, may be set forth in one complaint and all persons claiming any title to, or interest in or lien upon, any of said premises, or any part thereof, although their said claims are independent and not in common and do not cover the same tracts may be joined as defendants.
Source: SL 1941, ch 161, § 2; SL 1943, ch 140; SDC Supp 1960, § 37.16A02.
21-42-6. Contents of complaint.
The complaint shall, among other things, set forth the description of the real property involved, the year in which the delinquent taxes were assessed, the amount for which the property was sold, the amount of taxes subsequently paid, the date of the sale of said property, the person to whom sold, the nature of the interest in each separate part of said land held by the respective defendants, or any of them and the amount of money necessary to redeem said lands from said sale.
Source: SL 1941, ch 161, § 2; SL 1943, ch 140; SDC Supp 1960, § 37.16A02.
21-42-7. Procedural rules not exclusive of other procedures to perfect tax title.
The rules of procedure outlined by §§ 21-42-4 to 21-42-6, inclusive, shall apply to actions hereafter brought to procure tax deeds under the provisions of this chapter, or to perfect titles under existing tax deeds, but shall not be exclusive of any other statutory procedure to procure tax deeds and to quiet title upon tax deeds.
Source: SL 1941, ch 161, § 2; SL 1943, ch 140; SDC Supp 1960, § 37.16A02.
21-42-8. Summons and complaint in same form as for civil actions--Service as in quiet title actions.
The summons and complaint must be of the same form and substance as otherwise provided by the laws of this state for the commencement of civil actions, and shall be served in the same manner as provided by §§ 21-41-8 and 21-41-9.
Source: SL 1941, ch 161, § 4; SL 1943, ch 140; SDC Supp 1960, § 37.16A04.
21-42-9. Lis pendens notice recorded by register of deeds--Destruction of records.
Upon the filing of the summons and complaint, a notice of pendency of the action shall be recorded in the office of the register of deeds of the county in which the action is pending; the lis pendens so recorded shall be filed and recorded by the register of deeds in the same manner and as required by law for the recording of instruments concerning real 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: SL 1941, ch 161, § 3; SL 1943, ch 140; SDC Supp 1960, § 37.16A03; SL 1981, ch 45, § 18.
21-42-10. Redemption of land by defendant--Certificate of redemption--Apportionment of taxes assessed--Personal property taxes.
Any defendant to an action may make redemption of the lands from tax sales by paying the total amount of delinquent taxes, penalties and interest thereon at the Category D rate of interest as established in § 54-3-16, which shall have been paid by the plaintiff or which is due the county, if the county is plaintiff, together with costs of the action. Upon payment, a certificate of redemption shall be issued by the county treasurer of the county to the defendant and the action shall be dismissed. If a defendant desires to redeem from a tax sale and pay all subsequent taxes and costs upon any lot, piece, or parcel of real estate, the county treasurer shall permit redemption and payment in all cases where tax deeds have not been issued prior to July 1, 1941. If the real estate has been assessed together with other real estate, then the county treasurer shall compute and apportion the tax that should have been assessed against the real estate sought to be redeemed as if the property had been separately assessed. In cases which have undivided interests in real property so assessed as shown of record, the county treasurer shall compute and apportion the tax according to the interests sought to be redeemed. Any personal property taxes which are a lien upon the real estate shall be computed and apportioned on the same percentage basis as the tax assessed against the real estate is apportioned.
Source: SL 1941, ch 161, § 5; SL 1943, ch 140; SDC Supp 1960, § 37.16A05; SL 1983, ch 28, § 38; SL 1984, ch 319, § 19.
21-42-11. Appearance by defendant--Defenses permitted.
Any defendant may appear in said action within the time provided by law for appearances in civil actions and may set up any defense to said action he may have, and may therein question the legality, validity, or sufficiency of any act had in connection with the assessment thereof, the tax levy thereon, or sale of said land.
Source: SL 1941, ch 161, § 5; SL 1943, ch 140; SDC Supp 1960, § 37.16A05.
21-42-12. Venue of action.
Such action shall be tried in the circuit court for the county in which said premises are situated.
Source: SL 1941, ch 161, § 6; SL 1943, ch 140; SDC Supp 1960, § 37.16A06.
21-42-13. Proof required on default judgment--Treasurer's certificate as prima facie evidence.
No judgment shall be entered against any defendant in default without proof of the allegations of the complaint, but the treasurer's certificate of sale shall be prima facie evidence of the validity, legality, and sufficiency of all of the proceedings leading up to the issuance of such certificate in all cases.
Source: SL 1941, ch 161, § 6; SL 1943, ch 140; SDC Supp 1960, § 37.16A06.
21-42-14. Findings of fact and conclusions of law.
The court shall make findings of fact and conclusions of law and in its conclusions of law determine the fair and reasonable value of the land; that the land was subject to taxation and was duly and legally assessed; the year for which it was assessed; the amount of the assessment thereof; that said land was sold for delinquent taxes; that due notice of the sale of the land was given as provided by law; the date of the sale thereof; the person to whom sold; the amount for which it was sold; the fact of the assignment of the certificate of sale, if assigned; that the said land or any part thereof has not been redeemed from said sale, if such be the case; that the defendants named were proper parties to said action, and that if there are any persons other than those named who should have been named as defendants in said action, they were wholly unknown to the plaintiff at the time of the commencement of the action, and determine the amount of the bond as provided in § 21-42-15 to be given.
Source: SL 1941, ch 161, § 7; SL 1943, ch 140; SL 1945, ch 165, § 1; SDC Supp 1960, § 37.16A07.
21-42-15. Bond required of plaintiff to indemnify against successful defense after judgment.
Before the entry of judgment in such action, the plaintiff, if other than the county, must execute a bond of indemnity to the defendants in the action who shall have been served by publication, with sufficient surety to be approved by the court, in such sum as the court shall direct in its findings of fact, conditioned that if any defendant so served by publication shall be permitted to defend after judgment, as provided in § 21-42-19, and such defense shall be successful, that the plaintiff will pay to such defendant the value of his interest in said premises, and his costs of defending the action, provided that the value of the interest of such defendant cannot exceed and must be based upon the value of the premises as found by the court in said judgment.
Source: SL 1941, ch 161, § 8; SL 1943, ch 140; SDC Supp 1960, § 37.16A08.
21-42-16. Contents of judgment--Direction to issue deed--Costs.
The judgment entered on the findings of fact and conclusions of law in all cases under the provisions of this chapter, shall decree that such judgment is binding and conclusive upon the defendants named and served therein, and upon all defendants who are unknown to the plaintiff at the time of the commencement of said action, and that all defendants are forever barred and enjoined from claiming or asserting any claim, right, title or interest of any kind whatsoever in and to the property described in said judgment, or any part thereof; said judgment by its terms shall order and direct the county treasurer of said county to issue a deed of conveyance in the name of the State of South Dakota to the plaintiff for said land and decree that said deed shall vest in the plaintiff the title to said premises in fee simple, free and clear of all cloud on the title thereof by reason of any claim or any estate or interest in or lien or encumbrance upon said premises, or any part thereof, by any persons known or unknown and made defendants in said action. The court shall allow the successful party his costs.
Source: SL 1941, ch 161, §§ 6, 7; SL 1943, ch 140; SL 1945, ch 165, § 1; SDC Supp 1960, §§ 37.16A06, 37.16A07.
21-42-17. Tax deed issued by treasurer--Form--Acknowledgment.
Upon filing with the county treasurer of a certified copy of the decree and judgment hereinbefore provided by § 21-42-16, he must issue a tax deed to the real estate described in the judgment which deed in substance shall be as follows:
"Whereas, ________ did on the ________ day of ________, 20____, produce to the undersigned, ________, treasurer of the county of ________, in the State of South Dakota, a certified copy of a judgment and decree entered by the circuit court of the ________ Judicial Circuit of the State of South Dakota, for the county of ________, in an action wherein ________ was plaintiff, and ________, defendant, which certified copy has been filed in the office of the county treasurer of the said county, from which it appears that the said property, hereinafter described was sold to ________ for the sum of ________, being the amount due thereon for the nonpayment of taxes, penalties, interest, and costs for the year 20____ and certificate of tax sale was duly issued and filed as required by law, and it further appearing that by virtue of the judgment and decree hereinbefore referred to that a conveyance of said lands be issued to the said ________.
Now, therefore, this indenture made this ________ day of ________, 20____, between the State of South Dakota, by ________, treasurer of said county, party of the first part, and the said ________ of the second part. Witnesseth: that the said party of the first part, for and in consideration of the premises and the sum of one dollar in hand paid, has granted, bargained and sold and by these presents does grant, bargain, sell, and convey unto the said party of the second part, ________ heirs and assigns, forever, the following described real property situated in the county of ________ in the State of South Dakota, to wit: (describe the land), to have and to hold with the appurtenances thereto belonging to the said party of the second part, ________ heirs and assigns forever.
In testimony whereof the said ________, treasurer of said county of ________ has hereunto set his hand on the day and year first above written.
________________________________
Treasurer of __________ County
Attest:
______________________________
Auditor __________ County"'
(SEAL)
Such deed shall be acknowledged by the treasurer before some person authorized by law to take acknowledgements of deeds.
Source: SL 1941, ch 161, § 9; SL 1943, ch 140; SDC Supp 1960, § 37.16A09.
21-42-18. Estate vested in grantee by deed.
A deed issued pursuant to this chapter shall vest in the grantee an absolute estate in fee simple in such real property, subject, however, to all claims which the state may have therein for taxes, liens, or encumbrances.
Source: SL 1941, ch 161, § 10; SL 1943, ch 140; SDC Supp 1960, § 37.16A10.
21-42-19. Relief from default judgment.
The court may, in its discretion and upon such terms as may be just, at any time within one year after the entry of judgment, relieve a defendant in such action, served by publication of the summons, from the judgment, if taken against him through his mistake, inadvertence, surprise, or excusable neglect, and allow such party to defend the action, but the defense, if successful, shall not affect the title of the plaintiff, or his successors in interest to, or valid encumbrancers of, said premises.
Source: SL 1941, ch 161, § 8; SL 1943, ch 140; SDC Supp 1960, § 37.16A08.
21-42-20. Bond not required of county--Liability on successful defense after judgment.
The county as plaintiff shall not be required to furnish a bond pursuant to § 21-42-15, but shall be liable for the value of the interest of a defendant served by publication and permitted to defend to the same extent and for the same length of time and under the same provisions as set out in § 21-42-19 in cases where the county is not the plaintiff.
Source: SL 1941, ch 161, § 8; SL 1943, ch 140; SDC Supp 1960, § 37.16A08.
21-42-21. Employment of additional counsel to assist state's attorney.
In counties where it shall be determined by the board of county commissioners of such county that the state's attorney of such county is unable to handle the work required in the prosecution of the action or actions as herein authorized by reason of the additional work imposed upon him by the adoption of this chapter, then and in such cases, the state's attorney is hereby authorized to contract with additional counsel to prosecute and bring such action or actions herein authorized, which additional counsel shall be by the state's attorney appointed as an assistant state's attorney, the contract with such additional counsel to be approved by the county commissioners, and his compensation paid out of the appropriate fund of said county.
Source: SL 1941, ch 161, § 6; SL 1943, ch 140; SDC Supp 1960, § 37.16A06.
21-43-1
Action to determine adverse claim to money, property or chose in action.
21-43-2
Action by surety to compel satisfaction of debt.
21-43-3
Procedure.
21-43-1. Action to determine adverse claim to money, property or chose in action.
An action may be brought by one person against another, for the purpose of determining an adverse claim which the latter makes against the former, for money or property including a chose in action upon an alleged obligation.
Source: SL 1903, ch 118; RC 1919, § 2872; SDC 1939 & Supp 1960, § 37.1601.
21-43-2. Action by surety to compel satisfaction of debt.
An action may be brought against two or more persons for the purpose of compelling one to satisfy a debt due to the other, for which plaintiff is bound as a surety.
Source: SL 1903, ch 118; RC 1919, § 2872; SDC 1939 & Supp 1960, § 37.1601.
21-43-3. Procedure.
The procedure for actions under this chapter shall be according to the provisions of Title 15, but such of the provisions of chapters 21-14 and 21-41 as are not inconsistent with those of Title 15 shall be applicable to actions under this chapter.
Source: SDC 1939 & Supp 1960, § 37.1602.
CHAPTER 21-44
TERMINATION OF LIFE ESTATES
21-44-1 Definition of terms.
21-44-2 Recording death certificate--Prima facie evidence--Affidavit identifying property.
21-44-3 Proceeding for termination of life estate--Contents of verified petition.
21-44-4 Joinder of proceedings as to two or more life tenants.
21-44-5 Joinder of proceedings as to all property held by life tenant.
21-44-6 Life estates in personal property subject to termination--Joinder with proceedings as to real property.
21-44-7 Lis pendens notice required if property in another county affected.
21-44-8 Order fixing time and place for hearing on petition--Contents.
21-44-9 Publication of notice of hearing--Mail notice to parties--Other notice ordered by court.
21-44-10 Repealed
21-44-11 Validation of prior inheritance tax determinations in circuit court.
21-44-12 Persons permitted to appear at hearing on termination of estate.
21-44-13 Procedure on contested petitions.
21-44-14 Inquiry and proof required on uncontested petition.
21-44-15 Clear and convincing proof required--Adjournment to secure additional evidence--Affidavits to establish death of life tenant.
21-44-16 Statement or affidavit establishing death of person in military service.
21-44-17 Presumption of death after seven years' absence.
21-44-18 Denial of petition if proof insufficient--Order to proceed in quiet title action.
21-44-19 Judgment finding life tenant deceased and terminating life estate--Effect of judgment.
21-44-20 Validation of prior proceedings as to personal property.
21-44-21 Validation of prior proceedings joining different claims as to personal property--Protection of vested rights.
21-44-22 Validation of prior proceedings where notice or allegations were insufficient.
21-44-23 Recording of judgment terminating estate--Prima facie evidence.
21-44-24 Action to set aside judgment terminating estate--Bona fide purchaser or encumbrancer protected.
21-44-25 Prospective and retrospective application of chapter.
21-44-26 Remedy not exclusive.
21-44-27 Spousal joint tenancy termination.
21-44-1. Definition of terms.
Terms used in this chapter, unless the context otherwise plainly requires, shall mean:
(1) "Life tenant," any person who under the terms of any will, deed, grant, mortgage, assignment, or other instrument holds during his lifetime any right, title, or interest in, or lien or encumbrance upon, real estate or personal property within this state, which right, title, or interest or lien or encumbrance, by the terms of such will, deed, grant, mortgage, assignment, or other instrument, terminates upon and by reason of his death, and by such terms thereupon passes to some other designated person or persons; and including an interest as a joint tenant or joint owner as distinguished from a tenant in common or owner in common of such real estate, or such lien or encumbrance;
(2) "Remainderman," any person or persons to whom by such terms of such will, deed, grant, mortgage, assignment, or other instrument, such right, title, or interest or lien or encumbrance, or any part or portion thereof, passes upon the death of the life tenant, and including a surviving joint tenant or surviving joint owner, and the successor in interest of any of them.
Source: Supreme Court Rule 572, 1939; SDC 1939 & Supp 1960, § 37.1201.
21-44-2. Recording death certificate--Prima facie evidence--Affidavit identifying property.
In all cases of joint tenancy in lands or personal property, and in all cases where any estate, title or interest in, or lien upon, lands or personal property has been or may be created, which estate, title, interest, or lien was or is to continue only during the life of any person named or described in the instrument by which such estate, title, interest or lien was created, a copy of the record of the death of any such joint tenant or of the person upon whose life such estate, title, interest, or lien was or is limited, duly certified by any officer who is required by the laws of the state or county in which such record is made, to keep a record of the death of persons occurring within the jurisdiction of such officer, may be recorded in the office of the register of deeds of the county in which such lands are situated or in the proper office for filing as to such personal property. The record of such certified copy is prima facie evidence of the death of such person and the termination of such joint tenancy and of all such estate, title, interest, and lien as was or is limited upon the life of such person. In order to identify the property affected by the death of such person, the person causing the certificate to be recorded shall attach thereon an affidavit setting out the legal descriptions of the property involved.
This section shall not be treated or construed as exclusive of any other remedy authorized by law or rule of court but as cumulative to such other remedy.
Source: SL 1957, ch 198; SDC Supp 1960, § 37.1214; SL 2001, ch 109, § 1; SL 2021, ch 34, § 3.
21-44-3. Proceeding for termination of life estate--Contents of verified petition.
Any person who claims that a life tenant is deceased may file in the circuit court for the county in which is situated the real estate or personal property involved or some portion thereof, his duly verified petition setting forth:
(1) A description of the real estate or personal property involved;
(2) A complete identification of the instrument which is the basis of the proceeding, and a statement of the book and place of record thereof within this state;
(3) The fact as to the date and place of death of the life tenant;
(4) The last known post office address of the life tenant;
(5) The names and post office addresses, so far as known to the petitioner, of the surviving heirs or heirs at law of the life tenant;
(6) A statement of the names and addresses of the remaindermen entitled to such property on the expiration of the life estate.
Source: Supreme Court Rule 573, 1939; SDC 1939, § 37.1203; Supreme Court Rule adopted August 10, 1943.
21-44-4. Joinder of proceedings as to two or more life tenants.
In any proceeding under the provisions of this chapter, or any other statute or rule of court pertaining to the termination of life estates as defined in § 21-44-1, where it is claimed that two or more life tenants are deceased, each of whom had an interest in the property involved, or part thereof, all such life tenancies may be included in one proceeding.
Source: Supreme Court Order No. 4, 1957; SDC Supp 1960, § 37.1213 (1).
21-44-5. Joinder of proceedings as to all property held by life tenant.
In any proceeding under the provisions of this chapter, or any other statute or rule of court pertaining to the termination of life estates as defined in § 21-44-1, all property in which an interest was held by any life tenant may be included in one proceeding notwithstanding the fact that the remaindermen may be different, in whole or in part, as to any such property.
Source: Supreme Court Order No. 4, 1957; SDC Supp 1960, § 37.1213 (2).
21-44-6. Life estates in personal property subject to termination--Joinder with proceedings as to real property.
In any proceeding under the provisions of this chapter, or any other statute or rule of court pertaining to the termination of life estates as defined in § 21-44-1, the right of a life tenant in personal property may be terminated either as the sole purpose of the proceeding or in connection with the termination of an interest in real estate, for which purpose the designation of real property in any such statute or rule of court shall be deemed to include personal property, and reference therein to recording data or recording as applying to real property shall be construed to include filing data or filing as may be applicable to personal property.
Source: Supreme Court Order No. 4, 1957; SDC Supp 1960, § 37.1213 (3).
21-44-7. Lis pendens notice required if property in another county affected.
If a petition filed pursuant to § 21-44-3 describes real estate or personal property situated in any county other than that in which such petition is filed, immediately after the filing of such petition, there shall be recorded in the office of the register of deeds of such other county or counties or in the proper office for filing with respect to such personal property a notice of the pendency of the proceeding, containing the title and the object of the proceeding and a description of the property to be affected thereby.
Source: Supreme Court Rule adopted August 10, 1943; Supreme Court Rule adopted April 19, 1948; SDC Supp 1960, § 37.1205.
21-44-8. Order fixing time and place for hearing on petition--Contents.
Upon the filing of the petition, the court shall enter an order which shall set forth the name of the petitioner, the name of the life tenant, a description of the real estate or personal property involved, the date of the death of the life tenant, as set forth in the petition, and the nature of the right, title, or interest, or lien or encumbrance as to which the petition prays the termination, and the time and place for hearing.
Source: Supreme Court Rule 574, 1939; SDC 1939, § 37.1204; Supreme Court Rule, Order No. 3, 1954; SL 1982, ch 174, § 3.
21-44-9. Publication of notice of hearing--Mail notice to parties--Other notice ordered by court.
Notice of the hearing shall be given by publication of the order for hearing in a legal newspaper of the county in which such petition is filed, once a week for three successive weeks prior to the hearing, and by mailing by regular mail true copies of the order addressed to the life tenant at the life tenant's last known post office address, to the Department of Social Services in Pierre, South Dakota, to the remaindermen entitled to the property on the expiration of the life estate, and to the heirs or heirs at law of the life tenant at their respective post office addresses as set forth in the petition, at least fourteen days prior to the date of the hearing. The court may, in the order for hearing, require any other or further notice to be given which the court deems reasonable. The department need not be specifically named in the notice and may file a claim for any indebtedness owed pursuant to §§ 28-6-23 to 28-6-27, inclusive, at or before the hearing.
Source: SDC 1939, § 37.1205; Supreme Court Rule adopted August 10, 1943; Supreme Court Rule adopted April 19, 1948; SL 1982, ch 174, § 4; SL 1994, ch 229, § 11.
21-44-10. Repealed.
Source: SDC 1939, § 37.1212 as enacted by SL 1953, ch 207, § 1; SL 1964, ch 214, § 3; SL 1982, ch 174, § 5; SL 1986, ch 176; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2021, ch 34, § 4.
21-44-11. Validation of prior inheritance tax determinations in circuit court.
All proceedings had prior to July 1, 1953, in any of the circuit courts of this state for the termination of a life estate, or life estates, wherein
(1) An inheritance tax report has been filed with the Department of Revenue of the State of South Dakota; and
(2) His receipt therefor has been issued; and
(3) A stipulation has been made by him as to whether or not any inheritance tax is due the State of South Dakota, and if so, the amount thereof, upon which the court has issued and entered its order declaring whether or not any inheritance tax is due the state, and if so the amount thereof; are hereby legalized, cured and validated; and all such proceedings are hereby declared to be in all respects of like force and effect as though the determination of such inheritance tax was had in the county court.
Source: SL 1953, ch 207, § 2; SDC Supp 1960, § 65.0345; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011.
21-44-12. Persons permitted to appear at hearing on termination of estate.
Upon the hearing ordered pursuant to § 21-44-8 any person interested may appear and be heard on the question of whether the relief prayed for in the petition is to be granted.
Source: Supreme Court Rule 576, 1939; SDC 1939, § 37.1206; Supreme Court Rule adopted August 10, 1943.
21-44-13. Procedure on contested petitions.
If the petition is contested, the procedure shall be the same as upon other trials to the court, and the court must make findings of fact and conclusions of law unless the same are waived by any method of waiver provided by law.
Source: SDC 1939 & Supp 1960, § 37.1207.
21-44-14. Inquiry and proof required on uncontested petition.
Whether or not such petition is opposed, the court must inquire into the matters set forth and shall grant the prayer of such petition only if satisfied that the life tenant is in fact deceased, and that his right, title, or interest in, or lien or encumbrance upon, the real estate or personal property involved, has terminated by reason of his death.
Source: Supreme Court Rule 576, 1939; SDC 1939, § 37.1206; Supreme Court Rule adopted August 10, 1943.
21-44-15. Clear and convincing proof required--Adjournment to secure additional evidence--Affidavits to establish death of life tenant.
Clear and convincing proof of the identity and death of the life tenant must be submitted. If the court is not satisfied with the proof offered at the hearing whether it be contested or not, the court may adjourn such hearing to a convenient future date, and require the petitioner at such adjourned hearing to produce a certified copy of the death certificate of the life tenant, if he died within a state where such certificates are a matter of public record, or in lieu thereof, the affidavits of two or more persons, that they knew the life tenant in his lifetime, and after his death saw his body.
If such affidavits are made outside South Dakota, they must be accompanied by a statement of an officer of the state or country where such affidavits are made, that he personally knows affiants, that they are persons having a good reputation for truth and veracity, and as law abiding citizens.
Source: Supreme Court Rule adopted August 10, 1943; SDC Supp 1960, § 37.1206.
21-44-16. Statement or affidavit establishing death of person in military service.
If the life tenant was in the military service at the time of his death, the written statement of his commanding officer giving the facts of his death, signed by such commanding officer with his rank and organization, or the affidavit of one or more soldiers who knew the fact of his death, may be accepted in lieu of any of the proof required by § 21-44-15.
Source: Supreme Court Rule adopted August 10, 1943; SDC Supp 1960, § 37.1206.
21-44-17. Presumption of death after seven years' absence.
If any person upon whose life any estate or interest in property depends, remains without the United States or absents himself in the state or elsewhere for seven years together, such person must be accounted naturally dead in any action or special proceeding concerning any such property in which his death shall come in question unless sufficient proof be made in such case that he is living.
Source: CCivP 1877, § 498; CL 1887, § 5312; RCCivP 1903, § 537; RC 1919, § 2729; SDC 1939, § 36.0205; SL 1957, ch 191.
21-44-18. Denial of petition if proof insufficient--Order to proceed in quiet title action.
If the court is not satisfied with the proof finally offered, the court may deny the petition or order the petitioner to proceed under chapter 21-41.
Source: Supreme Court Rule adopted August 10, 1943; SDC Supp 1960, § 37.1206.
21-44-19. Judgment finding life tenant deceased and terminating life estate--Effect of judgment.
Upon the completion of the hearing and compliance with the procedure and proof required by this chapter, the court may make an order or judgment, finding as a fact upon the question of the death of the life tenant and adjudicating upon the termination of the life tenant's right, title, interest, lien, or claim upon the property involved. The order or judgment of the court shall be of the same force and effect and finality of other judgments of the circuit court. If the court shall find or adjudge as a fact that the life tenant is deceased, such adjudication terminates all right, title, interest, lien, or claim of such life tenant and those claiming under him adversely to the remainderman or his successor in interest, unless the same is asserted as provided in § 21-44-24.
Source: SDC 1939 & Supp 1960, § 37.1207.
21-44-20. Validation of prior proceedings as to personal property.
All proceedings had prior to July 1, 1957, for the termination of life estates in personal property pursuant to the provisions of this chapter, where such proceedings evidence a compliance with such chapter in every respect except that where real property is indicated therein reference is made to such personal property, or to both real and personal property upon a consolidation of proceedings, are hereby legalized, cured and validated, and all such life estates are deemed to be and are terminated.
Source: SL 1957, ch 504; SDC Supp 1960, § 65.0336.
21-44-21. Validation of prior proceedings joining different claims as to personal property--Protection of vested rights.
All proceedings for termination of life estate conducted prior to July 1, 1957, in which personal property has been involved, in which two or more life tenants were named, or in which the remaindermen were not identical as to all property involved, are hereby legalized, cured, and validated, and all such proceedings are hereby declared to be in all respects of like force and effect as if expressly authorized by the law in effect at the time such proceeding was conducted.
If any person had any vested right in any property, or other rights of any kind, by reason of any of the matters referred to in paragraph one hereof, if no action or proceeding to enforce such right was begun prior to July 1, 1958, such rights shall be forever barred; and no action or proceeding so brought is of any force or effect, or maintainable in any court of this state, unless, prior to July 1, 1958, there was recorded in the office of the register of deeds of the county in which the property affected is situated, a notice of the pendency of such action, in accordance with the provisions of chapter 15-10.
Source: SL 1957, ch 503; SDC Supp 1960, § 65.0335.
21-44-22. Validation of prior proceedings where notice or allegations were insufficient.
In all instances where an order terminating a life estate of any person in and to any real property has been made by the circuit court as provided by this chapter, any and all such orders for hearing and all orders and decrees made and entered in any such proceedings in the circuit court aforesaid, where the hearing has been had at the time and place as specified in the order for hearing, notwithstanding the fact that less than three weeks intervened between the date of the first publication of notice and the date of hearing, and notwithstanding any failure in any or either of said proceedings to state the date of the death of the life tenant are hereby legalized and validated.
Source: SL 1953, ch 495; SL 1957, ch 502; SDC Supp 1960, § 65.0334.
21-44-23. Recording of judgment terminating estate--Prima facie evidence.
A certified copy of the order or judgment of the circuit court must be filed in the office of the register of deeds of the county wherein the real estate involved, or any portion sought to be affected by the judgment is situated. Thirty days after such recording the same shall constitute prima facie evidence of the fact of the death of the life tenant and of all other matters set forth in such order.
Source: SDC 1939 & Supp 1960, § 37.1208.
21-44-24. Action to set aside judgment terminating estate--Bona fide purchaser or encumbrancer protected.
Any person interested who questions the fact of such death may at any time commence an action in the circuit court to set aside the judgment or order of the court and file for record in the office of such register of deeds, a notice subscribed and verified by him, giving the description of the real estate or personal property involved, and the basis and reasons as to his raising such question as to the fact of death, but no purchaser or encumbrancer of such real estate or personal property, or any part thereof, in good faith and for value, more than thirty days after the recording of the certified copy of the order or judgment shall be subject to any claim growing out of the rights of the life tenant.
Source: SDC 1939 & Supp 1960, § 37.1208.
21-44-25. Prospective and retrospective application of chapter.
This chapter shall apply regardless of whether the death of the life tenant is claimed to have occurred prior or subsequent to the enactment of this code.
Source: SDC 1939 & Supp 1960, § 37.1202.
21-44-26. Remedy not exclusive.
The remedy provided by this chapter is not exclusive, and any remainderman or his successor in interest may resort to any other remedy provided by this code, for the establishment of any rights growing out of the claimed death of the life tenant.
Source: SDC 1939 & Supp 1960, § 37.1209.
21-44-27. Spousal joint tenancy termination.
If the spouse of a decedent is the sole surviving joint tenant in real property, any interested person may terminate the joint tenancy by furnishing the register of deeds of the county where the property is located with an affidavit setting forth the following:
(1) The name and date of death of the deceased joint tenant;
(2) The legal description of the real property held in joint tenancy;
(3) The name of the surviving spouse of the deceased joint tenant;
(4) That the surviving spouse of the deceased joint tenant is the sole surviving joint tenant in the real property.
The affidavit shall be accompanied by a certified copy of the death certificate of the deceased joint tenant.
Source: SL 1995, ch 119; SL 1996, ch 149; SL 1999, ch 114, § 1; SL 2021, ch 34, § 5.
21-45-1
Property subject to partition or sale--Persons entitled to bring action.
21-45-2
Consent by conservator to partition without action.
21-45-3
Persons to whom summons directed--General direction to unknown persons.
21-45-4
Grantees and lien holders need not be joined unless claim recorded.
21-45-5
Service of summons--Description included when served by publication.
21-45-6
Interests of parties set forth in complaint--Allegations as to unknown and contingent
interests.
21-45-7
Lis pendens notice required--Constructive notice.
21-45-8
Lien holders and encumbrancers of record joined by order of court--Referee to
determine status of liens and encumbrances.
21-45-9
Notice to lien holders to appear before referee--Service of notice--Report of referee.
21-45-10
Validation of prior appearances by personal representatives.
21-45-11
Contents of answer.
21-45-12
Trial and determination of rights of parties in property--Rights of unknown persons.
21-45-13
Abstract of title or title insurance policy--Notice of availability--Custody and
inspection--Allowance as costs.
21-45-14
Interest allowed on disbursements directed by court.
21-45-15
Order directing partition of property--Referees appointed.
21-45-16
Partition by original cotenancies--Further partition or cotenancy.
21-45-17
Partition according to respective rights of parties--Surveys and landmarks.
21-45-18
Road or street set aside before partition or sale.
21-45-19
Unequal division with compensatory payments between parties.
21-45-20
Report of referees on partition made.
21-45-21
Expenses and fees apportioned among parties.
21-45-22
Court action on referees' report--Appointment of new referees.
21-45-23
Judgment of partition--Persons bound by judgment.
21-45-24
Costs apportioned among parties by judgment--Lien and execution against property--Expense of litigation between some of parties.
21-45-25
Tenants for years not affected by judgment.
21-45-26
Judgment survives death of party.
21-45-27
Lien on undivided interest chargeable to share allocated--Partition costs preferred.
21-45-28
Sale ordered when partition not practical--Appointment of referees.
21-45-29
Estate for life or years set off in part of property not sold.
21-45-30
Sale at public auction to highest bidder--Publication of notice of sale.
21-45-31
Order for sale at site of property--Reservation of power to receive higher bid at
hearing.
21-45-32
Credit terms ordered by court and announced at sale--Separate sale of distinct tracts.
21-45-33
Referees and conservators disqualified from purchasing at sale.
21-45-34
Purchase by cotenant or lien holder.
21-45-35
Payment to guardian of proceeds of sale.
21-45-36
Undertaking required of conservator receiving proceeds of sale.
21-45-37
Security taken by referees delivered to parties for agreed or adjudicated shares--Filing
of agreement and receipt.
21-45-38
Separate securities taken in names of parties by referees.
21-45-39
Distribution by referees of proceeds of sale--Payment into court.
21-45-40
Clerk of courts to take and hold security and investment of proceeds.
21-45-41
Report of sale filed with clerk of courts--Contents.
21-45-1. Property subject to partition or sale--Persons entitled to bring action.
When several cotenants hold and are in possession of real property as partners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance or for life or lives or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein and for a sale of such property or a part thereof, if it appear that a partition cannot be made without great prejudice to the owners.
Source: CCivP 1877, § 548; CL 1887, § 5362; RCCivP 1903, § 587; RC 1919, § 2798; SDC 1939 & Supp 1960, § 37.1401.
21-45-2. Consent by conservator to partition without action.
The conservator of any minor or protected person, who is interested in real property held in joint tenancy or in common or in any other manner so as to authorize his being made a party to an action for the partition thereof, may consent to partition without action and agree upon the share to be set off to such minor or protected person entitled and may execute a release on his behalf to the owners of the shares of the parts to which they may be respectively entitled upon an order of the court.
Source: SDC 1939 & Supp 1960, § 37.1402; SL 1993, ch 213, § 102.
21-45-3. Persons to whom summons directed--General direction to unknown persons.
The summons in an action brought pursuant to § 21-45-1 must be directed to all the joint tenants and tenants in common, and all persons having an interest in, or any lien of record by mortgage, judgment, or otherwise, upon the property or upon any particular portion thereof; and if it appears necessary to adjudicate the rights of unknown claimants of any kind, it may contain a general direction as follows: to all persons unknown who have or claim to have, any interest in the property described in the complaint.
Source: CCivP 1877, § 552; CL 1887, § 5366; RCCivP 1903, § 591; RC 1919, § 2802; SDC 1939 & Supp 1960, § 37.1406.
21-45-4. Grantees and lien holders need not be joined unless claim recorded.
No person having a conveyance of, or claiming a lien on the property, or some part of it, need be made a party to the action, unless such conveyance or lien appear of record.
Source: CCivP 1877, § 550; CL 1887, § 5364; RCCivP 1903, § 589; RC 1919, § 2800; SDC 1939 & Supp 1960, § 37.1404.
21-45-5. Service of summons--Description included when served by publication.
The summons must be served in the manner prescribed for service of summons in actions to determine adverse claims to real estate, and when the summons is served by publication, it must contain a description of the property.
Source: CCivP 1877, § 553; CL 1887, § 5367; RCCivP 1903, § 592; RC 1919, § 2803; SDC 1939 & Supp 1960, § 37.1407.
21-45-6. Interests of parties set forth in complaint--Allegations as to unknown and contingent interests.
The interests of all persons in the property, whether such persons be known or unknown, must be set forth in the complaint specifically and particularly, as far as known to the plaintiff; and if one or more of the parties, or the share or quantity of interest of any of the parties, be unknown to the plaintiff or be uncertain or contingent, or the ownership of the inheritance depend upon an executory devise, or the remainder of a contingent remainder, so that such parties cannot be named, that fact must be set forth in the complaint.
Source: CCivP 1877, § 549; CL 1887, § 5363; RCCivP 1903, § 588; RC 1919, § 2799; Supreme Court Rule 578, 1939; SDC 1939 & Supp 1960, § 37.1403.
21-45-7. Lis pendens notice required--Constructive notice.
Immediately after filing the complaint in the circuit court, the plaintiff must record in the office of the register of deeds of the county or of the several counties in which the property is situated, a notice of the pendency of the action, containing the names of the parties, so far as known, the object of the action, and a description of the property to be affected thereby. From the time of filing such notice for record all persons shall be deemed to have notice of the pendency of the action.
Source: CCivP 1877, § 551; CL 1887, § 5365; RCCivP 1903, § 590; RC 1919, § 2801; SDC 1939 & Supp 1960, § 37.1405.
21-45-8. Lien holders and encumbrancers of record joined by order of court--Referee to determine status of liens and encumbrances.
If it appears to the court by the certificate of the register of deeds or clerk of courts, or by the verified statement of any person who may have examined or searched the records, that there are outstanding liens or encumbrances of record upon such real property, or any part or portion thereof, which existed and were of record at the time of the commencement of the action, and the persons holding such liens are not made parties to the action, the court must either order such persons to be made parties to the action, by an amendment or supplemental complaint, or appoint a referee to ascertain whether or not such liens or encumbrances have been paid or, if not paid, what amount remains due thereon, and their order among the liens or encumbrances severally held by such persons and the parties to the action, and whether the amount remaining due thereon has been secured in any manner, and if secured, the nature and extent of the security.
Source: CCivP 1877, § 557; CL 1887, § 5371; RCCivP 1903, § 596; RC 1919, § 2807; SDC 1939 & Supp 1960, § 37.1411.
21-45-9. Notice to lien holders to appear before referee--Service of notice--Report of referee.
The plaintiff must cause a notice to be served, a reasonable time previous to the day for appearance before the referee appointed on each person having outstanding liens of record, who is not a party to the action, to appear before the referee at a specified time and place, to make proof, by his own affidavit or otherwise, of the amount due or to become due contingently or absolutely thereon. In case such person be absent, or his residence be unknown, service may be made by publication or notice to his agent, under the direction of the court, in such manner as may be proper. The report of the referee thereon must be made to the court and must be confirmed, modified, or set aside and a new reference ordered, as the justice of the case may require.
Source: CCivP 1877, § 558; CL 1887, § 5372; RCCivP 1903, § 597; RC 1919, § 2808; SDC 1939 & Supp 1960, § 37.1411.
21-45-10. Validation of prior appearances by personal representatives.
In all partition proceedings including sales conducted before July 1, 1947 in the circuit courts of this state, in which any duly appointed, qualified and acting personal representative shall have appeared as a party plaintiff, or defendant, and the heirs or devisees therein were not named as parties or served with process, the appearance of such personal representative in his official capacity shall be deemed to have been an appearance on behalf of all the heirs or devisees, and where such proceedings including sales shall have been duly confirmed, the same is hereby legalized, cured and validated and the authority of such personal representative to appear as a party plaintiff or defendant on behalf of the heirs or devisees is hereby confirmed.
Source: SL 1947, ch 166; SDC Supp 1960, § 65.0322.
21-45-11. Contents of answer.
The defendants who have been served with process in the action, or who have appeared without such service, must set forth in their answers, fully and particularly, the origin, nature, and extent of their respective interests in the property; and if such defendants claim a lien on the property by mortgage, judgment, or otherwise, they must state the original amount and date of same, and the sum remaining due thereon; also whether the same has been secured in any other way or not; and if secured, the nature and extent of such security, or they are deemed to have waived their right to such lien.
Source: CCivP 1877, § 554; CL 1887, § 5368; RCCivP 1903, § 593; RC 1919, § 2804; Supreme Court Rule 579, 1939; SDC 1939 & Supp 1960, § 37.1408.
21-45-12. Trial and determination of rights of parties in property--Rights of unknown persons.
The rights of the several parties, plaintiff as well as defendant, may be put in issue, tried, and determined in such action; and when a sale of the premises is necessary, the title must be ascertained by proof to the satisfaction of the court, before the judgment of sale can be made; and where service of the complaint has been made by publication, like proof must be required of the right of the absent or unknown parties before such judgment is rendered; except that where there are several unknown persons having an interest in the property, their rights may be considered together in the action, as not between themselves.
Source: CCivP 1877, § 555; CL 1887, § 5369; RCCivP 1903, § 594; RC 1919, § 2805; SDC 1939 & Supp 1960, § 37.1409.
21-45-13. Abstract of title or title insurance policy--Notice of availability--Custody and inspection--Allowance as costs.
If it appears to the court that it was necessary to have made an abstract of the title to the property to be partitioned, and such abstract shall have been procured by the plaintiff, or if the plaintiff shall have failed to have the same made before the commencement of the action, and any of the defendants shall have had such abstract afterwards made, the cost of the abstract, with interest thereon from the time the same is subject to the inspection of the respective parties, must be allowed and taxed. Whenever such abstract is produced by the plaintiff before the commencement of the action, he must file with his complaint a notice that an abstract of the title has been made and is subject to the inspection and use of all the parties to the action, designating therein where the abstract will be kept for inspection. But if the plaintiff shall have failed to procure such abstract before commencing the action, and any defendant shall procure the same to be made, he shall, as soon as he has directed it to be made, file a notice thereof in the action with the clerk of courts, stating who is making the same, and where it will be kept when finished. The court, or the judge thereof, may direct, from time to time, during the progress of the action, who shall have the custody of the abstract. For purposes of this section, a title insurance policy may be submitted in lieu of an abstract.
Source: CCivP 1877, § 594; CL 1887, § 5408; RCCivP 1903, § 633; RC 1919, § 2844; SDC 1939 & Supp 1960, § 37.1441; SL 2015, ch 124, § 1.
21-45-14. Interest allowed on disbursements directed by court.
Whenever, during the progress of the action for partition, any disbursements shall have been made under the direction of the court or the judge thereof, by a party thereto, interest must be allowed thereon from the time of making such disbursements.
Source: CCivP 1877, § 596; CL 1887, § 5410; RCCivP 1903, § 635; RC 1919, § 2845; SDC 1939 & Supp 1960, § 37.1440.
21-45-15. Order directing partition of property--Referees appointed.
Except as provided by § 21-45-28, upon requisite proof being made, the court must order partition of the property in kind according to the respective rights of the parties, as ascertained by the court, and must designate the portion to remain undivided for the owners whose interests remain unknown or are not ascertained. For partition in kind the court must appoint three referees unless the parties file written consent for one, in which case one only shall be appointed and may perform all of the duties required of three.
Source: CCivP 1877, §§ 559, 593; CL 1887, §§ 5373, 5407; RCCivP 1903, §§ 598, 632; RC 1919, §§ 2809, 2843; SDC 1939 & Supp 1960, § 37.1412.
21-45-16. Partition by original cotenancies--Further partition or cotenancy.
Whenever from any cause it is, in the opinion of the court, impracticable or highly inconvenient to make a complete partition, in the first instance, among all the parties in interest, the court may first ascertain and determine the shares or interest respectively held by the original cotenants, and thereupon adjudge and cause a partition to be made, as if such original cotenants were the parties and sole parties in interest, and the only parties to the action; and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained or allotted as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain tenants in common thereof, as they may desire.
Source: CCivP 1877, § 556; CL 1887, § 5370; RCCivP 1903, § 595; RC 1919, § 2806; SDC 1939 & Supp 1960, § 37.1410.
21-45-17. Partition according to respective rights of parties--Surveys and landmarks.
In making the partition, the referees must divide the property and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, pursuant to the provisions of this chapter, designating the several portions by proper landmarks, and may employ a surveyor with the necessary assistants to aid them.
Source: CCivP 1877, § 560; CL 1887, § 5374; RCCivP 1903, § 599; RC 1919, § 2810; SDC 1939 & Supp 1960, § 37.1413.
21-45-18. Road or street set aside before partition or sale.
Before making partition or sale, the referees may, whenever it will be for the advantage of those interested, set apart a portion of the property for a way, road, or street, and the portion so set apart shall not be assigned to any of the parties or sold, but shall remain an open and public way, road, or street, unless the referees shall set the same apart as a private way for the use of the parties interested, or some of them, their heirs, or assigns, in which case it shall remain such private way.
Source: CCivP 1877, § 560; CL 1887, § 5374; RCCivP 1903, § 599; RC 1919, § 2810; SDC 1939 & Supp 1960, § 37.1413.
21-45-19. Unequal division with compensatory payments between parties.
When it appears that the partition cannot be made equal between the parties according to their respective rights, without prejudice to the rights and interests of some of them, and a partition be ordered, the court may adjudge compensation to be made by one party to another, on account of the inequality; but such compensation shall not be required to be made to others by owners unknown, nor by an infant, unless it appears that such infant has personal property sufficient for that purpose, and that his interest will be promoted thereby. In all cases the court has power to make compensatory adjustment between the respective parties, according to the ordinary principles of equity.
Source: CCivP 1877, § 588; CL 1887, § 5402; RCCivP 1903, § 627; RC 1919, § 2838; SDC 1939 & Supp 1960, § 37.1427.
21-45-20. Report of referees on partition made.
The referees must make a report of their proceedings, specifying therein the manner in which they executed their trust, and describing the property divided and the share allotted to each party, with a particular description of each share.
Source: CCivP 1877, § 561; CL 1887, § 5375; RCCivP 1903, § 600; RC 1919, § 2811; SDC 1939 & Supp 1960, § 37.1414.
21-45-21. Expenses and fees apportioned among parties.
The expenses of the referees, including those of a surveyor and his assistants, when employed, must be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by the court, in its discretion, to the referees, must be apportioned among the different parties to the action, equitably.
Source: CCivP 1877, § 564; CL 1887, § 5378; RCCivP 1903, § 603; RC 1919, § 2814; SDC 1939 & Supp 1960, § 37.1415.
21-45-22. Court action on referees' report--Appointment of new referees.
The court may confirm, change, modify, or set aside the report, and if necessary, appoint new referees.
Source: CCivP 1877, § 562; CL 1887, § 5376; RCCivP 1903, § 601; RC 1919, § 2812; SDC 1939 & Supp 1960, § 37.1416.
21-45-23. Judgment of partition--Persons bound by judgment.
Upon the report being confirmed, judgment must be rendered that such partition be effectual forever, which judgment is binding and conclusive:
(1) On all persons named as parties to the action, and their legal representatives, who have at the time any interest in the property divided, or any part thereof, as owners in fee, or as tenants for life or for years, or as entitled to the reversion, remainder, or the inheritance of such property, or any part thereof, after the determination of a particular estate therein, and who by any contingency may be entitled to a beneficial interest in the property, or who have an interest in any undivided share thereof as tenants for years or for life;
(2) On all persons interested in the property, who may be unknown, to whom notice has been given in the action for partition by publication;
(3) On all other persons claiming from such parties or persons, or either of them.
Source: CCivP 1877, § 562; CL 1887, § 5376; RCCivP 1903, § 601; RC 1919, § 2812; SDC 1939 & Supp 1960, § 37.1416.
21-45-24. Costs apportioned among parties by judgment--Lien and execution against property--Expense of litigation between some of parties.
The costs of partition, including reasonable counsel fees, expended by the plaintiff or either of the defendants, for the common benefit, fees of referees, and other disbursements, must be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the judgment. In that case they shall be a lien on the several shares, and the judgment may be enforced by execution against such shares, and against other property held by the respective parties. When, however, litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them.
Source: CCivP 1877, § 592; CL 1887, § 5406; RCCivP 1903, § 631; RC 1919, § 2842; SDC 1939 & Supp 1960, § 37.1442.
21-45-25. Tenants for years not affected by judgment.
The judgment of partition does not affect tenants for years less than ten, to the whole of the property which is the subject of the partition.
Source: CCivP 1877, § 563; CL 1887, § 5377; RCCivP 1903, § 602; RC 1919, § 2813; SDC 1939 & Supp 1960, § 37.1417.
21-45-26. Judgment survives death of party.
No judgment is invalidated by reason of the death of any party before final judgment or decree; but such judgment or decree is as conclusive against the heirs, legal representatives, or assigns of such decedent, as if it had been entered before his death.
Source: CCivP 1877, § 562; CL 1887, § 5376; RCCivP 1903, § 601; RC 1919, § 2812; SDC 1939 & Supp 1960, § 37.1416.
21-45-27. Lien on undivided interest chargeable to share allocated--Partition costs preferred.
When a lien is on an undivided interest or estate of any of the parties, such lien, if a partition be made, shall thenceforth be a charge only on the share assigned to such party; but such share must first be charged with its just proportion of the costs of the partition, in preference to such lien.
Source: CCivP 1877, § 565; CL 1887, § 5379; RCCivP 1903, § 604; RC 1919, § 2815; SDC 1939 & Supp 1960, § 37.1428.
21-45-28. Sale ordered when partition not practical--Appointment of referees.
If it appear to the satisfaction of the court that the property, or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof, for which purpose it may appoint one or more, but not exceeding three referees, in its discretion.
Source: CCivP 1877, §§ 559, 593; CL 1887, §§ 5373, 5407; RCCivP 1903, §§ 598, 632; RC 1919, §§ 2809, 2843; SDC 1939 & Supp 1960, § 37.1412.
21-45-29. Estate for life or years set off in part of property not sold.
When a part of the property only is ordered to be sold, if there be an estate for life or years in an undivided share of the whole property, such estate may be set off in any part of the property, not ordered to be sold.
Source: CCivP 1877, § 566; CL 1887, § 5380; RCCivP 1903, § 605; RC 1919, § 2816; SDC 1939 & Supp 1960, § 37.1429.
21-45-30. Sale at public auction to highest bidder--Publication of notice of sale.
All sales of real property, made by referees, under this chapter must be made at public auction to the highest bidder, upon notice published in the manner required for the sale of real property on execution, except that the sale may be held at the site of the property when so ordered by the court. The notice must state the terms of sale, and if the property, or any part of it, is to be sold subject to a prior estate, charge or lien, that must be stated in the notice.
Source: CCivP 1877, § 571; CL 1887, § 5385; RCCivP 1903, § 610; RC 1919, § 2821; SDC 1939, § 37.1430; SL 1943, ch 137, § 1; SL 1957, ch 193.
21-45-31. Order for sale at site of property--Reservation of power to receive higher bid at hearing.
In the order for sale the court may provide for a sale at the site of the property upon a showing that it would be advantageous to have the sale where the property is located, and shall also provide that the sale may not be confirmed should a higher and better bid, in an amount to be specified in said order, be filed in writing at the hearing upon the report of sale by the referee.
Source: SDC 1939, § 37.1430 as added by SL 1943, ch 137, § 1; SL 1957, ch 193.
21-45-32. Credit terms ordered by court and announced at sale--Separate sale of distinct tracts.
In all cases of sales of property, the terms must be made known at the time, and if the premises consist of distinct farms or lots, they must be sold separately. The court must, in the order for sale, direct the terms of credit which may be allowed for the purchase money of any portion of the real property, of which it may direct a sale on credit, and for that portion of which the purchase money is required to be invested for the benefit of unknown owners, infants, or parties out of the state.
Source: CCivP 1877, §§ 572, 578; CL 1887, §§ 5386, 5392; RCCivP 1903, §§ 611, 617; RC 1919, §§ 2822, 2828; SDC 1939, § 37.1430; SL 1943, ch 137, § 1; SL 1957, ch 193.
21-45-33. Referees and conservators disqualified from purchasing at sale.
None of the referees, nor any person for the benefit of any of them, can be interested in any purchase; nor can a conservator of a minor party be interested in the purchase of any real property being the subject of the action except for the benefit of the minor. All sales contrary to the provisions of this section are void.
Source: SDC 1939 & Supp 1960, § 37.1434; SL 1993, ch 213, § 103.
21-45-34. Purchase by cotenant or lien holder.
When a party entitled to a share of the property, or an encumbrancer entitled to have his lien paid out of the sale, becomes a purchaser, the referees may take his receipt for so much of the proceeds of the sale as belongs to him.
Source: CCivP 1877, § 582; CL 1887, § 5396; RCCivP 1903, § 621; RC 1919, § 2832; SDC 1939 & Supp 1960, § 37.1435.
21-45-35. Payment to guardian of proceeds of sale.
If the share of a minor is sold, the proceeds of the sale may be paid by the referee making the sale to his guardian, or the guardian ad litem appointed for him in the action, upon giving the security required by law, or directed by order of the court.
Source: SDC 1939 & Supp 1960, § 37.1425; SL 1993, ch 213, § 104.
21-45-36. Undertaking required of conservator receiving proceeds of sale.
The conservator of a minor or protected person whose interest in real property has been sold, may receive in behalf of such person his share of the proceeds of such real property from the referees, on executing, with sufficient sureties, an undertaking, approved by a judge of the court, that he will faithfully discharge the trust imposed in him, and will render a true and just account to the person entitled thereto, or to his legal representative.
Source: SDC 1939 & Supp 1960, § 37.1426; SL 1993, ch 213, § 105.
21-45-37. Security taken by referees delivered to parties for agreed or adjudicated shares--Filing of agreement and receipt.
When security is taken by the referees on a sale and the parties interested in such security, by an instrument in writing, under their hands, delivered to the referees, agree upon the shares and proportions to which they are respectively entitled, or when shares and proportions have been previously adjudged by the court, such securities must be taken in the names of and payable to the parties respectively entitled thereto, and must be delivered to such parties upon their receipts therefor. Such agreement and receipt must be returned and filed with the clerk.
Source: CCivP 1877, § 586; CL 1887, § 5400; RCCivP 1903, § 625; RC 1919, § 2836; SDC 1939 & Supp 1960, § 37.1433.
21-45-38. Separate securities taken in names of parties by referees.
The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money, or such parts of the property as are directed by the court to be sold on credit, for the shares of any known owner of full age, in the name of such owner; and for the shares of a minor, in the name of the conservator of such minor; and for other shares in the name of the clerk of courts, and his successors in office.
Source: SDC 1939 & Supp 1960, § 37.1431; SL 1993, ch 213, § 106.
21-45-39. Distribution by referees of proceeds of sale--Payment into court.
The proceeds of sale and the securities taken by the referees, or any part thereof, must be distributed by them to the persons entitled thereto, wherever the court so directs. But in case no direction be given, all of such proceeds and securities must be paid into court, or deposited therein, or as directed by the court.
Source: CCivP 1877, § 569; CL 1887, § 5383; RCCivP 1903, § 608; RC 1919, § 2819; SDC 1939 & Supp 1960, § 37.1420.
21-45-40. Clerk of courts to take and hold security and investment of proceeds.
When the security of the proceeds of the sale is taken, or when an investment of any such proceeds is made, it must be done, except as herein otherwise provided, in the name of the clerk of courts of the county where the papers are filed, and his successors in office, who must hold the same for the use and benefit of the parties interested, subject to the order of the court.
Source: CCivP 1877, § 585; CL 1887, § 5399; RCCivP 1903, § 624; RC 1919, § 2835; SDC 1939 & Supp 1960, § 37.1432.
21-45-41. Report of sale filed with clerk of courts--Contents.
Within ten days after the sale of the property, or any part thereof, ordered to be sold, a report thereof, duly verified by the person making the same, shall be filed in the office of the clerk of courts of the county in which the action is pending, and shall
(1) Refer to the order for sale of the property sold;
(2) State when and where the property was sold, and that the sale was in all respects lawfully, honestly, and fairly conducted;
(3) Submit proof of the publication of the notice of sale by attaching the affidavit of publication thereof;
(4) Contain a description of the property sold;
(5) Contain the name and address of the highest bidder for each part of the property sold and the amount of the bid;
(6) Contain a statement and account of the sale fully itemized to show receipts therefrom and all items of costs, fees, disbursements and expenses.
Source: CCivP 1877, § 580; CL 1887, § 5394; RCCivP 1903, § 619; RC 1919, § 2830; SDC 1939, § 37.1436; SL 1947, ch 169.
21-45-42. Exceptions to return of sale--Order fixing time and place for hearing.
At any time within ten days after such return has been filed, any person interested may file exceptions thereto in writing, and no order confirming said sale shall be made until an order of the court has been made fixing a time and place for a hearing upon said report of sale and the exceptions filed thereto, and which shall be done in the same manner and upon the same notice as a hearing upon an order to show cause.
Source: SDC 1939, § 37.1436 as added by SL 1947, ch 169.
21-45-43. Higher and better bid filed before confirmation of sale.
The making of a higher and better bid subsequent to said sale shall not operate as the filing of an exception to the report of sale.
If a higher and better bid is made and filed at any time before the confirmation of sale, then the procedure shall be as prescribed by § 21-45-44.
Source: SDC 1939, § 37.1436 as added by SL 1947, ch 169.
21-45-44. Sale not confirmed if higher and better bid filed--Successive bids at hearing--Order directing conveyance to highest bidder.
Such sale shall not be confirmed as to any property for which a higher and better bid in writing, equal to or exceeding the amount specified in the order of sale, shall have been filed, prior to or at the hearing upon the return of sale, and successive bids may be received at such hearing. At the close of said bidding the court shall enter an order directing the execution and delivery of a proper conveyance to and the taking of security, if any, from the person filing or making the highest and best bid.
Source: SDC 1939, § 37.1437 as added by SL 1943, ch 137, § 2; SL 1945, ch 161, § 1; SL 1947, ch 170.
21-45-45. Confirmation ex parte when no exceptions or higher bids filed--Order for conveyance.
If no exceptions be filed to the report of sale, and such fact is made to appear by the certificate of the clerk of courts in whose office the same is filed, and no higher or better bid is filed with said clerk, which likewise is made to appear by the certificates of said clerk, the report of sale may be presented to the court for confirmation and determined ex parte. And if the court shall find that the sale has, in all respects, been made in conformity to the law and the order of the court for the sale, an order shall be made confirming the sale and authorizing and directing the execution and delivery of a proper conveyance and the taking of any security authorized and directed to be taken.
Source: CCivP 1877, § 581; CL 1887, § 5395; RCCivP 1903, § 620; RC 1919, § 2831; SDC 1939, § 37.1437; SL 1943, ch 137, § 2; SL 1945, ch 161, § 1; SL 1947, ch 170.
21-45-46. Sale valid from time of confirmation--Recording of certified copy of order.
The sale is confirmed and valid from the time of the order confirming it, and a certified copy of the order shall be recorded in the office of the register of deeds of the county wherein the property or some part thereof is situated.
Source: SDC 1939, § 37.1437 as added by SL 1947, ch 170.
21-45-47. Validation of prior proceedings in which sales confirmed--Rights barred by no action.
All sales of real property made pursuant to partition proceedings which were confirmed by an order or judgment of the court in which said sales were held prior to January 1, 1992, are hereby in all things legalized, cured, and validated as fully as if said sale and the partition proceedings in reference thereto had been made in full compliance with all existing laws.
If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.
Source: SL 1967, ch 354; SL 1968, ch 275; SL 1972, ch 134; SL 1992, ch 307, § 8.
21-45-48. Recording of conveyance--Persons barred by recorded conveyance.
The conveyance must be recorded in the county where the premises are situated, and shall be a bar against all persons interested in the property in any way, who shall have been named as parties in the action; and against all such parties and persons as were unknown if the summons was served by publication, and against all persons claiming under them or either of them and against all persons having unrecorded deeds or liens, at the commencement of the action.
Source: CCivP 1877, § 583; CL 1887, § 5397; RCCivP 1903, § 622; RC 1919, § 2833; SDC 1939 & Supp 1960, § 37.1438.
21-45-49. Disposition of proceeds directed by order confirming sale.
The order confirming a sale may also make provision directing and authorizing the disposition to be made of the proceeds of a sale.
Source: CCivP 1877, § 581; CL 1887, § 5395; RCCivP 1903, § 620; RC 1919, § 2831; SDC 1939, § 37.1437; SL 1943, ch 137, § 2; SL 1945, ch 161, § 1; SL 1947, ch 170.
21-45-50. Continuation of action between parties when proceeds of sale paid into court--Hearing of further testimony.
When the proceeds of the sale of any share or parcel belonging to persons who are parties to the action, and who are known, are paid into court, the action may be continued as between such parties, for the determination of their respective claims thereto, which must be ascertained and adjudged by the court. Further testimony may be taken in court, or by a referee, in the discretion of the court, and the court may, if necessary, require such parties to present the facts or law in controversy by pleadings as in an original action.
Source: CCivP 1877, § 570; CL 1887, § 5384; RCCivP 1903, § 609; RC 1919, § 2820; SDC 1939 & Supp 1960, § 37.1421.
21-45-51. Application of proceeds of sale of encumbered property.
The proceeds of the sale of encumbered property must be applied under the direction of the court as follows:
(1) To pay its just proportion of the general costs of the action;
(2) To pay the costs of the reference;
(3) To satisfy and cancel of record the several liens in their order or priority, by payment of the sums due and to become due; the amount due to be verified by affidavit at the time of payment;
(4) The residue among the owners of the property sold, according to their respective shares therein.
Source: CCivP 1877, § 567; CL 1887, § 5381; RCCivP 1903, § 606; RC 1919, § 2817; SDC 1939 & Supp 1960, § 37.1418.
21-45-52. Lien holder required to resort to other secured property.
Whenever any party to an action who holds a lien upon the property or any part thereof, has other securities for the payment of the amount of such lien, the court may, in its discretion, order such security to be exhausted before distribution of the proceeds of sale, or may order a just deduction to be made from the amount of the lien on the property on account thereof.
Source: CCivP 1877, § 568; CL 1887, § 5382; RCCivP 1903, § 607; RC 1919, § 2818; SDC 1939 & Supp 1960, § 37.1419.
21-45-53. Compensation of tenant for life or years--Consent or adjudication of amount payable--Protection of unknown tenant.
The person entitled to a tenancy for life or years, whose estate has been sold, is entitled to receive such sum as may be deemed a reasonable satisfaction for such estate, and which the person so entitled may consent to accept instead thereof, by an instrument in writing, filed with the clerk of courts. Upon the filing of such consent, the clerk must enter the same in the minutes of the court. If such consent be not given, filed, and entered at or before the time a judgment of sale is rendered, the court must ascertain and determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be allowed on account of such estate, and must order the same to be paid to such party, or deposited in court for him, as the case may require. If the person entitled to such estate for life or years be unknown, the court must provide for the protection of his rights in the same manner, as far as may be, as if he were known and had appeared.
Source: CCivP 1877, §§ 574 to 576; CL 1887, §§ 5388 to 5390; RCCivP 1903, §§ 613 to 615; RC 1919, §§ 2824 to 2826; SDC 1939 & Supp 1960, § 37.1422.
21-45-54. Compensation for future estate--Payment or investment of compensatory share.
In all cases of sales, where it appears that any person has a vested or contingent future right or estate in any of the property sold, the court must ascertain and settle the proportionate value of such contingent or vested right or estate, and must direct such proportion of the proceeds of the sale to be invested, secured, or paid over, in such manner as to protect the rights and interests of the parties.
Source: CCivP 1877, § 577; CL 1887, § 5391; RCCivP 1903, § 616; RC 1919, § 2827; SDC 1939 & Supp 1960, § 37.1423.
21-45-55. Investment of proceeds of sale for unknown or nonresident owner.
When there are proceeds of a sale belonging to an unknown owner, or to a person without the state who has no legal representative within it, the same must be invested in bonds of the United States for the benefit of the persons entitled thereto.
Source: CCivP 1877, § 584; CL 1887, § 5398; RCCivP 1903, § 623; RC 1919, § 2834; SDC 1939 & Supp 1960, § 37.1424.
21-45-56. Receipt and deposit by clerk of courts of securities and investments for parties--Accounting.
The clerk of courts, in whose name a security is taken, or by whom an investment is made, and his successor in office, must receive the interest and principal as it becomes due, and apply and invest the same as the court may direct; and must deposit with the county treasurer all securities taken, and keep an account in a book provided and kept for that purpose in the clerk's office, free for inspection by all persons, of investments and moneys received by him thereon and the disposition thereof.
Source: CCivP 1877, § 587; CL 1887, § 5401; RCCivP 1903, § 626; RC 1919, § 2837; SDC 1939 & Supp 1960, § 37.1439.
21-46-1
Property subject to partition or sale--Persons entitled to bring action.
21-46-2
Venue of action.
21-46-3
Procedure for partition or sale.
21-46-4
Consolidation of real property and personal property actions.
21-46-1. Property subject to partition or sale--Persons entitled to bring action.
When several persons hold and are in possession of personal property as partners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance or for life or lives or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein and for a sale of such property or a part thereof, if it appears that a partition cannot be made without great prejudice to the owners.
Source: SL 1953, ch 208, § 1; SDC Supp 1960, § 37.14A01.
21-46-2. Venue of action.
The venue of such action shall be the county in which such property or a part thereof is located.
Source: SL 1953, ch 208, § 2; SDC Supp 1960, § 37.14A01.
21-46-3. Procedure for partition or sale.
The procedure to be followed shall be the same as provided in chapter 21-45, for the partition of real estate.
Source: SL 1953, ch 208, § 3; SDC Supp 1960, § 37.14A02.
21-46-4. Consolidation of real property and personal property actions.
Where real and personal property are owned by the same persons in substantially like interests, the court, in its discretion, may permit the consolidation of the personal property action established by this chapter with the real property action established by chapter 21-45 to be consolidated into one action.
Source: SL 1953, ch 208, § 4; SDC Supp 1960, § 37.14A03.
21-47-1
Venue of foreclosure actions--Service outside county on nonresident defendant.
21-47-2
Service by publication on nonresident, absent or unknown defendants.
21-47-3
Joinder as party defendant of person liable on debt secured--Deficiency judgment
against persons liable.
21-47-4
Previous actions for collection of debt to be disclosed by complaint.
21-47-5
Foreclosure not permitted after money judgment unless execution returned
unsatisfied.
21-47-6
Proceedings at law not had while foreclosure action pending.
21-47-7
Injunction to restrain injury to property during existence of lien or foreclosure.
21-47-8
Dismissal of complaint on payment into court of installments then due.
21-47-9
Examination of premises on judgment for plaintiff.
21-47-10
Stay of further proceedings on payment before sale of installments then due--Enforcement of judgment on subsequent default.
21-47-11
Sale by parcels to pay delinquent installments--Subsequent sales on later default.
21-47-12
Sale of entire tract and payment of installments due--Investment and payment of
subsequent installments to plaintiff--Surplus for benefit of defendant.
21-47-13
Judgment of foreclosure and sale of premises--Sale by parcels--Delivery of
possession deferred during period of redemption.
21-47-14
Officer by whom sale made--Place and notice of sale--Levy on execution not
required.
21-47-15
Purchase by mortgagee at sale--Fair and reasonable bid required.
21-47-16
Proof required of mortgagee bidding less than amount of debt--Court decree
permitting bid--Execution for deficiency.
21-47-17
Foreclosure as complete satisfaction of debt--Exception.
21-47-18
Application of proceeds of sale--Investment of unclaimed surplus.
21-47-19
Cancellation or endorsement of evidence of debt on application of proceeds of sale.
21-47-20
Execution for balance unsatisfied by proceeds of sale.
21-47-21
Certificate of sale issued to purchaser.
21-47-22
Prior certificates validated despite delay in recording--Rights barred by no action.
21-47-23
Redemption procedure.
21-47-24
Deed issued on expiration of time for redemption--Persons barred by deed--Mortgagor entitled to harvest crops planted before issuance of deed.
21-47-24.1
Lien priority in crops determined by Uniform Commercial Code.
21-47-25
Prior foreclosure sales validated despite defects--Rights barred by no action.
21-47-1. Venue of foreclosure actions--Service outside county on nonresident defendant.
Actions for the foreclosure or satisfaction of mortgages may be brought in the circuit court for the county where the mortgaged real property or some portion thereof is situated, and in case any defendant be not a resident of the county, process may be served on him in any other county within the state.
Source: CCivP 1877, § 616; CL 1887, § 5430; RCCivP 1903, § 655; RC 1919, § 2897; SDC 1939, § 37.2901; SL 1943, ch 139.
21-47-2. Service by publication on nonresident, absent or unknown defendants.
If the defendant be a nonresident of the state, or absent or concealed or if he be a resident of the state and after due diligence cannot be found in the state, service may be made by publication in the manner prescribed by statute or rule of court in ordinary civil actions but no additional lien on or seizure of property other than that contained in the mortgage or resulting from commencing foreclosure thereof shall be necessary to obtain jurisdiction of the persons served with process by publication. If the mortgagor or any other proper party defendant is deceased, service upon unknown heirs, devisees, legatees, personal representatives, creditors, and other unknown persons, who might have a right of redemption from the mortgage, may be made by publication, as provided by § 15-9-9.
Source: CCivP 1877, § 616; CL 1887, § 5430; RCCivP 1903, § 655; RC 1919, § 2897; SDC 1939, § 37.2901; SL 1943, ch 139; SL 1995, ch 167, § 188.
21-47-3. Joinder as party defendant of person liable on debt secured--Deficiency judgment against persons liable.
If the mortgage debt be secured by the obligation, or other evidence of debt, of any other person than the mortgagor, the plaintiff may make such other person a party to the action, and the court may render judgment for the balance of such debt remaining unsatisfied, after a sale of the mortgaged premises, as well against such other person as against the mortgagor, and may enforce such judgment as in other cases by execution or other process.
Source: CCivP 1877, § 619; CL 1887, § 5433; RCCivP 1903, § 658; RC 1919, § 2900; SDC 1939 & Supp 1960, § 37.2902.
21-47-4. Previous actions for collection of debt to be disclosed by complaint.
In an action for the foreclosure or satisfaction of a mortgage, the complaint shall state whether any proceedings have been had at law or otherwise for the recovery of the debt secured by such mortgage or any part thereof; and if there has, whether any and what part thereof has been collected.
Source: CCivP 1877, § 620; CL 1887, § 5434; RCCivP 1903, § 659; RC 1919, § 2901; Supreme Court Rule 591, 1939; SDC 1939 & Supp 1960, § 37.2903.
21-47-5. Foreclosure not permitted after money judgment unless execution returned unsatisfied.
If it appear that any judgment has been obtained in an action at law for the moneys demanded by such complaint, or any part thereof, no proceedings shall be had in such case unless an execution against the property of the defendant in such judgment has been issued, and the sheriff or other officer shall have made return that the execution is unsatisfied in whole or in part, and that the defendant has no property whereon to satisfy such execution.
Source: CCivP 1877, § 621; CL 1887, § 5435; RCCivP 1903, § 660; RC 1919, § 2902; SDC 1939 & Supp 1960, § 37.2905.
21-47-6. Proceedings at law not had while foreclosure action pending.
After action for foreclosure shall be commenced, while the same is pending, no proceedings at law shall be had for the recovery of the debt secured by the mortgage, or any part thereof, unless authorized by the court.
Source: CCivP 1877, § 618; CL 1887, § 5432; RCCivP 1903, § 657; RC 1919, § 2899; SDC 1939 & Supp 1960, § 37.2904.
21-47-7. Injunction to restrain injury to property during existence of lien or foreclosure.
The court may by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of real property during the existence of a lien or foreclosure of a mortgage thereon, and until the expiration of the time allowed for redemption.
Source: CCivP 1877, § 634; CL 1887, § 5448; RCCivP 1903, § 674; RC 1919, § 2913; SDC 1939 & Supp 1960, § 37.2906.
21-47-8. Dismissal of complaint on payment into court of installments then due.
Whenever an action shall be commenced for the foreclosure of a mortgage upon which there shall be due any interest or any portion or installment of the principal, and there shall be other portions or installments to become due subsequently, the complaint shall be dismissed upon the defendant bringing into court at any time before entry of judgment the principal and interest due, with costs and disbursements.
Source: CCivP 1877, § 626; CL 1887, § 5440; RCCivP 1903, § 666; RC 1919, § 2906; SDC 1939 & Supp 1960, § 37.2907.
21-47-9. Examination of premises on judgment for plaintiff.
If the defendant shall not bring into court the amount due, with costs, or if, for any other cause, a judgment or decree shall be entered for the plaintiff, the court may appoint a referee to ascertain and report the situation of the mortgaged premises, or may determine the same on oral or other testimony.
Source: CCivP 1877, § 628; CL 1887, § 5442; RCCivP 1903, § 668; RC 1919, § 2908; SDC 1939 & Supp 1960, § 37.2909.
21-47-10. Stay of further proceedings on payment before sale of installments then due--Enforcement of judgment on subsequent default.
If any time before sale, the defendant shall bring into court the principal and interest due, with costs, the proceedings in the foreclosure action shall be stayed until a further default, and in case of a subsequent default in the judgment of any of the installments, or any part thereof, of such mortgage, the court may enforce by order or other process the collection of such subsequent installment.
Source: CCivP 1877, § 627; CL 1887, § 5441; RCCivP 1903, § 667; RC 1919, § 2907; SDC 1939 & Supp 1960, § 37.2908.
21-47-11. Sale by parcels to pay delinquent installments--Subsequent sales on later default.
If it shall appear that the mortgaged premises can be sold in parcels without injury to the interests of the parties, the decree must direct so much of the mortgaged premises to be sold as will be sufficient to pay the amount then due on such mortgage, with costs, and such judgment or decree shall remain as security for any subsequent default. In such case if there shall be any default subsequent to such judgment or decree, in the payment of any portion or installment of the principal, or of any interest due upon such mortgage, the court may, upon the application of the plaintiff, by a further order founded upon such first judgment or decree, direct the sale of so much of the mortgaged premises to be made, under such decree, as will be sufficient to satisfy the amount so due, with costs of the application and the subsequent proceeding thereon; and the same proceedings may be had as often as a default happens.
Source: CCivP 1877, §§ 628, 629; CL 1887, §§ 5442, 5443; RCCivP 1903, §§ 668, 669; RC 1919, §§ 2908, 2909; SDC 1939 & Supp 1960, § 37.2909.
21-47-12. Sale of entire tract and payment of installments due--Investment and payment of subsequent installments to plaintiff--Surplus for benefit of defendant.
If, in any of the foregoing cases, it shall appear to the court that the mortgaged premises are so situated that a sale of the whole will be most beneficial to the parties, the judgment or decree must, in the first instance, be entered for the sale of the whole premises accordingly. In such case the proceeds of such sale must be applied as well to the interest or portion or installment of the principal due as toward the whole or residue of the sum secured by such mortgage and not due and payable at the time of such sale, and if such residue do not bear interest, then the court may direct the same to be paid with a rebate of the legal interest for the time during which such residue shall not be due and payable, or the court may direct the balance of the proceeds of such sale, after paying the sum due, with costs, to be put out at interest for the benefit of the plaintiff, to be paid to him as the installments or portions of the principal or interest may become due, and the surplus for the benefit of the defendant, his representative, or assigns, to be paid to them by order of the court.
Source: CCivP 1877, §§ 630, 631; CL 1887, §§ 5444, 5445; RCCivP 1903, §§ 670, 671; RC 1919, §§ 2910, 2911; SDC 1939 & Supp 1960, § 37.2910.
21-47-13. Judgment of foreclosure and sale of premises--Sale by parcels--Delivery of possession deferred during period of redemption.
Whenever an action shall be brought for the foreclosure or satisfaction of a mortgage, the court shall have power to render a judgment against the mortgagor for the amount of the mortgage debt due at the time of the rendition of such judgment, and the costs of the action, and to order and decree a sale of the mortgaged premises, or such part thereof as may be sufficient to pay the amount adjudged to be due, and costs of sale, and shall have power to direct in what parcels the premises shall be offered, and the order in which they shall be offered and further to direct that if there be no bid for any parcel or parcels offered, such parcel or parcels may be sold with any other parcel not yet sold, in one parcel; and shall have power to order and compel the delivery of the possession of the premises to the purchaser; but in no case under this chapter shall the possession of the premises so sold be delivered to the purchaser or person entitled thereto, until after the expiration of the period of redemption.
Source: CCivP 1877, § 617; CL 1887, § 5431; RCCivP 1903, § 656; RC 1919, § 2898; SL 1929, ch 178; SDC 1939 & Supp 1960, § 37.2911.
21-47-14. Officer by whom sale made--Place and notice of sale--Levy on execution not required.
All sales of mortgaged premises under an order and decree of foreclosure must be made by a referee, sheriff, or his deputy, of the county where the court in which the judgment is rendered is held, or other person appointed by the court for that purpose, and must be made in the county where the premises, or some part of them, are situated, and shall be made upon like notice and in the same manner as provided by law for the sale of real property upon execution. No levy on mortgaged real estate under the execution, however, shall be required and the officer may proceed to advertise and sell it upon receipt of the execution without further proceedings.
Source: CCivP 1877, § 622; CL 1887, § 5436; RCCivP 1903, § 661; RC 1919, § 2903; Supreme Court Rule 592, 1939; SDC 1939 & Supp 1960, § 37.2912.
21-47-15. Purchase by mortgagee at sale--Fair and reasonable bid required.
In any foreclosure of a mortgage upon real estate by action, the holder of the mortgage may purchase the mortgaged premises, or any part thereof, at such foreclosure sale, if the holder of the mortgage bids fairly and in good faith, and bids the fair and reasonable value thereof, less the sum of the balances due, as of the date of sale, on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments. In no event may the holder of the mortgage be required to bid a sum in excess of the debt adjudged by the court to be due, with costs and disbursements taxed in the action in which the sale is made, and costs and expenses of the sale.
Source: SL 1939, ch 146, § 1; SDC Supp 1960, § 37.2911-1; SL 1989, ch 191, § 1.
21-47-16. Proof required of mortgagee bidding less than amount of debt--Court decree permitting bid--Execution for deficiency.
If the holder of such mortgage is not willing at such sale to bid the full amount of the judgment debt, such mortgage holder shall establish at the time of the trial by competent proof to the satisfaction of the court, the fair and reasonable value of the mortgaged premises, and the court shall determine the same in its decree. If the court shall find such fair and reasonable value, less the sum of the balances due as of the date of judgment on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments, to be less than the sum due on said mortgage, with costs and disbursements, and costs and expenses of sale, it may by such decree authorize such mortgage holder to bid not less than the fair and reasonable value as thus determined, less the sum of the balances due, as of the date of sale, on any prior liens and encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments; and if a deficiency remains after the foreclosure sale, such mortgage holder shall be entitled to a general execution for such deficiency only upon application to the court in which the judgment was rendered.
Source: SL 1939, ch 146, § 2; SDC Supp 1960, § 37.2911-1; SL 1989, ch 191, § 2.
21-47-17. Foreclosure as complete satisfaction of debt--Exception.
Except as provided by § 21-47-16, a foreclosure by action of a mortgage upon real estate operates as a complete extinguishment, satisfaction and payment of the debt secured by the mortgage. However, a foreclosure may not be considered to be satisfaction of an assignment of rents agreement under the mortgage.
Source: SL 1939, ch 146, § 2; SDC Supp 1960, § 37.2911-1; SL 1983, ch 172.
21-47-18. Application of proceeds of sale--Investment of unclaimed surplus.
It shall be the duty of every officer or person who conducts any such sale to apply the proceeds as follows:
(1) To the payment of the costs and expenses of the sale;
(2) To the payment of the costs and disbursements taxed in the action in which the sale is made;
(3) To the discharge of the debt adjudged by the court to be due;
(4) To pay the surplus, if any, 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 shall remain in 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, his representatives, or assigns, subject to the order of the court.
Source: CCivP 1877, §§ 624, 625; CL 1887, §§ 5438, 5439; SL 1893, ch 118; RCCivP 1903, §§ 663 to 665; RC 1919, § 2905; SDC 1939 & Supp 1960, § 37.2913.
21-47-19. Cancellation or endorsement of evidence of debt on application of proceeds of sale.
When the proceeds of sale are sufficient to pay the costs and disbursements and the entire debt adjudged to be due, the officer or person making the sale, or the clerk of the court, shall cancel the note, bond, mortgage, or other evidences of the debt upon which the judgment is founded, by a plain and legible notation on the face thereof, and such note or evidences 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 evidences, 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 evidences, so endorsed, shall be attached to and made a part of the return on the execution.
Source: SL 1893, ch 118; RCCivP 1903, § 664; RC 1919, § 2905; SDC 1939 & Supp 1960, § 37.2913.
21-47-20. Execution for balance unsatisfied by proceeds of sale.
Subject to the provisions of §§ 21-47-15 to 21-47-17, inclusive, the court may direct the issuing of an execution for the balance that may remain unsatisfied, after applying the proceeds of such sale.
Source: CCivP 1877, § 617; CL 1887, § 5431; RCCivP 1903, § 656; RC 1919, § 2898; SL 1929, ch 178; SDC 1939 & Supp 1960, § 37.2911.
21-47-21. Certificate of sale issued to purchaser.
Whenever any real property shall be sold under an order, decree, or judgment of foreclosure, under the provisions of this chapter, the officer or other person making the sale must give to the purchaser a certificate of sale, as provided in the statutes relating to foreclosure of real estate mortgages by advertisement and sale.
Source: CCivP 1877, § 623; CL 1887, § 5437; RCCivP 1903, § 662; RC 1919, § 2904; SDC 1939 & Supp 1960, § 37.2914.
21-47-22. Prior certificates validated despite delay in recording--Rights barred by no action.
All certificates of mortgage foreclosure sale of real property by action recorded prior to January 1, 1992, and the records of such certificates, are hereby legalized, cured, and validated, and such certificates and the record thereof are made and declared to be in every manner and respect of like force and effect as though such certificates had been recorded within ten days from the date of sale as required by § 21-48-19.
If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.
Source: SDC 1939, § 65.0304; SL 1992, ch 307, § 9.
21-47-23. Redemption procedure.
The redemption of real property sold upon foreclosure of mortgages by order, judgment, or decree of court shall be as provided by statute relating to redemption from mortgage foreclosure sales by advertisement and sale under power of sale.
Source: CCivP 1877, § 633; CL 1887, § 5447; RCCivP 1903, § 673; RC 1919, § 2912; SDC 1939 & Supp 1960, § 37.2915.
21-47-24. Deed issued on expiration of time for redemption--Persons barred by deed--Mortgagor entitled to harvest crops planted before issuance of deed.
At the expiration of the time for the redemption of such mortgaged premises, if the same is not redeemed, the person or officer making the sale, or his successor in office, or other person appointed by the court, must make to the purchaser or purchasers, their heirs or assigns, or to any person acquiring the title of such purchaser, by redemption or otherwise, a deed or deeds to such premises which shall vest in the purchaser, or other party entitled thereto, the same estate that was vested in the mortgagor at the time of the execution and delivery of the mortgage, or at any time thereafter; and such deed shall be as valid as if executed by the mortgagor and mortgagee, and shall be a complete bar against each of them, and against all the parties to the action in which the judgment for such sale was rendered, and against their heirs respectively, and all persons claiming under such heirs. Whenever crops have been sown on the mortgaged premises, before the issuance of a sheriff's deed, the mortgagor 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: CCivP 1877, § 623; CL 1887, § 5437; RCCivP 1903, § 662; RC 1919, § 2904; SDC 1939 & Supp 1960, § 37.2914; SL 1986, ch 177, § 2.
21-47-24.1. Lien priority in crops determined by Uniform Commercial Code.
Notwithstanding anything in §§ 15-19-17.1, 21-47-24 and 21-48-21 to the contrary, the lien priority of a secured party in crops shall be determined by the provisions of Title 57A.
Source: SL 1986, ch 177, § 4.
21-47-25. Prior foreclosure sales validated despite defects--Rights barred by no action.
All mortgage foreclosure sales of real property by action, under power of sale contained in such mortgages, made before January 1, 1992, the sheriff's deed thereof having been executed and delivered to the purchaser of such real property before January 1, 1992, notwithstanding any defect of notice, acknowledgment of any instrument or the recording thereof, or any other defect in the action or proceeding, are hereby cured, legalized, and validated as fully as if such foreclosure proceedings had been made in full compliance with all existing statutes or laws.
If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.
Source: SL 1975, ch 167; SL 1992, ch 307, § 10.
21-48-1
Foreclosure by advertisement available if mortgage contains power of sale.
21-48-2
Recording of mortgage and assignments required before foreclosure.
21-48-3
Default required before foreclosure.
21-48-4
Foreclosure not permitted after action at law to recover debt unless execution
returned unsatisfied.
21-48-5
Mortgage for installments deemed separate mortgage for each installment--Effect of
redemption by installments.
21-48-6
Publication of notice of foreclosure--Contents of notice.
21-48-6.1
Written notice of foreclosure sale required--Time--Parties.
21-48-7
Validation of prior foreclosures by receivers and personal representatives--Rights
barred by no action.
21-48-8
Continuation of foreclosure proceedings despite changes in county boundaries or
status.
21-48-9
Application by mortgagor or other interested party to require foreclosure by action--Injunction against foreclosure by advertisement--Service on mortgagee.
21-48-10
Time and place of sale--Officer making sale.
21-48-11
Postponement of sale--Notice.
21-48-12
Sale by parcels--Sale terminated when sufficient amount raised.
21-48-13
Purchase by mortgagee at sale.
21-48-14
Proof of value required for deficiency judgment after purchase by mortgagee--Other
purchasers unaffected--Negotiability of instruments protected.
21-48-15
Costs, disbursements and attorney fees allowed from proceeds of sale.
21-48-16
Surplus proceeds of sale paid to clerk of court--Notice to mortgagor and junior lien
holders of deposit of surplus.
21-48-17
Investment of surplus proceeds deposited with clerk.
21-48-18
Cancellation or endorsement of evidence of debt on application of proceeds of sale.
21-48-19
Certificate of sale given to purchaser--Contents--Execution and recording.
21-48-20
Prior certificates validated despite delay in recording--Rights barred by no action.
21-48-21
Deed given on expiration of time for redemption--Mortgagor entitled to harvest crops
planted before issuance of deed.
21-48-22
Validation of prior proceedings on which deed issued--Time allowed for protection
of existing rights.
21-48-22.1
Prior foreclosure sales validated despite defects--Rights barred by no action.
21-48-23
Record of foreclosure sale--Affidavits and certificate recorded--Notation by register
of deeds.
21-48-24
Affidavits recorded to show compliance with federal acts.
21-48-25
Interest vested in purchaser by recording of instruments.
21-48-26
Validation of sales prior to January 1, 1982--Pending proceedings.
21-48-1. Foreclosure by advertisement available if mortgage contains power of sale.
Every mortgage of real property containing therein a power of sale, upon default being made in the conditions of said mortgage, may be foreclosed by advertisement.
Source: CCivP 1877, § 597; SL 1883, ch 61, § 1; CL 1887, § 5411; RCCivP 1903, § 636; RC 1919, § 2876; SL 1927, ch 163; SL 1933, ch 135; SDC 1939 & Supp 1960, § 37.3001; SL 1961, ch 199.
21-48-2. Recording of mortgage and assignments required before foreclosure.
To entitle any party to foreclose by advertisement, it shall be necessary that the mortgage containing such power of sale has been duly recorded and, if it shall have been assigned, that all the assignments thereof have been duly recorded in the county where such mortgaged premises are situated.
Source: CCivP 1877, § 598, subdiv 3; CL 1887, § 5412, subdiv 3; RCCivP 1903, § 637, subdiv 3; RC 1919, § 2877 (3); SDC 1939 & Supp 1960, § 37.3002 (3).
21-48-3. Default required before foreclosure.
To entitle any party to foreclose by advertisement, it shall be necessary that some default in a condition of such mortgage shall have accrued, by which the power to sell has become operative.
Source: CCivP 1877, § 598, subdiv 1; CL 1887, § 5412, subdiv 1; RCCivP 1903, § 637, subdiv 1; RC 1919, § 2877 (1); SDC 1939 & Supp 1960, § 37.3002 (1).
21-48-4. Foreclosure not permitted after action at law to recover debt unless execution returned unsatisfied.
To entitle any party to foreclose by advertisement, it shall be necessary that no action or proceeding shall have been instituted at law to recover the debt then remaining secured by such mortgage, or any part thereof; or, if any action or proceeding has been instituted, that the same has been discontinued, or that an execution upon the judgment rendered therein has been returned unsatisfied, in whole or in part.
Source: CCivP 1877, § 598, subdiv 2; CL 1887, § 5412, subdiv 2; RCCivP 1903, § 637, subdiv 2; RC 1919, § 2877 (2); SDC 1939 & Supp 1960, § 37.3002 (2).
21-48-5. Mortgage for installments deemed separate mortgage for each installment--Effect of redemption by installments.
In cases of mortgages given to secure the payment of money by installments, each of the installments mentioned in such mortgage, after the first, shall be taken and deemed to be a separate and independent mortgage, and such mortgage, for each of such installments, may be foreclosed in the same manner, and with like effect, as if such separate mortgage were given for each subsequent installment; and a redemption of any such sale shall have like effect as if the sale for such installment had been made upon a prior, independent mortgage.
Source: CCivP 1877, § 599; CL 1887, § 5413; RCCivP 1903, § 638; RC 1919, § 2878; SDC 1939 & Supp 1960, § 37.3003.
21-48-6. Publication of notice of foreclosure--Contents of notice.
Notice that such mortgage will be foreclosed by sale of the mortgaged premises, or some part of them, shall be given, by publishing the notice at least once each week for four successive weeks in a legal newspaper of the county where the premises intended to be sold, or some of them, are situated, if there be one in the county, and if not, in the nearest newspaper in the state. Every notice shall specify:
(1) The names of the mortgagor and mortgagee, and the assignee, if any;
(2) The date of the mortgage;
(3) The amount claimed to be due on the mortgage at the date of the notice;
(4) A description of the mortgaged premises, conforming substantially to that contained in the mortgage;
(5) The time and place of sale;
(6) A description of the default;
(7) That the mortgagor can apply for foreclosure by action pursuant to § 21-48-9;
(8) The name and address of all persons claiming a lien, encumbrance, or other recorded ownership interest in the property.
Source: CCivP 1877, §§ 600, 601; CL 1887, §§ 5414, 5415; RCCivP 1903, §§ 639, 640; RC 1919, §§ 2879, 2880; SL 1929, ch 177; SL 1931, ch 178; SDC 1939 & Supp 1960, § 37.3004; SL 2002, ch 101, § 1.
21-48-6.1. Written notice of foreclosure sale required--Time--Parties.
At least twenty-one days prior to the date set for sale, the foreclosing creditor shall serve a written copy of the notice of foreclosure sale on the mortgagor and any lien holder or encumbrancer whose interest in the property being foreclosed would be affected by the foreclosure.
Source: SL 2002, ch 101, § 3.
21-48-7. Validation of prior foreclosures by receivers and personal representatives--Rights barred by no action.
All mortgage foreclosure sales of real property by advertisement, under power of sale contained in such mortgages, made before January 1, 1992, by any receiver or personal representative, appointed by a court of competent jurisdiction, acting for and on behalf of the trust or estate for which such receiver or personal representative was appointed, or any like foreclosure made by the assignee of any such receiver or personal representative, and where such receiver or personal representative acquired title to such mortgage or mortgages by virtue of such appointment, and not by assignment, are hereby legalized, cured, and validated as fully as if such mortgage or mortgages had been assigned by the owner thereof to such receiver or personal representative, and such assignment duly acknowledged and recorded, as required by § 43-11-29, relating to power of sale in mortgages, in whom such power vests by assignment and record thereof.
If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.
Source: SL 1939, ch 147; SDC Supp 1960, § 65.0304-2; SL 1992, ch 307, § 11.
21-48-8. Continuation of foreclosure proceedings despite changes in county boundaries or status.
When a foreclosure has been legally and properly commenced in any county by first publication of the notice of sale it may be carried on to full completion and issue of sheriff's deed or redemption, in such county, regardless of any change which may take place in the boundaries, name, legal, or political status of such county.
Source: SL 1917, ch 8, § 1; RC 1919, § 2896; SDC 1939 & Supp 1960, § 37.3013.
21-48-9. Application by mortgagor or other interested party to require foreclosure by action--Injunction against foreclosure by advertisement--Service on mortgagee.
If the mortgagee or the mortgagee's assignee has commenced foreclosure by advertisement, the mortgagor, the mortgagor's successor in interest, or any other person claiming a lien, encumbrance, or recorded ownership interest in the real property that is the subject of the foreclosure, may require the owner and holder of the mortgage to foreclose by action and for that purpose shall present to the court having jurisdiction thereof an application describing the mortgage and stating the applicant's interest and stating why the mortgage should be foreclosed by action without necessity of stating any reasons, and upon such application the judge of such court shall, by an order to that effect, enjoin the mortgagee or the mortgagee's assignee from foreclosing such mortgage by advertisement, and direct that all further proceedings for the foreclosure be had in the circuit court properly having jurisdiction of the subject matter. For the purpose of carrying out the provisions of this section, service may be made upon the attorney or agent of the mortgagee or assignee.
Source: SL 1883, ch 61, § 1; CL 1887, § 5411; RCCivP 1903, § 636; RC 1919, § 2876; SL 1927, ch 163; SL 1933, ch 135; SDC 1939 & Supp 1960, § 37.3001; SL 1961, ch 199; SL 2002, ch 101, § 2.
21-48-10. Time and place of sale--Officer making sale.
A sale under this chapter must be at public auction between the hours of nine o'clock in the forenoon and five o'clock in the afternoon on that day, in the county in which the premises to be sold, or some part thereof, are situated, and must be made by the sheriff of such county, or his deputy, to the highest bidder.
Source: CCivP 1877, § 602; CL 1887, § 5416; SL 1891, ch 84; RCCivP 1903, § 641; RC 1919, § 2881; SDC 1939 & Supp 1960, § 37.3005.
21-48-11. Postponement of sale--Notice.
Such sale may be postponed, from time to time, by inserting a notice of such postponement, as soon as practicable, in the newspaper in which the original advertisement was published, and continuing such publication until the time to which such sale shall be postponed, at the expense of the party requesting such postponement.
Source: CCivP 1877, § 603; CL 1887, § 5417; RCCivP 1903, § 642; RC 1919, § 2882; SDC 1939 & Supp 1960, § 37.3005.
21-48-12. Sale by parcels--Sale terminated when sufficient amount raised.
If the mortgaged premises consist of distinct farms, tracts, or lots, they must be sold separately, unless the same consist of platted lots having a structure partly upon each, in which case the lots must be sold as one tract; provided that whenever there be a paramount lien upon two or more lots or parcels of land not contiguous which paramount lien covers two or more of such separate lots or parcels, the separate lots or parcels may be sold in one parcel subject to such paramount lien. Except as are hereinbefore provided, no more farms, tracts, or lots must be sold than shall be necessary to satisfy the amount due on such mortgage at the date of the notice of sale, with interest, and the costs and expenses allowed by law.
Source: CCivP 1877, § 604; CL 1887, § 5418; RCCivP 1903, § 643; RC 1919, § 2883; SL 1929, ch 179; SDC 1939 & Supp 1960, § 37.3005.
21-48-13. Purchase by mortgagee at sale.
The mortgagee, his assigns, or their legal representatives, may, fairly and in good faith, purchase the premises so advertised, or any part thereof, at such sale.
Source: CCivP 1877, § 605; CL 1887, § 5419; RCCivP 1903, § 644; RC 1919, § 2884; SDC 1939 & Supp 1960, § 37.3005.
21-48-14. Proof of value required for deficiency judgment after purchase by mortgagee--Other purchasers unaffected--Negotiability of instruments protected.
When any sale of real estate has been made by a mortgagee, trustee, or other person authorized to make the same at which the mortgagee, payee, or other holder of the obligation thereby secured becomes the purchaser and takes title, either directly or indirectly, before such mortgagee, payee, or other holder of the secured obligation as aforesaid, shall be entitled to any deficiency judgment against the mortgagor, trustor, or other maker of any such obligation whose property has been so purchased, he shall first establish to the satisfaction of the court in which such action for a deficiency judgment is pending that the property covered by such mortgage sold at foreclosure sale for its true market value or more at the time of such sale, and in adjudging any such deficiency the court in arriving at the amount of such judgment shall deduct from the amount of the mortgage indebtedness remaining unsatisfied after the sale of the mortgaged property the difference between the true market value of said property at the time of such sale and the amount for which it sold, if such amount was less than the true market value at the time of sale.
This section shall not affect nor apply to the rights of other purchasers or of innocent third parties nor shall it be held to affect or defeat the negotiability of any note, bond, or other obligation secured by such mortgage, deed of trust, or other instrument.
This section shall not apply to foreclosure sales made pursuant to an order or decree of court nor to any judgment sought or rendered in any foreclosure by action nor to any sale confirmed prior to July 1, 1937.
Source: SL 1937, ch 208; SDC 1939 & Supp 1960, § 37.3007.
21-48-15. Costs, disbursements and attorney fees allowed from proceeds of sale.
The party foreclosing a mortgage by advertisement shall be entitled to his costs and disbursements, including any attorney fees allowed by law, out of the proceeds of the sale.
Source: CCivP 1877, § 615; SL 1887, ch 28, § 1; CL 1887, § 5429; RCCivP 1903, § 654; RC 1919, § 2895; SDC 1939 & Supp 1960, § 37.3014.
21-48-16. Surplus proceeds of sale paid to clerk of court--Notice to mortgagor and junior lien holders of deposit of surplus.
It shall be the duty of every officer who conducts any such sale to apply the proceeds thereof as provided in § 21-47-18, except that the surplus, if any, shall be paid to the clerk of the circuit court and he shall give his receipt therefor. The sheriff shall forthwith give notice by mail to the mortgagor, his personal representatives or assigns, and to all persons holding junior encumbrances or liens, of the deposit of such surplus with the clerk.
Source: CCivP 1877, § 610; SL 1887, ch 27, § 1; CL 1887, § 5424; SL 1893, ch 118; RCCivP 1903, §§ 649, 664; RC 1919, § 2885; SL 1923, ch 222; SDC 1939 & Supp 1960, § 37.3006.
21-48-17. Investment of surplus proceeds deposited with clerk.
If such surplus, or any part thereof, shall remain with the clerk of said court for a term of three months without the rights thereto being fully determined, the clerk may deposit the same in some bank in said county and take an interest-bearing certificate of deposit therefor, and hold the same for the benefit of the person or persons who may be entitled thereto until the rights of the parties thereto have been fully determined.
Source: SL 1923, ch 222; SDC 1939 & Supp 1960, § 37.3006.
21-48-18. Cancellation or endorsement of evidence of debt on application of proceeds of sale.
If the amount realized at the sale was sufficient to satisfy the mortgage debt and all other sums due at date of sale, the officer shall cancel the evidence of the debt by permanent endorsement thereon and return it to the person primarily liable thereon upon demand of such person or his attorney but if no such demand be made prior to the time deed or redemption under the foreclosure is made, the officer shall be no longer responsible for such return. If the amount realized at such sale is not sufficient to pay the sums due as aforesaid, the officer shall endorse on the evidence of the debt in permanent form, the amount of the sale and the amount remaining due on the debt, and return the evidence of the debt to the mortgagee, assignee, or other owner thereof. The officer making such endorsements shall date and sign the same.
Source: SDC 1939 & Supp 1960, § 37.3006.
21-48-19. Certificate of sale given to purchaser--Contents--Execution and recording.
The officer making such real estate mortgage foreclosure sale shall give to the purchaser a certificate of sale, containing:
(1) A recital of the fact of the sale, stating the time and place, and the name of the purchaser;
(2) A particular description of the real property sold;
(3) The price bid for each distinct lot or parcel;
(4) The whole price paid; which certificate must be executed and acknowledged and shall be recorded in the office of the register of deeds where the mortgage is recorded within ten days from the date of sale, and shall have the same validity and effect as a certificate of sale of real property under execution.
Source: CCivP 1877, § 606; CL 1887, § 5420; RCCivP 1903, § 645; SL 1907, ch 189; RC 1919, § 2886; SL 1925, ch 222; SDC 1939, § 37.3008; SL 1949, ch 141, § 1.
21-48-20. Prior certificates validated despite delay in recording--Rights barred by no action.
All certificates of mortgage foreclosure sale of real property by advertisement under power of sale recorded prior to January 1, 1992, and the records of such certificates, are hereby legalized, cured, and validated, and such certificates and the record thereof are made and declared to be in every manner and respect of like force and effect as though such certificates had been recorded within ten days from the date of sale as required by § 21-48-19.
If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.
Source: SDC 1939, § 65.0304; SL 1992, ch 307, § 12.
21-48-21. Deed given on expiration of time for redemption--Mortgagor entitled to harvest crops planted before issuance of deed.
If such mortgaged premises are not redeemed, the officer or his successor in office, or some other person appointed by the circuit court for that purpose, shall complete such sale, by executing a deed of the premises so sold to the original purchaser, his heirs, or assigns, or to any person who may have acquired the title and interest of such purchaser by redemption or otherwise. Whenever crops have been sown on the mortgaged premises, before the issuance of a sheriff's deed, the mortgagor 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: CCivP 1877, § 609; CL 1887, § 5423; RCCivP 1903, § 648; SL 1909, ch 78; SL 1913, ch 269; RC 1919, § 2890; SDC 1939 & Supp 1960, § 37.3011; SL 1986, ch 177, § 1.
21-48-22. Validation of prior proceedings on which deed issued--Time allowed for protection of existing rights.
All proceedings of mortgage foreclosure sale of real property by advertisement, and completed by issuance of sheriff's deed prior to July 1, 1941, and which proceedings were irregular or defective, are hereby legalized, cured and validated as fully as if such foreclosure proceedings had been wholly regular and as by law provided.
The provisions of this section shall not apply to any action involving real property which was pending on July 1, 1951, or which was commenced prior to July 1, 1952, as to which a notice of the pendency of such action was recorded prior to July 1, 1952, as provided herein.
If any person has any vested right in any real property, or any part thereof, by reason of any mortgage foreclosure sale such as is referred to herein, if no action or proceeding to enforce such right was begun prior to July 1, 1952, such rights shall be forever barred; and no action or proceeding so brought shall be of any force or effect, or maintainable in any court of this state, unless, prior to July 1, 1952, there was recorded in the office of the register of deeds of the county in which the real estate affected is situated a notice of the pendency of such action, in accordance with the provisions of chapter 15-10.
Source: SL 1951, ch 197; SDC Supp 1960, § 65.0304-1.
21-48-22.1. Prior foreclosure sales validated despite defects--Rights barred by no action.
All mortgage foreclosure sales of real property by advertisement, under power of sale contained in such mortgages, made before January 1, 1992, the sheriff's deed thereof having been executed and delivered to the purchaser of such real property before January 1, 1975, notwithstanding any defect of notice, acknowledgment of any instrument or the recording thereof, or any other defect in the proceeding, are hereby cured, legalized, and validated as fully as if such foreclosure proceedings had been made in full compliance with all existing statutes or laws.
If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.
Source: SL 1975, ch 167; SL 1992, ch 307, § 13.
21-48-23. Record of foreclosure sale--Affidavits and certificate recorded--Notation by register of deeds.
A record of foreclosure sale must be made as follows:
(1) An affidavit of the publication of the notice of sale and of any notice of postponement must be made by the printer or publisher of the newspaper in which such notice was published, or some person in his employ knowing the facts;
(2) An affidavit by the person foreclosing the mortgage, or his attorney, or someone knowing the facts, setting forth the facts relating to the military service status of the owner of the mortgaged premises at the time of sale which affidavit, where such may be required, may also set forth the fact of service of notice of sale upon the secretary of the treasury of the United States of America or his delegate in accordance with the provisions of subsection (c)(1) of section 7425 of the Internal Revenue Code of 1954 as amended by Public Law 89-719, known as the Federal Tax Lien Act of 1966, and as amended through January 1, 1987;
(3) An affidavit executed by the person foreclosing the mortgage, that person's attorney or someone knowing the facts, stating that the mortgagor and any person who is required to receive notice under § 21-48-6.1 have been given notice of the foreclosure and that no request for foreclosure by action has been made;
(4) Such affidavits and the certificate of sale hereinabove provided for, must be recorded at length by the register of deeds of the county in which the real property is situated in a book kept for that purpose, and such original instruments, or the records thereof, or certified copies of such records, shall be prima facie evidence of the facts therein contained;
(5) A note shall be made by the register of deeds in the margin of the record of any mortgage which has been foreclosed, showing the book and page where the evidence of such foreclosure sale is recorded.
Source: SDC 1939, § 37.3012; SL 1949, ch 141, § 2; SL 1957, ch 197; SL 1967, ch 151; SL 1987, ch 29, § 78; SL 2002, ch 101, § 4.
21-48-24. Affidavits recorded to show compliance with federal acts.
The affidavit provided for in subdivision 21-48-23(2) may be made and filed for record for the purpose of complying with the provisions of the Servicemembers Civil Relief Act of 2003, 54 Stat. 1178, 50 App. U.S.C.A. 501-48 and 560-591, as amended to January 1, 2007, and if required, for the purpose of showing compliance with the Federal Tax Lien Act, as amended to January 1, 2007. The affidavit may be made and filed for record at any time after the mortgage foreclosure sale, whether the sale was heretofore or is hereafter made.
Source: SDC 1939, § 37.3012 as added by SL 1957, ch 197; SL 1967, ch 151; SL 2007, ch 187, § 234.
21-48-25. Interest vested in purchaser by recording of instruments.
A record of the instruments described in § 21-48-23 and the deed executed upon the sale of the real property, shall vest in the purchaser or person acquiring title thereto by redemption or otherwise, the same interest as a deed upon foreclosure of a real estate mortgage by action in court.
Source: CCivP 1877, § 614; CL 1887, § 5428; RCCivP 1903, § 653; RC 1919, § 2894; SDC 1939, § 37.3012; SL 1949, ch 141, § 2; SL 1957, ch 197; SL 1967, ch 151.
21-48-26. Validation of sales prior to January 1, 1982--Pending proceedings.
All mortgage foreclosure sales of real property by advertisement under power of sale contained in such mortgages, in which the sheriff's certificate of sale therefor was executed and recorded before January 1, 1992, in the office of the register of deeds of the county, or counties, where the real estate affected thereby is situated, are, notwithstanding any defect or irregularity therein, hereby cured, legalized, and validated.
The provisions of this section do not apply to any action or proceeding involving real property pending on July 1, 1993, or commenced prior to July 1, 1993, if a notice of the pendency of such action or proceeding was recorded prior to July 1, 1993.
If anyone has any right in any real property, or any part thereof, adversely affected by a mortgage foreclosure sale referred to in this section, and no action or proceeding to enforce such right is commenced prior to July 1, 1993, such right shall be forever barred, and no action or proceeding so brought may be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, a notice of the pendency of such action or proceeding was recorded in accordance with the provisions of chapter 15-10 in the office of the register of deeds of the county, or counties, where any real property affected thereby is situated.
Source: SL 1982, ch 175; SL 1992, ch 307, § 14.
21-48A-1
Voluntary foreclosure procedure--Notice.
21-48A-2
Lien released upon failure of junior lienholder to redeem.
21-48A-3
Possession of property by mortgagee.
21-48A-4
Judicial foreclosure action by junior lienholder before redemption period.
21-48A-5
Redemption of real property by junior lienholder--Quit claim deed.
21-48A-1. Voluntary foreclosure procedure--Notice.
Upon the mutual written agreement of the mortgagor and mortgagee, a real estate mortgage may be foreclosed pursuant to this chapter by doing all of the following:
(1) The mortgagor shall convey to the mortgagee, subject to acceptance, all interest in the real property subject to the mortgage;
(2) The mortgagee shall accept the mortgagor's conveyance and waive any rights to a deficiency against the mortgagor arising from the mortgage;
(3) The mortgagee shall have immediate possession of the real property;
(4) The mortgagor and mortgagee shall file a jointly executed document with the register of deeds stating that the mortgagor and mortgagee have elected to follow the alternative voluntary foreclosure procedures pursuant to this chapter;
(5) The mortgagee shall send by certified mail a notice of the election to all junior lienholders as of the date of the conveyance under subdivision (1) of this section, determined from the records of the applicable clerk of courts and register of deeds, stating that the junior lienholders have sixty days from the date of mailing to exercise any rights of redemption. Such notice shall also include the sum necessary to redeem the premises. Such sum may include the principal debt, interest thereon at the applicable rate, and all other payments made by the mortgagee and reasonably incurred to protect the first mortgagee's mortgage, and to preserve and protect the property, including reasonable attorney's fees;
(6) On the date of the written agreement provided in this section, the mortgagee shall furnish the mortgagor a completed form in duplicate, captioned "Disclosure and Notice of Cancellation". The form shall be attached to said written agreement, shall be in conspicuous type and shall be in the following general form:
"DISCLOSURE AND NOTICE OF CANCELLATION
_________________________
(enter date of transaction)
South Dakota foreclosure law requires that you have the right to redeem your property from foreclosure. If you agree to this voluntary foreclosure you will be giving up your right to redeem your real estate.
Under foreclosure law, if your mortgage lender does not receive enough money to cover what you owe when the property is sold, you could be required to pay the deficiency. If your mortgage lender receives more money than you owe, the difference must be paid to you. If you agree to this voluntary foreclosure you will not have to pay any deficiency but you also will not be paid any excess, if any.
NOTE: There may be other advantages and disadvantages, including an effect on your income tax liability. If you have any question or doubts, you are encouraged to obtain competent advice.
You may cancel this transaction, without penalty or obligation, within five business days from the above date.
This transaction is entirely voluntary. You cannot be required to sign the attached foreclosure agreement.
This voluntary foreclosure agreement will become final unless you sign and deliver or mail this notice of cancellation to
__________________ before midnight of __________________
(name of mortgagee) (enter proper date).
I HEREBY CANCEL THIS TRANSACTION.
______________________________ _____________________________________
DATE SIGNATURE"
Source: SL 1991, ch 185, § 1.
21-48A-2. Lien released upon failure of junior lienholder to redeem.
A junior lienholder may redeem the real property pursuant to § 21-48A-5. If a junior lienholder fails to redeem its lien as provided in this chapter, its lien shall be released from the property.
Source: SL 1991, ch 185, § 2.
21-48A-3. Possession of property by mortgagee.
Until the completion of foreclosure pursuant to this chapter, the mortgagee shall possess the real property subject to liens of record at the time of the conveyance by the mortgagor. However, the lien of the mortgagee shall remain prior to liens which were junior to the mortgage at the time of conveyance by the mortgagor to the mortgagee.
Source: SL 1991, ch 185, § 3.
21-48A-4. Judicial foreclosure action by junior lienholder before redemption period.
Any junior lien holder may commence a judicial foreclosure pursuant to chapter 21-47, if commenced before the redemption period provided in § 21-48A-1.
Source: SL 1991, ch 185, § 4.
21-48A-5. Redemption of real property by junior lienholder--Quit claim deed.
A lienholder of record may redeem real property which has been foreclosed by a mortgagee pursuant to this chapter. The redemption shall be made pursuant to § 21-52-14. Upon payment, the mortgagee shall convey the property by quit claim deed to the redeeming junior lienholder.
Source: SL 1991, ch 185, § 5.
21-49-1 to 21-49-10.
Repealed.
21-49-11
Foreclosure alternatives available on small tracts subject to chapter--Mortgages under earlier law.
21-49-12
Clause subjecting mortgage to chapter--Caption required--Mortgagor's right
to possession of property during redemption period.
21-49-13
Provisions includable in mortgage--Satisfaction of notice requirements.
21-49-14
Forms of mortgages authorized--Address and description requirements not
applicable.
21-49-15
Commencement of foreclosure or satisfaction action--Service of process on
nonresident defendant--Required defendants.
21-49-16
Service by publication.
21-49-17
Joinder of other persons liable--Judgment and enforcement of judgment as
against mortgagor.
21-49-18
Other recovery proceedings to be stated in complaint.
21-49-19
Money judgment as precluding foreclosure unless execution remains
unsatisfied.
21-49-20
Recovery proceedings not allowed pending foreclosure action.
21-49-21
Time for defendant's answer.
21-49-22
Injunction against injury to property--Duration.
21-49-23
Judgment rendered for amount due and costs--Sale of property and delivery
to purchaser--Lien priorities.
21-49-24
Sale by court-appointed officer--Levy not required.
21-49-25
Notice of sale--Contents.
21-49-26
Mortgagee may purchase at sale--Bid required.
21-49-27
Bid of less than full debt amount--Requirements--Execution for deficiency.
21-49-28
Foreclosure as complete satisfaction of debt.
21-49-29
Application of sale proceeds.
21-49-30
Certificate of sale to purchaser--Contents--Recording--Commencement of
redemption period.
21-49-31
Redemption defined.
21-49-32
Waste of property restrained during redemption period.
21-49-33
Right of judgment debtor and lien holders to redeem.
21-49-34
Payments by persons redeeming.
21-49-35
Notice of redemption--Form--Recording.
21-49-36
Certificate of redemption--Contents.
21-49-37
Recording certificate of redemption.
21-49-38
Deed issued after short redemption or abandonment period--Maximum
period.
21-49-39
Repealed.
21-49-40
Citation of chapter.
21-49-11. Foreclosure alternatives available on small tracts subject to chapter--Mortgages under earlier law.
Any mortgage made pursuant to this chapter on real property of an area of not more than forty acres containing therein a power of sale, upon default being made in the conditions of the mortgage, may be foreclosed as provided in chapter 21-47 or 21-48 or as provided in this chapter. Any mortgage made pursuant to §§ 21-49-1 to 21-49-10 prior to July 1, 1977 may be foreclosed as provided therein or as provided in this section.
Source: SL 1963, ch 236, § 1; SDCL, § 21-49-1; SL 1972, ch 135; SL 1977, ch 187, § 1; SL 1979, ch 157, § 1.
21-49-12. Clause subjecting mortgage to chapter--Caption required--Mortgagor's right to possession of property during redemption period.
Any mortgage containing the following statement in printed or typed capital letters: "THE PARTIES AGREE THAT THE PROVISIONS OF THE ONE HUNDRED EIGHTY DAY REDEMPTION MORTGAGE ACT GOVERN THIS MORTGAGE," shall be subject to the provisions of this chapter. Any mortgage executed under this chapter shall be entitled in printed or typed capital letters: "MORTGAGE--ONE HUNDRED EIGHTY DAY REDEMPTION." No mortgage made pursuant to this chapter shall contain any provisions whereby the mortgagor is denied the right to possession of the mortgaged property during the redemption period as provided in this chapter.
Source: SL 1963, ch 236, § 5; SDCL, § 21-49-2; SL 1977, ch 187, § 2.
21-49-13. Provisions includable in mortgage--Satisfaction of notice requirements.
In particular, but without limitation, any mortgage subject to the provisions of this chapter, may contain provisions relating to:
(1) In the case of default in the payment of the principal sum of money, or any part thereof, or interest thereon at the time specified for payment thereof, or in the case of nonpayment of any taxes, assessments, or insurance as required, or of breach of any covenant or agreement contained in the mortgage, then, the total debt, principal and interest, shall at the option of the holder of the mortgage, immediately become due and payable, upon twenty days' notice to the mortgagor. The notice may be given concurrently with any notice of the mortgagor's right to cure existing defaults. Thereafter the mortgage may be foreclosed, as provided in this chapter;
(2) In the case of foreclosure, that the holder of the mortgage shall recover reasonable attorney fees and actual disbursements necessarily incurred;
(3) In the case of foreclosure, that the holder of the mortgage is authorized to appoint a receiver to take possession of the mortgaged premises, if the premises are abandoned, or to have a receiver appointed by the circuit court upon sufficient proof being established therefor;
(4) An agreement for the collection of installment payments for taxes and insurance to be held in escrow, in an account with the mortgagee, until the due dates thereof;
(5) In the case of foreclosure, and during the period of redemption, that the mortgagor assigns all his rights and interest to the rental or income of the mortgaged premises;
(6) In the case of foreclosure, that the mortgagor shall pay to the holder of the mortgage the difference between the net proceeds of sale, if less than the total debt due;
(7) If the mortgaged premises are sold without the prior consent of the mortgagee, that the entire balance owing may at the option of the mortgagee be declared immediately due and payable upon sixty days notice to the mortgagor, and the mortgage foreclosed as provided in this chapter; or
(8) That in the case of foreclosure by action, the holder of the certificate of sale may apply to the court for a reduction of the redemption period if the property has been abandoned by the mortgagor. If, after notice to the parties as the court directs, the court finds the property has been abandoned, the redemption period may be reduced. The redemption period may not be reduced to less than sixty days from the date of recording the certificate of sale.
The notice requirements of this section shall be satisfied when the notice is deposited in the United States mail, registered or certified mail, return receipt requested, and addressed to the last known address of the mortgagor.
Source: SL 1977, ch 187, § 3; SL 1981, ch 170, § 1; SL 1987, ch 29, § 30; SL 1988, ch 184, § 1.
21-49-14. Forms of mortgages authorized--Address and description requirements not applicable.
Real estate mortgages, in any form, including but not limited to, open end mortgages, collateral real estate mortgages, renegotiated rate mortgages, shared appreciation mortgages, and variable rate mortgages are authorized under the provisions of this chapter. The provisions of § 7-9-7 shall not be applicable to proceedings under this chapter.
Source: SL 1977, ch 187, § 4; SL 1981, ch 170, § 2.
21-49-15. Commencement of foreclosure or satisfaction action--Service of process on nonresident defendant--Required defendants.
Any action for the foreclosure or satisfaction of mortgages under this chapter shall be commenced in the circuit court for the county where the mortgaged property, or some portion thereof, is situated. If a defendant is not a resident of the county, process may be served on him in any other county within the state. All persons having an interest in, or lien on, the mortgaged property as of the date of filing the action shall be named as defendants in the action.
Source: SL 1977, ch 187, § 5; SL 1981, ch 170, § 3.
21-49-16. Service by publication.
If the defendant is a nonresident of the state, or absent or concealed, or if he is a resident of the state and after due diligence cannot be found in the state, service may be made by publication in the manner prescribed by statute or rule of court in ordinary civil actions. If any proper party defendant is deceased, service upon unknown heirs, devisees, legatees, personal representatives, creditors, and other unknown persons who might have a right of redemption from the mortgage, may be made by publication, as provided by § 15-9-9.
Source: SL 1977, ch 187, § 6; SL 1995, ch 167, § 188.
21-49-17. Joinder of other persons liable--Judgment and enforcement of judgment as against mortgagor.
If the mortgage debt is secured by the obligation, or other evidence of debt, of any person other than the mortgagor, the plaintiff may make such other person a party to the action, and the court may render judgment for the balance of such debt remaining unsatisfied, after a sale of the mortgaged property, as well as against such other person as against the mortgagor, and may enforce such judgment as in other cases by execution or other process.
Source: SL 1977, ch 187, § 7.
21-49-18. Other recovery proceedings to be stated in complaint.
In an action for the foreclosure or satisfaction of a mortgage, the complaint shall state whether any proceedings have been had at law or otherwise for the recovery of the debt secured by such mortgage or any part thereof; and if a recovery has been had, whether any and what part thereof has been collected.
Source: SL 1977, ch 187, § 8.
21-49-19. Money judgment as precluding foreclosure unless execution remains unsatisfied.
If it appears that any judgment has been obtained in an action at law for the moneys demanded by such complaint, or any part thereof, no foreclosure proceedings shall be commenced in such case unless an execution against the property of the defendant in such judgment has been issued, and the sheriff or other officer shall have made return that the execution is unsatisfied in whole or in part, and that the defendant has no property other than property mortgaged under this chapter whereon to satisfy such execution.
Source: SL 1977, ch 187, § 9.
21-49-20. Recovery proceedings not allowed pending foreclosure action.
After action for foreclosure shall be commenced, and while it is pending, no proceedings at law shall be had for the recovery of the debt secured by the mortgage.
Source: SL 1977, ch 187, § 10.
21-49-21. Time for defendant's answer.
A defendant in an action for foreclosure shall serve his answer to the complaint of the plaintiff within thirty days after service of the summons.
Source: SL 1977, ch 187, § 11.
21-49-22. Injunction against injury to property--Duration.
The court may by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of the mortgaged property during the existence of a lien or the foreclosure of a mortgage thereon, and until the expiration of the time allowed for redemption.
Source: SL 1977, ch 187, § 12.
21-49-23. Judgment rendered for amount due and costs--Sale of property and delivery to purchaser--Lien priorities.
In an action for foreclosure or satisfaction, a court may:
(1) Render a judgment against the mortgagor for the amount of the mortgage debt due at the time of the rendition of such judgment, and the costs of the action, including reasonable attorney fees and actual disbursements made,
(2) Order and decree a sale of the mortgaged property, or such part thereof as may be sufficient to pay the amount adjudged to be due, and costs of sale,
(3) If deemed necessary, direct in what parcels the property shall be offered, and the order in which they shall be offered and further to direct that if there be no bid for any parcel, such parcel may be sold with any other parcel, not yet sold, in one parcel; and
(4) Order and compel the delivery of possession of the property to the purchaser.
In no case under this chapter shall the possession of the property so sold be delivered to the person entitled thereto, until after the expiration of the period of redemption, subject however to the rights of any person under a valid assignment of rents, and a receiver in possession thereof. There shall be added to the amount of any such judgment all sums reasonably expended by the mortgagee for the protection and preservation of the mortgaged property or the mortgagee's interest therein. The court shall further determine the priority of any other liens, the owners of which were made a party to the action, and shall have the further power to determine the rights of subsequent liens filed after the commencement of suit.
Source: SL 1977, ch 187, § 13; SL 1981, ch 170, § 4.
21-49-24. Sale by court-appointed officer--Levy not required.
Any sale of mortgaged property shall be made by a person appointed by the court, and shall be made as the court shall direct, in the county where the property, or some part is located. No levy on mortgaged property under the judgment shall be required and the officer may proceed to advertise and sell it upon receipt of the judgment without further proceedings.
Source: SL 1977, ch 187, § 14.
21-49-25. Notice of sale--Contents.
Notice of the sale of such mortgaged property shall be given by publishing it at least once a week for at least two successive weeks in a legal newspaper of general circulation in each of the counties where the property is located. Each notice shall specify:
(1) The name of the mortgagor, and any assignee;
(2) The amount claimed to be due;
(3) The date of the mortgage;
(4) A description of the property, as described in the mortgage;
(5) The time, manner and place of sale, as directed by the court; and
(6) Any other matter as ordered by the court.
Source: SL 1977, ch 187, § 15.
21-49-26. Mortgagee may purchase at sale--Bid required.
The holder of the mortgage may purchase the premises or any part thereof at the foreclosure sale if the holder bids therefor the full amount of the judgment debt, less the sum of the balances due, as of the date of sale, on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments. In no event, however, may the holder of the mortgage be required to bid a sum in excess of the debt adjudged to be due, with the costs included in the judgment upon which sale was made, and expenses of sale.
Source: SL 1977, ch 187, § 15; SL 1989, ch 191, § 3.
21-49-27. Bid of less than full debt amount--Requirements--Execution for deficiency.
If the holder of the mortgage is not willing to bid the full amount of the judgment debt, and if foreclosure has been commenced by action, such holder shall establish at the time of the trial to the satisfaction of the court, the fair and reasonable value of the mortgaged premises, and the court shall determine the value less the sum of the balances due, as of the date of judgment, on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments. If the court shall find such fair and reasonable value, less the sum of the balances due, as of the date of judgment, on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments, to be less than the sum due on the mortgage with costs and disbursements, and expense of sale, the court may by such judgment authorize such holder to bid not less than the value as thus determined, less the sum of the balances due, as of the date of sale, on any prior liens or encumbrances upon the mortgaged premises, including liens or charges for real property taxes and special assessments. If foreclosure has been commenced by advertisement, the mortgagee may seek a deficiency in accordance with § 21-48-14. If foreclosure has been commenced by action and a deficiency remains after the foreclosure sale, such holder shall be entitled to a general execution for such deficiency only upon application to the court.
Source: SL 1977, ch 187, § 16; SL 1981, ch 170, § 5; SL 1989, ch 191, § 4.
21-49-28. Foreclosure as complete satisfaction of debt.
Except as provided in § 21-49-27, such foreclosure shall operate as a complete satisfaction of the debt secured by a mortgage and judgment issued under this chapter.
Source: SL 1977, ch 187, § 17.
21-49-29. Application of sale proceeds.
It shall be the duty of any officer who conducts any such sale to apply the proceeds in the following priority:
(1) To the payment of the expenses of sale;
(2) To the payment of the costs included in the judgment upon which sale was made;
(3) To the discharge of the debt adjudged to be due;
(4) To pay the surplus, if any, into court for the use of the defendants subject to the order of the court.
Source: SL 1977, ch 187, § 18.
21-49-30. Certificate of sale to purchaser--Contents--Recording--Commencement of redemption period.
The person making such sale shall give to the purchaser a certificate of sale, containing:
(1) A recital of the fact of the sale, stating the time, and place, and the name of the purchaser;
(2) The legal description of the property sold;
(3) The price bid for each distinct parcel; and
(4) The whole price paid.
The certificate shall be executed and acknowledged and shall be recorded in the office of the register of deeds where the property is located within twenty days from the date of sale. The period of redemption as provided in this chapter shall commence on the date that the certificate is recorded.
Source: SL 1977, ch 187, § 19.
21-49-31. Redemption defined.
Redemption as provided in this chapter is the right to repay the total amount of the judgment, and any deficiency as determined by the court, together with such additional sums as prescribed by § 21-49-34.
Source: SL 1977, ch 187, § 20.
21-49-32. Waste of property restrained during redemption period.
Until the expiration of the time for redemption, the court may restrain the commission of waste on the property upon the application of the purchaser or the judgment creditor.
Source: SL 1977, ch 187, § 21.
21-49-33. Right of judgment debtor and lien holders to redeem.
The judgment debtor or successor, and the holders of any lien, legal or equitable, subsequent and junior to that from which redemption is to be made, on the property sold, or any part thereof, shall have the right to redeem from such sale during the redemption period.
Source: SL 1977, ch 187, § 22.
21-49-34. Payments by persons redeeming.
Such persons may redeem from the purchaser by paying the person making the sale the amount of the purchase price, plus any sums paid by the purchaser to protect his interest in such property in particular, but not in limitation thereof, for such items as taxes, insurance, maintenance expenses reasonably incurred to preserve the value of the mortgaged premises, or payments on a superior lien, together with interest on the total judgment at the same rate of interest as provided in the mortgage. If the purchaser also is the holder of another lien upon the property foreclosed, or part thereof, other than the mortgage upon which sale was made, which additional lien is superior to the lien of the person redeeming, the person redeeming shall likewise pay the amount of such additional lien including interest at the rate provided by the lien or at the legal rate to the date of payment.
Source: SL 1977, ch 187, § 23.
21-49-35. Notice of redemption--Form--Recording.
A written notice of redemption shall be served on the purchaser and the person making the sale by the person seeking to redeem. If such person redeem as holder of a judgment, notice shall be a certified copy thereof. If such person redeem as holder of a mortgage or other lien, notice shall be a certified copy of the record thereof, together with a certified copy of any assignment to establish his claim, and an affidavit showing the amount then actually due on the lien; and at the same time shall pay to the person making the sale the amount prescribed by § 21-49-34. If such person redeem as a successor in interest of a judgment debtor, notice shall be proof of interest in such property.
A duplicate of the notice of redemption with proof of service shall be forthwith filed for record with the register of deeds of the counties where the property is located.
Source: SL 1977, ch 187, § 24.
21-49-36. Certificate of redemption--Contents.
Upon such redemption, the person who made the sale shall execute and deliver to the person making redemption a certificate of redemption duly acknowledged setting forth the fact of such redemption, the amount paid, specifying the items required to be paid under the terms of this chapter and the date of such redemption.
Source: SL 1977, ch 187, § 25.
21-49-37. Recording certificate of redemption.
The certificate of redemption shall be filed for record in the office of register of deeds of the counties where the property is located.
Source: SL 1977, ch 187, § 26.
21-49-38. Deed issued after short redemption or abandonment period--Maximum period.
Unless the property is redeemed from the sale within one hundred eighty days or within sixty days if the property is abandoned, from the recording of the certificate of sale, it is the duty of the person who made the sale to execute and deliver a deed of the property sold to the purchaser, or to any person who may have acquired the title and interest of the purchaser. In no event may redemption be extended beyond the period of one hundred eighty consecutive days, computed from the date the certificate is recorded.
Source: SL 1963, ch 236, § 4; SDCL, § 21-49-9; SL 1977, ch 187, § 27; SL 1988, ch 184, § 2.
21-49-40. Citation of chapter.
This chapter may be cited as the "One Hundred Eighty Day Redemption Mortgage Act."
Source: SL 1963, ch 236, § 5; SDCL, § 21-49-10; SL 1977, ch 187, § 29.
21-50-1
Foreclosure action brought on default in executory contract.
21-50-2
Repealed.
21-50-3
Time allowed by judgment for compliance with terms of contract--Final judgment
barring rights on failure to comply.
21-50-4
Costs and attorney fee awarded in judgment.
21-50-5
Receipt or affidavit establishing record of compliance with judgment.
21-50-6
Clerk's certificate as to noncompliance with judgment--Conclusive evidence of facts.
21-50-7
Remedy not exclusive.
21-50-1. Foreclosure action brought on default in executory contract.
Whenever default has occurred in the performance of any of the terms and conditions of an executory contract for the sale or exchange of real property, an action may be brought in the circuit court for the county in which such property, or some part thereof, is situated for a foreclosure of all rights under such contract asserted adversely to the plaintiff in such action.
Source: SL 1913, ch 138, § 1; RC 1919, § 2914; SDC 1939 & Supp 1960, § 37.3101.
21-50-3. Time allowed by judgment for compliance with terms of contract--Final judgment barring rights on failure to comply.
Upon the trial of an action under this chapter the court shall have power to and by its judgment shall fix the time within which the party or parties in default must comply with the terms of such contract on his or their part, which time shall be not less than ten days from the rendition of such judgment, and unless the parties against whom such judgment is rendered shall fully comply therewith within the time specified, such judgment shall be and become final without further order of the court, and all rights asserted under the contract sued on shall thereupon be forever barred and foreclosed.
Source: SL 1913, ch 138, § 1; RC 1919, § 2914; SDC 1939 & Supp 1960, § 37.3101.
21-50-4. Costs and attorney fee awarded in judgment.
Costs including a reasonable attorney fee to be fixed by the court may be awarded in such actions in the discretion of the court.
Source: SL 1913, ch 138, § 3; RC 1919, § 2916; SDC 1939 & Supp 1960, § 37.3102.
21-50-5. Receipt or affidavit establishing record of compliance with judgment.
Record of compliance with the judgment must be made by filing in the office of the clerk of the court where the judgment is docketed a receipt or other satisfaction from the party or his attorney of record to whom payment or other performance is due, or by the affidavit of the party or his attorney of record from whom payment or other performance is due, showing that he has complied with the judgment and the reason that no receipt or other satisfaction is filed.
Source: SDC 1939 & Supp 1960, § 37.3101.
21-50-6. Clerk's certificate as to noncompliance with judgment--Conclusive evidence of facts.
Unless such record of compliance with the judgment is made on or before the date fixed for such compliance in the judgment, the clerk of the court shall certify that the time for compliance with said judgment has expired and that no compliance has been made and that the same has become the final judgment of the court, which certificate may be endorsed upon or attached to the judgment, and shall be dated, signed, sealed, and filed by the clerk of the court and shall be conclusive evidence of the facts necessary to establish the judgment as final so far as the rights of subsequent purchasers and encumbrancers in good faith and for value are concerned.
Source: SDC 1939 & Supp 1960, § 37.3101.
21-50-7. Remedy not exclusive.
This chapter shall not be treated or construed as exclusive of any other remedy authorized by law but as cumulative merely.
Source: SL 1913, ch 138, § 4; RC 1919, § 2917; SDC 1939 & Supp 1960, § 37.3103.
21-51-1
Limitation of actions on real property contract--Contract void after fifteen years.
21-51-2
Judicial discharge of lien or contract permitted if holder cannot be served in state--Proof required for discharge of contract.
21-51-3
Petition or complaint for discharge of record--Contents and allegations required.
21-51-4
Joinder of two or more applications for discharge.
21-51-5
Signature and verification of petition or complaint.
21-51-6
Order fixing time for hearing on petition or complaint--Notice.
21-51-7
Publication and posting of notice of hearing.
21-51-8
Proof required on hearing--Objections to relief requested.
21-51-9
Judgment discharging instrument and record--Contents and effect of judgment.
21-51-10
Recording of judgment--Effect as discharge.
21-51-11
Remedy not exclusive.
21-51-12
Removal of counterfeit lien--Filing of action.
21-51-13
Counterfeit document--Vacation of judgment.
21-51-1. Limitation of actions on real property contract--Contract void after fifteen years.
An action upon a contract or bond for the purchase or sale of real property, or for the recovery of the consideration payable thereunder must be commenced within fifteen years after the cause of action shall have accrued, or within fifteen years after the last payment thereunder shall have become due and payable, and, if not so commenced, such action shall be forever barred, and such contract or bond shall become null and void and if there be no conveyance of record from the vendor or his successor in interest to the purchaser or his successor in interest, such contract or bond shall be conclusively presumed to have been terminated, and such contract or bond shall cease to be notice of any rights of the purchaser and said period of fifteen years shall not be extended by nonresidence, legal disability or partial payment. This section shall apply to all such contracts or bonds affecting real estate in this state, both those heretofore executed and those hereafter executed.
Source: SL 1920 (SS), ch 67, § 1; SDC 1939, § 37.0902; SL 1957, ch 192.
21-51-2. Judicial discharge of lien or contract permitted if holder cannot be served in state--Proof required for discharge of contract.
The circuit court for any county in which a mortgage or other lien is filed or recorded or in which any real estate under contract or bond for purchase or sale is located, may, on application of any person having an interest in or lien upon the property affected and notice as hereinafter provided, make an order discharging such contract, bond, mortgage, or lien of record, on proof to the satisfaction of the court that the mortgage or lien has been fully paid or satisfied, and that the mortgagee, assignee, or lien holder is deceased and has no acting representative of his estate in this state or, if a domestic corporation, that it has been dissolved and has no acting officer, trustee, or receiver of its property or, if a foreign corporation that it has not complied with the laws of this state applying to foreign corporations and has no one in this state upon whom service can be made as provided by law.
In the case of real estate subject to a contract or bond for sale or purchase of the same, the proof must show that the conditions prescribed by § 21-51-1 exist.
Source: SL 1901, ch 108; RCCivP 1903, § 880; SL 1913, ch 272, § 1; RC 1919, § 3046; SL 1920 (SS), ch 67, § 2; SDC 1939 & Supp 1960, § 37.0901.
21-51-3. Petition or complaint for discharge of record--Contents and allegations required.
Any person having an interest in or lien or encumbrance upon any property described in any instrument referred to in §§ 21-51-1 and 21-51-2 may present his application, petition, or complaint to the circuit court for the county in which the property involved or any part thereof is situated, setting forth sufficient facts to show that the instrument or record thereof is subject to the provisions of this chapter together with such other facts, exhibits, or statements as the party in interest may desire to submit. The application, petition, or complaint shall identify the instrument or record sought to be discharged by naming the parties thereto, description of the property involved, date of the instrument, and book and page of record, if any.
Source: SL 1901, ch 108; RCCivP 1903, § 880; SL 1913, ch 272, § 1; RC 1919, § 3046; SL 1920 (SS), ch 67, § 2; Supreme Court Rule 564, 1939; SDC 1939, § 37.0903; Supreme Court Rule adopted October 20, 1947.
21-51-4. Joinder of two or more applications for discharge.
The application, petition, or complaint may join in one application, petition, or complaint two or more applications for the discharge of an expired contract, bond, mortgage, or lien of record.
Source: Supreme Court Rule adopted October 20, 1947; SDC Supp 1960, § 37.0903.
21-51-5. Signature and verification of petition or complaint.
The application, petition, or complaint shall be signed by an attorney licensed to practice in this state or by the party in interest and if signed by the party in interest, it shall also be verified by him.
Source: Supreme Court Rule 564, 1939; SDC 1939, § 37.0903; Supreme Court Rule adopted October 20, 1947.
21-51-6. Order fixing time for hearing on petition or complaint--Notice.
Upon the filing of the application, petition, or complaint in the office of the clerk of the court, the court shall by order fix a time and place for hearing the same and direct notice thereof to be given, which time shall be not less than thirty days from the first publication or posting of the notice as hereinafter provided.
Source: SL 1901, ch 108; RCCivP 1903, § 880; SL 1913, ch 272, § 1; RC 1919, § 3046; SL 1920 (SS), ch 67, § 2; Supreme Court Rule 565, 1939; SDC 1939 & Supp 1960, § 37.0904.
21-51-7. Publication and posting of notice of hearing.
Notice of hearing the application, petition, or complaint shall be given by publishing the same once each week for a period of three weeks preceding the hearing in some legal newspaper of the county to be designated in the order of the court as most likely to give notice to the persons interested. If no legal newspaper is published in such county, a notice shall be given by publishing the same in some legal newspaper in the state in an adjoining county and designated by the court as most likely to give notice to the persons interested and also by posting notice of such hearing at the front door of the courthouse of the county wherein the action is pending.
Source: SL 1901, ch 108; RCCivP 1903, § 880; SL 1913, ch 272, § 1; RC 1919, § 3046; SL 1920 (SS), ch 67, § 2; Supreme Court Rule 566, 1939; SDC 1939 & Supp 1960, § 37.0905.
21-51-8. Proof required on hearing--Objections to relief requested.
At the time and place of hearing, the court shall require proof of publication or publication and posting of the notice and may require such other proof as to it may seem necessary and shall hear any persons interested in the matter who may appear or file written objections against granting the relief requested.
Source: SL 1920 (SS), ch 67, § 2; Supreme Court Rule 567, 1939; SDC 1939 & Supp 1960, § 37.0906.
21-51-9. Judgment discharging instrument and record--Contents and effect of judgment.
The court may render judgment upon the record and proof required by this chapter canceling and discharging the instrument involved and any public record thereof. The judgment shall describe the instrument and the property involved and the book and page of the record of the instrument, if any, and such judgment shall be filed, entered, and docketed by the clerk and shall thereafter have the same force and effect as any other judgment of the court.
Source: SL 1901, ch 108; RCCivP 1903, § 880; SL 1913, ch 272, § 1; RC 1919, § 3046; SL 1920 (SS), ch 67, § 2; Supreme Court Rule 567, 1939; SDC 1939 & Supp 1960, § 37.0906.
21-51-10. Recording of judgment--Effect as discharge.
A certified copy of the judgment may be filed in the office of any register of deeds or other public official of the state and shall have the effect of canceling or discharging said record according to the terms of said judgment and shall be of the same effect as a discharge or release of such instrument duly executed and acknowledged by the lawful holder thereof.
Source: SL 1901, ch 108; RCCivP 1903, § 880; SL 1913, ch 272, § 1; RC 1919, § 3046; SL 1920 (SS), ch 67, § 2; Supreme Court Rule 567, 1939; SDC 1939 & Supp 1960, § 37.0906.
21-51-11. Remedy not exclusive.
The remedy provided by this chapter shall be cumulative and not exclusive of any other actions or remedies provided by law whereby the relief or any part thereof provided by this remedy might be obtained.
Source: SDC 1939 & Supp 1960, § 37.0907.
21-51-12. Removal of counterfeit lien--Filing of action.
A person who is the purported debtor or obligor or who owns real or personal property or an interest in real or personal property and who has reason to believe that the document purporting to create a lien or a claim against the real or personal property or an interest in the real or personal property previously recorded is counterfeit pursuant to chapter 22-11, may file an action in circuit court pursuant to § 20-9-33 or 20-9-34 to have the purported lien removed. The filing of such an action does not bar the injured party from recovering damages as part of the action, in addition to fees, costs, or expenses allowed by those sections.
Source: SL 1998, ch 41, § 2; SL 2005, ch 120, § 232.
21-51-13. Counterfeit document--Vacation of judgment.
A person against whom a purported judgment was rendered who has reason to believe that a document previously filed is counterfeit pursuant to § 22-11-29, may file an action in circuit court pursuant to § 20-9-34 to have the purported judgment vacated. The filing of such an action does not bar the injured party from recovering damages as part of the action, in addition to any fees, costs, or expenses allowed by that section.
Source: SL 1998, ch 41, § 4; SL 2005, ch 120, § 232.
21-52-1
Redemption defined--Sales subject to redemption.
21-52-2
Waste restrained during period of redemption--Uses of property not considered
waste.
21-52-3
Estates subject to redemption.
21-52-4
Foreclosure and execution sales subject to redemption.
21-52-5
Persons entitled to redeem.
21-52-6
Distinction between redemptioners abolished.
21-52-7
Owner's final right of redemption--Time allowed after expiration of other redemption
periods.
21-52-8
Action to redeem separate tract sold in combined sale--Determination of amount
required for redemption.
21-52-9
Redemptioner to redeem entire property.
21-52-10
Hearing and determination of amount required to redeem separate tract--Certificate
of redemption--Credit on price paid at sale.
21-52-11
Minimum time allowed for redemption--Exception for short-term redemption
mortgage.
21-52-12
Methods of extending time for redemption--Execution and recording of agreement
for extension--Redemptioners affected by agreement.
21-52-13
Extension of redemption period by payment of amounts then due--Certificate of
payment--Recording.
21-52-14
Amounts required for redemption from sale--Superior lien of purchaser included.
21-52-15
Expenses of annual assessment work on mining claims included in redemption price--Time of performing annual labor.
21-52-16
Notice of redemption served on purchaser or sheriff--Contents--Payment--Recording
of notice.
21-52-17
Proof of interest not required of party of record.
21-52-18
Proof of interest required of successor in interest.
21-52-19
Successive redemptions by junior lien holders.
21-52-20
Amounts payable to junior lien holders.
21-52-21
Amounts payable on partial redemptions.
21-52-22
Successive extensions of time on successive redemptions.
21-52-23
Time allowed for exercise of owner's final right of redemption.
21-52-24
Effect of sale terminated on final redemption by owner.
21-52-25
Certificate of redemption issued by sheriff--Contents of certificate--Statement of
amount required for further redemption.
21-52-26
Certificate of final redemption.
21-52-27
Recording of certificates of redemption.
21-52-28
Redemption by cotenant--Other cotenants obligated to contribute.
21-52-29
Service of notice and demand by cotenant making redemption--Notice of foreclosure
by failure to contribute.
21-52-30
Recording and service of notice by cotenant making redemption--Constructive notice.
21-52-31
Delivery and recording of certificate to cotenant making contribution.
21-52-32
Restoration of estate to cotenant making contribution.
21-52-1. Redemption defined--Sales subject to redemption.
Redemption is the right to repay the amount paid for real property or any interest thereon, sold on foreclosure of a real estate mortgage or on special or general execution against the property of a judgment debtor, or upon the foreclosure of any lien upon such real property other than a lien for taxes or special assessment.
Source: SL 1949, ch 142, § 1; SDC Supp 1960, § 37.5601.
21-52-2. Waste restrained during period of redemption--Uses of property not considered waste.
Until the expiration of the time for redemption, the court may restrain the commission of waste on the property, by order granted with or without notice, on the application of the purchaser or the judgment creditor.
It is not waste for the person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used, or in the ordinary course of husbandry; or to use timber or other material on the property for the necessary repair of buildings or fences thereon or fuel for his family while he occupies the property.
Source: SL 1949, ch 142, § 16; SDC Supp 1960, § 37.5616.
21-52-3. Estates subject to redemption.
Only real property held in fee, or by life estate, or by leasehold extending more than two years beyond the date of sale shall be subject to redemption.
Source: SL 1949, ch 142, § 2; SDC Supp 1960, § 37.5602.
21-52-4. Foreclosure and execution sales subject to redemption.
The interests in real property described in § 21-52-3, sold on foreclosure of a real estate mortgage or on special or general execution against the property of a judgment debtor, including special executions upon the foreclosure of any lien upon real property other than a lien for taxes or assessments shall be sold subject to redemption.
Source: SL 1949, ch 142, § 4; SDC Supp 1960, § 37.5604.
21-52-5. Persons entitled to redeem.
The owner, mortgagor, judgment debtor, or the successors of either, having any interest in the property sold and the holders of any lien, legal or equitable, subsequent and junior to that from which redemption is to be made, on the property sold, or any part thereof, or any share or interest therein, shall have the right to redeem from a sale of such property described in § 21-52-1, in the manner hereinafter described. Such persons are denominated redemptioners.
Source: SL 1949, ch 142, § 3; SDC Supp 1960, § 37.5603.
21-52-6. Distinction between redemptioners abolished.
Except as provided in §§ 21-52-7 and 21-52-24, all distinction between owners and other redemptioners is abolished.
Source: SL 1949, ch 142, § 7; SDC Supp 1960, § 37.5607 (1).
21-52-7. Owner's final right of redemption--Time allowed after expiration of other redemption periods.
The owner, his grantee, or successor in interest shall at all times have the final right to redeem after any and all redemptions as hereinafter provided shall have been made; and that right may be exercised by the owner, his grantee, or his successor in interest within fifteen days after the expiration of all other rights to redeem. The purpose of this section is to provide that the owner, any person to whom he has conveyed his title during the redemption period, and, in the event of his death, his successors in interest, shall possess a final right to redeem.
Source: SL 1949, ch 142, § 7; SDC Supp 1960, § 37.5607 (3).
21-52-8. Action to redeem separate tract sold in combined sale--Determination of amount required for redemption.
When the property sold on foreclosure of a mortgage, or upon general or special execution, consists of two or more separate farms, tracts, lots, or parcels of land, which at the time of sale are owned by two or more separate owners, or are subject to separate liens, giving to any person the right to redeem a separate property from the sale, and the property has not been sold separately, either under the provisions of § 21-48-12, or otherwise, any person having the right to redeem one or more of the tracts so sold, but less than the whole property sold, may bring an action in the circuit court of the county wherein the lands he seeks to redeem, or a portion of them, are situated, to have a determination of the amount properly to be paid by him to redeem the properties as to which he claims the right of redemption. Such action must be commenced within six months after the date of the sale of the property. In such action there shall be named as defendants the holder of the certificate of sale, the officer making the sale, and the record owners of all the tracts sold at such foreclosure or execution sale.
Source: SL 1949, ch 142, § 15; SDC Supp 1960, § 37.5615.
21-52-9. Redemptioner to redeem entire property.
No owner or lien holder shall have the right under § 21-52-8 to redeem less than the whole of the property owned by him or subject to his lien.
Source: SL 1949, ch 142, § 15; SDC Supp 1960, § 37.5615.
21-52-10. Hearing and determination of amount required to redeem separate tract--Certificate of redemption--Credit on price paid at sale.
The court shall hear an action brought under § 21-52-8 at a regular or special term, shall have the power to extend all time of redemption pending the determination of such action, and by its decree shall determine the amount required to redeem the lands described in plaintiff's complaint; and adjudge that upon payment of such sum, a certificate of redemption shall issue to plaintiff and the amount paid by him shall be credited upon the price paid by the purchaser at foreclosure or execution sale, and the amount required to redeem the balance of the property shall be reduced accordingly.
Source: SL 1949, ch 142, § 15; SDC Supp 1960, § 37.5615.
21-52-11. Minimum time allowed for redemption--Exception for short-term redemption mortgage.
All persons entitled to redeem shall in all cases have one year from the date of sale in which to redeem, except as to any one hundred eighty day redemption mortgage given either prior to or subsequent to July 1, 1977.
Source: SL 1949, ch 142, § 12; SDC Supp 1960, § 37.5612 (1); SL 1979, ch 157, § 2.
21-52-12. Methods of extending time for redemption--Execution and recording of agreement for extension--Redemptioners affected by agreement.
As to any redemptioner the right of redemption shall exist for one year after the sale of the property. The period of redemption herein limited may be extended in the manner described in §§ 21-52-13, 21-52-22 and 21-52-23 and may also be extended by a written agreement between the purchaser of the property at a judicial sale of the class described in § 21-52-1, and any redemptioner, provided such agreement is in writing, signed and acknowledged by the purchaser at such sale and recorded in the office of the register of deeds where the certificate of sale was recorded, within one year from the date of sale, or within such further period as may be provided by §§ 21-52-13, 21-52-22 and 21-52-23. When the time for redemption is extended by written contract as herein provided, it shall be extended in favor of all redemptioners whether they are parties to such agreement or not.
Source: SL 1949, ch 142, § 5; SDC Supp 1960, § 37.5605.
21-52-13. Extension of redemption period by payment of amounts then due--Certificate of payment--Recording.
If at or prior to the expiration of one year from the date of sale, any redemptioner shall make all of the following payments:
(1) All taxes due on the land and any other sums paid by the purchaser to protect his interest in the property including the payment of insurance premiums, installments of principal or interest upon a superior lien, together with interest at the legal rate from the date of the payment of any of such sums;
(2) All interest due on the mortgage or judgment at the date of sale;
(3) Interest upon the principal of the mortgage, or the amount of the judgment, for one year from the date of sale and in addition for one year in advance, at the legal rate in the case of a judgment, and at the rate originally provided for in the mortgage before maturity in case of mortgages;
(4) All costs of foreclosure, if made by advertisement, and all costs of sale if made on general or special execution;
then the time of redemption shall be extended for an additional one year from the expiration date of the initial one-year redemption period, and such extension shall operate in favor of all redemptioners.
Such payment shall be evidenced by the certificate of the sheriff or holder of the certificate of sale, duly acknowledged, which shall be recorded in the office of the register of deeds where the certificate of sale was recorded, and such certificate, or the record thereof, or a certified copy of the record, shall be conclusive proof of such payment.
Source: SL 1949, ch 142, § 6; SDC Supp 1960, § 37.5606; SL 1981, ch 171.
21-52-14. Amounts required for redemption from sale--Superior lien of purchaser included.
Any redemptioner may redeem from the purchaser at any sale described in § 21-52-1, by paying to the sheriff or other person appointed by a court to make the sale, the amount of the purchase price, plus any sums paid by the purchaser to protect his interest in such property for taxes, insurance, installments of principal or interest upon a superior lien, with interest at the legal rate as specified in § 54-3-5.1 from date of sale upon the purchase price of the property, and from the date of the payment of any sum paid for taxes, insurance or installments of principal or interest on a prior lien. If the purchaser is the holder of a lien upon real property other than that under which sale was made, which is superior to the lien of the redemptioner, the redemptioner shall likewise pay the amount of the additional lien, including interest to the date of payment.
Source: SL 1949, ch 142, § 9; SDC Supp 1960, § 37.5609; SL 1983, ch 173.
21-52-15. Expenses of annual assessment work on mining claims included in redemption price--Time of performing annual labor.
In all redemptions from sales of unpatented mining claims under execution or mortgage foreclosure, there shall be added to the total amount otherwise required to redeem such sum or sums, if any, as may be necessarily and actually expended by the purchaser or redemptioner, after such sale and before the redemption, in performing or completing the annual assessment work, not exceeding one hundred dollars for any one claim sold.
This section shall not apply to claim or claims on which the owner or redemptioner shall himself have performed the necessary annual labor during the period above specified. It shall not be deemed necessary under this section for the purchaser to perform the annual labor on such claims until after the first day of November of each year.
Source: SL 1949, ch 142, § 17; SDC Supp 1960, § 37.5617.
21-52-16. Notice of redemption served on purchaser or sheriff--Contents--Payment--Recording of notice.
A redemptioner must serve upon the purchaser from whom he seeks to redeem, or upon his successor in interest, and upon the sheriff or officer making the sale, or his successor, a written notice of redemption, and
(1) If he redeem as holder of a judgment, a copy of the judgment upon which he claims the right to redeem, certified by the clerk of courts of the county where docketed; or
(2) If he redeem as holder of a mortgage or other lien, a copy of the record thereof certified by the register of deeds, together with a certified copy of any assignment necessary to establish his claim, and an affidavit by himself or his agent, showing the amount then actually due on the lien;
and at the same time shall pay to the sheriff or other officer or the purchaser direct, or their respective successors or assigns, the amount prescribed by § 21-52-14. A duplicate of the notice of redemption with proof of the required service shall be forthwith filed for record with the register of deeds of the county in which the foreclosure or judicial sale is pending, which officer shall record the same.
Source: SL 1949, ch 142, § 10; Supreme Court Rule, Order No. 2, 1956; SDC Supp 1960, § 37.5610.
21-52-17. Proof of interest not required of party of record.
No person named as a mortgagor in any mortgage, or as judgment debtor in any judgment of foreclosure of a lien, or in any general or special execution, need serve upon the officer or person from whom he seeks to redeem, any proof of his interest in the real property to be redeemed.
Source: SL 1949, ch 142, § 8; SDC Supp 1960, § 37.5608 (1).
21-52-18. Proof of interest required of successor in interest.
The successor in interest of any person described in § 21-52-17 must serve upon the officer or person from whom he seeks to redeem proof of his interest in such real property.
Source: SL 1949, ch 142, § 8; SDC Supp 1960, § 37.5608 (2).
21-52-19. Successive redemptions by junior lien holders.
In like manner holders of junior liens may redeem from a prior redemptioner, making payments required in § 21-52-14, and paying, in addition, the amounts of any liens senior to their own, on which successive prior redemptions have been made, including any sums advanced for taxes, insurance, and installments of principal or interest, by such senior redemptioner, if he shall have filed in the office of the register of deeds an affidavit setting forth the amounts of such advances for principal and interest, taxes and insurance. Redemptioners need not redeem in the order of priority of their liens.
Source: SL 1949, ch 142, § 11; SDC Supp 1960, § 37.5611.
21-52-20. Amounts payable to junior lien holders.
No person shall be required to pay the amount of a lien junior to his own, but he shall pay to the holder of any junior lien who has made redemption the amount paid by him to make redemption, interest thereon, and any sums advanced by such junior lien holder for the protection of such real property for taxes, insurance, or installments of interest or principal on a prior lien.
Source: SL 1949, ch 142, § 11; SDC Supp 1960, § 37.5611.
21-52-21. Amounts payable on partial redemptions.
If there has been a partial redemption as provided by § 21-52-13, redemptioners are not required to pay to the owner, mortgagor, or judgment creditor any sum paid by him on such partial redemption; but they are required to pay such sum to any other redemptioner, who shall have a partial redemption.
Source: SL 1949, ch 142, § 11; SDC Supp 1960, § 37.5611.
21-52-22. Successive extensions of time on successive redemptions.
If a redemption be made less than sixty days before the right, or extended right, of redemption expires, all holders of liens junior to that under which redemption is made have sixty days from such redemption in which to redeem, even after the expiration of the full period of redemption; and the property may, as often as any party having the right to redeem is disposed, be redeemed within sixty days after the last preceding redemption. The right of redemption given by this section need not be exercised in the order of priority of liens, but may be exercised by any person having the right to redeem.
Source: SL 1949, ch 142, § 12; SDC Supp 1960, § 37.5612 (2).
21-52-23. Time allowed for exercise of owner's final right of redemption.
After the expiration of sixty days from any redemption made under § 21-52-22, the owner may exercise his final right of redemption within fifteen days as prescribed in § 21-52-7.
Source: SL 1949, ch 142, § 12; SDC Supp 1960, § 37.5612 (3).
21-52-24. Effect of sale terminated on final redemption by owner.
Where there has been full and final redemption by the owner, effect of the sale is terminated, except in case of redemption by cotenants.
Source: SL 1949, ch 142, § 7; SDC Supp 1960, § 37.5607 (2).
21-52-25. Certificate of redemption issued by sheriff--Contents of certificate--Statement of amount required for further redemption.
Upon making each redemption the sheriff shall execute to the person making the redemption a certificate setting forth the fact of such redemption, the amount paid by the redemptioner, including the debt for which the property was sold and any subsequent liens which the redemptioner was required under the terms of this chapter to pay, together with interest thereon, and the amounts of principal and interest, insurance, and taxes paid as required by this chapter, which certificate shall include a specific statement of the whole amount required to be paid on redemption from such redemptioner.
Source: SL 1949, ch 142, § 13; SDC Supp 1960, § 37.5613 (1).
21-52-26. Certificate of final redemption.
If the debtor, his grantee, or successor in interest redeem, the sheriff must execute and deliver to him a certificate of redemption duly acknowledged, reciting the fact of such redemption.
Source: SL 1949, ch 142, § 13; SDC Supp 1960, § 37.5613 (2).
21-52-27. Recording of certificates of redemption.
Any such certificate of redemption must be recorded in the office of the register of deeds of the county in which the property or part thereof is situated.
Source: SL 1949, ch 142, § 13; SDC Supp 1960, § 37.5613 (3).
21-52-28. Redemption by cotenant--Other cotenants obligated to contribute.
When title to real property subject to redemption is held by cotenants one or more of such cotenants may redeem, by paying the whole sum required to effect redemption. When redemption is made by one or more cotenants, all other cotenants of the property become obligated to contribute their proportionate shares of the sum paid by the redeeming cotenants, to effect redemption.
Source: SL 1949, ch 142, § 14; SDC Supp 1960, § 37.5614 (1).
21-52-29. Service of notice and demand by cotenant making redemption--Notice of foreclosure by failure to contribute.
Cotenants making redemption shall forthwith serve upon all other cotenants notice of the fact of such redemption together with a statement of the whole amount paid to redeem and the proportionate amount each cotenant is required to pay to contribute his full share of the funds required to effect redemption, which notice shall contain a demand that such cotenant within sixty days from service of notice or within the remainder of the year of redemption, whichever is longer, pay the amount of their proportionate shares of such redemption to the cotenant who has made redemption, and a further notice that if they shall fail so to do, they shall, at the expiration of sixty days or the remainder of the year of redemption, whichever is longer, be foreclosed of all right to or interest in the common property, and the cotenant making redemption shall, as against all cotenants failing to contribute, be entitled at the expiration of such period to a sheriff's deed to the common property.
Source: SL 1949, ch 142, § 14; SDC Supp 1960, § 37.5614 (1).
21-52-30. Recording and service of notice by cotenant making redemption--Constructive notice.
The cotenant serving the notice required in § 21-52-29 shall forthwith record the same, with proof of service thereof, in the office of the register of deeds in the county where the judicial sale or foreclosure was made. Such notice shall be served in like manner as a summons in a civil action is served. From the date of recording such notice, all persons shall be presumed to have notice of the fact of such redemption by one or more joint owners.
Source: SL 1949, ch 142, § 14; SDC Supp 1960, § 37.5614 (2).
21-52-31. Delivery and recording of certificate to cotenant making contribution.
Whenever a cotenant, pursuant to the notice mentioned in § 21-52-29, shall have paid his proportionate share pursuant to such notice, the cotenant receiving such payment shall deliver to the cotenant making such payment a certificate reciting the fact of such payment and shall record a duplicate thereof in the office of the register of deeds of the county in which the foreclosure or judicial sale was made.
Source: SL 1949, ch 142, § 14; SDC Supp 1960, § 37.5614 (3).
21-52-32. Restoration of estate to cotenant making contribution.
A cotenant paying his proportionate share terminates as to his interest in the property the effect of the sale and he stands restored to his estate in the property sold.
Source: SL 1949, ch 142, § 14; SDC Supp 1960, § 37.5614 (4).
21-53-1
Liens subject to foreclosure--Jurisdiction and venue of action.
21-53-2
Description of lien in judgment--Directions for sale of property.
21-53-3
Provisions in judgment for payment and safekeeping of surplus.
21-53-4
Remedy cumulative as to other remedies.
21-53-1. Liens subject to foreclosure--Jurisdiction and venue of action.
An action to foreclose a lien on personal property may be maintained by any person having a lien thereon by common law, statute, or contract. The action may be maintained in any court which would have jurisdiction of the amount secured by the lien, and in the county where the personal property or some part thereof is located, or in the county of the residence of the owner of such property.
Source: CCivP 1877, §§ 674, 675; CL 1887, §§ 5496, 5497; RCCivP 1903, §§ 743, 744; RC 1919, §§ 2919, 2920; SDC 1939 & Supp 1960, § 37.3301.
21-53-2. Description of lien in judgment--Directions for sale of property.
A judgment in favor of the plaintiff must specify the amount and nature of the lien and direct a sale of the property, or sufficient thereof if the same is divisible conveniently, to satisfy the judgment and costs. It shall direct sale by the sheriff or other proper officer of the court in like manner as when the sheriff sells property under execution, and the application by him of the proceeds of the sale, less his fees and expenses, to the payment of the judgment and costs.
Source: CCivP 1877, § 674; CL 1887, § 5496; RCCivP 1903, § 743; RC 1919, § 2919; SDC 1939 & Supp 1960, § 37.3301.
21-53-3. Provisions in judgment for payment and safekeeping of surplus.
The judgment must also provide for the payment of any surplus to the owner of the property, or other person shown to be legally entitled thereto, and for the safekeeping of such surplus, until it is claimed by and paid to the person entitled thereto.
Source: CCivP 1877, § 674; CL 1887, § 5496; RCCivP 1903, § 743; RC 1919, § 2919; SDC 1939 & Supp 1960, § 37.3301.
21-53-4. Remedy cumulative as to other remedies.
This remedy shall be cumulative to any other existing right or remedy to foreclose or enforce a lien on personal property.
Source: CCivP 1877, § 675; CL 1887, § 5497; RCCivP 1903, § 744; RC 1919, § 2920; SDC 1939 & Supp 1960, § 37.3301.
CHAPTER 21-54
FORECLOSURE OF PERSONAL PROPERTY LIENS AND PLEDGES BY ADVERTISEMENT
21-54-1 Remedy available where no other summary procedure provided.
21-54-2 Pledges foreclosed in manner prescribed by contract--Chapter applicable if procedure not prescribed.
21-54-3 Owner's affidavit of defense to summary foreclosure--Injunction requiring foreclosure by action--Costs taxed if defense not established.
21-54-4 Affidavit of lien recorded if lien not previously recorded.
21-54-5 Notice of sale issued--Contents.
21-54-6 Service of notice of sale--Mailing, publication and posting.
21-54-7 Place of sale--Notice of public access.
21-54-8 Time of sale--Adjournment to following day.
21-54-9 Sale of property in parts--Order of sale--Termination when sufficient amount raised.
21-54-10 Sale at auction to highest bidder--Purchase by lien holder.
21-54-11 Purchaser's title absolute and beyond redemption--Certificate or bill of sale--Evidence sufficient for registration of title.
21-54-12 Surplus paid to owner or clerk of courts.
21-54-13 Civil action for deficiency.
21-54-14 Report of proceedings--Contents and time of filing.
21-54-15 Abandoned mobile or manufactured home--Sale or disposal by real property owner--Notice to home owner--Promulgation of rules.
21-54-16 Notice to county treasurer of intent to sell or dispose--Promulgation of rules.
21-54-17 Disposition of abandoned mobile home or manufactured home that fails to sell--Abandoned title.
21-54-17.1 Disposal in lieu of sale--Abandoned title required.
21-54-18 Permit to move abandoned mobile home or manufactured home--Promulgation of rules.
21-54-19 Abatement of taxes owed on abandoned mobile home or manufactured home.
21-54-20 Voluntary transfer of title to mobile home or manufactured home to real property owner for disposal--Affidavit--Permit--Surrender of title to county treasurer.
21-54-21 Abatement of taxes on mobile home or manufactured home upon filing of affidavit and surrender of title.
21-54-1. Remedy available where no other summary procedure provided.
In all cases where no other procedure is provided for summary foreclosure of any personal property lien, or pledge, the same may be foreclosed as hereinafter provided in this chapter.
Source: SDC 1939 & Supp 1960, § 37.3401.
21-54-2. Pledges foreclosed in manner prescribed by contract--Chapter applicable if procedure not prescribed.
Pledges may be foreclosed in the manner prescribed in the contract of pledge; or if no manner is prescribed, or the manner prescribed is insufficient, the provisions of this chapter shall apply so far as consistent with the contract of pledge and the law of this state.
Source: SDC 1939 & Supp 1960, § 37.3409.
21-54-3. Owner's affidavit of defense to summary foreclosure--Injunction requiring foreclosure by action--Costs taxed if defense not established.
In all cases where foreclosure of any personal property lien except conditional sales contracts has been commenced by summary proceedings, the property owner or any person claiming right of possession or any other encumbrancer, may at any time before the sale of the property under such summary proceedings present to the circuit judge and file in the office of the clerk of courts for any county where such summary proceeding is pending, an affidavit stating that he has a defense to such foreclosure and desires to have the same conducted by court procedure. Thereupon the circuit judge shall issue an injunctional order directed to the lien holder and any agent conducting the proceeding, enjoining further summary procedure and requiring foreclosure of the lien in court. The order may be enforced the same as any other injunction of the court. If the defense shall not be established the costs incurred in the summary proceedings may be taxed as additional costs in the court proceeding against the party asserting the defense.
Source: SDC 1939 & Supp 1960, § 37.3410.
21-54-4. Affidavit of lien recorded if lien not previously recorded.
If any lien or pledge sought to be foreclosed under this chapter is not duly on file or of record in the office of the register of deeds of the county in which the foreclosure is to be conducted, the person desiring to foreclose such lien must first file in the office of such register of deeds a sworn statement of the lien as required in Title 44 for giving notice of lien claims.
Source: SDC 1939 & Supp 1960, § 37.3402.
21-54-5. Notice of sale issued--Contents.
The person desiring to foreclose such lien, shall issue a notice of sale, signed by himself, agent, or attorney, and stating:
(1) The names and addresses of the owner of the property and of all lien claimants, as shown by the files of the register of deeds of the county where the foreclosure is to be conducted and also those otherwise known to the lien claimant;
(2) A description of the property sufficient for identification of it;
(3) The location of the property;
(4) Statement of the grounds on which the lien is claimed, and reference to its filing in the office of register of deeds;
(5) The nature of the default under which foreclosure is sought;
(6) The amount claimed to be due at the date of the notice;
(7) The time and place of sale.
Source: Supreme Court Rule 593, 1939; SDC 1939 & Supp 1960, § 37.3405.
21-54-6. Service of notice of sale--Mailing, publication and posting.
Notice of the sale shall be given by mailing copies of the same to the property owner and all other lien claimants at their addresses as shown by the notice of sale and by publishing such notice for at least one issue in a legal newspaper published in the county nearest the place of sale, or if no such newspaper is published in the county, by mailing and posting one copy of the notice on the bulletin board at the front door of the courthouse, or if there be no courthouse, at the place where circuit court was last held in the county, all to be done at least ten days before the date fixed for the sale.
Source: SL 1929, ch 174; SDC 1939 & Supp 1960, § 37.3406.
21-54-7. Place of sale--Notice of public access.
Foreclosures under this chapter may be held at any public place in any of the municipalities or villages of the county in which the foreclosure is to be held, but in case of heavy or bulky articles or materials which cannot be conveniently or practicably moved, the sale may be held where they are located provided the public is afforded free right of access for inspection and bidding. In such cases notice of all such facts and definite description of the place, and reason for holding the sale there and of the public's right of access must be stated in the notice of sale.
Source: SDC 1939 & Supp 1960, § 37.3404; SL 1992, ch 60, § 2.
21-54-8. Time of sale--Adjournment to following day.
Any foreclosure sale under this chapter may be held on any day of the week except Sunday or other legal holiday and shall be held between the hours of ten o'clock in the forenoon and five o'clock in the afternoon, except that when a sale has been commenced and cannot be completed by five o'clock it may be continued for another hour on the same day and if not then completed, adjourned until ten o'clock on the following day, and so continuing until completed.
Source: SDC 1939 & Supp 1960, § 37.3403.
21-54-9. Sale of property in parts--Order of sale--Termination when sufficient amount raised.
If the property is conveniently and practicably divisible, the owner or any other lien holder may require it to be sold in parts and direct the order of such sale. In such cases the owner shall have the preference right to direct the order of sale, and the other lien holders shall have such preference in order of their respective priorities, if those preceding shall have failed to exercise such right.
If it is sold in parts, no more of the property shall be sold than is necessary to satisfy the lien and the costs and expenses of the proceedings.
Source: SDC 1939 & Supp 1960, § 37.3407.
21-54-10. Sale at auction to highest bidder--Purchase by lien holder.
The sale shall be made at public auction to the highest bidder for cash. The lien holder may bid and purchase and have the amount of his bid credited on his lien.
Source: SDC 1939 & Supp 1960, § 37.3407.
21-54-11. Purchaser's title absolute and beyond redemption--Certificate or bill of sale--Evidence sufficient for registration of title.
The title of a purchaser at any such sale shall be absolute and beyond redemption and it may be evidenced by a certificate or bill of sale from the party making the sale or from the report of sale as filed, and the report of sale shall be prima facie evidence of its contents. In the case of motor vehicles or other articles of which public registry of title is required by law, any such evidence of conveyance shall be sufficient to require registration of such vehicles or articles and for the issue of new title or other certificate accordingly.
Source: SDC 1939 & Supp 1960, § 37.3408.
21-54-12. Surplus paid to owner or clerk of courts.
If there be any surplus it may be paid direct to the person entitled thereto and his receipt taken and filed with the report, or it may be paid into the office of the clerk of courts of the county for the benefit of the persons entitled thereto and receipt of such clerk taken and filed with the report of the sale.
Source: SDC 1939 & Supp 1960, § 37.3408.
21-54-13. Civil action for deficiency.
If there be any deficiency, the lien claimant may recover therefor by civil action or otherwise as his rights may appear.
Source: SDC 1939 & Supp 1960, § 37.3408.
21-54-14. Report of proceedings--Contents and time of filing.
The lien holder, or his agent, or attorney duly authorized shall make a sworn report of the proceedings showing:
(1) Proof by affidavits of giving notice of the sale as required by this chapter, including a copy of the notice;
(2) An account of the sale, showing the items sold, amounts bid and paid, and, names and addresses of the purchasers;
(3) The amount due on the lien, together with the costs and disbursements of the sale and the surplus or deficiency remaining, if any.
The report of the sale shall be filed in the office of the register of deeds of the county within five days after the sale.
Source: SDC 1939 & Supp 1960, § 37.3408.
21-54-15. Abandoned mobile or manufactured home--Sale or disposal by real property owner--Notice to home owner--Promulgation of rules.
If a mobile home or manufactured home as defined in chapter 32-7A has been abandoned and left on leased real property, the owner of real property may sell or dispose of the mobile home or manufactured home under the provisions of this chapter. A mobile home or manufactured home is considered abandoned if the owner of the home has not removed the home from the real property owner's land within thirty days of the court issuing a writ of possession as provided in chapter 21-16. Upon issuance of the writ of possession by the court, the owner of real property shall send the owner of the mobile home or manufactured home and any lienholder with a lien properly noted pursuant to chapter 32-3, written notice of intent to sell or dispose of the home pursuant to this chapter if the home is not removed from the real property owner's property within thirty days. The notice must be sent to the last known address of the owner of the mobile home or manufactured home. The Department of Revenue shall promulgate rules pursuant to chapter 1-26 to prescribe a form for the written notice. Any written notice shall be sent by certified mail. Any sale is subject to any taxes owed on the home and unpaid lot rent but such unpaid lot rent lien may not exceed two month's lot rent at the price previously agreed to by the owner of real property and owner of the mobile home or manufactured home.
Source: SL 2007, ch 140, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2023, ch 66, § 1.
21-54-16. Notice to county treasurer of intent to sell or dispose--Promulgation of rules.
After the owner of the abandoned mobile home or manufactured home has been provided thirty days' written notice, and before the owner of real property proceeds with the sale or disposal of the abandoned mobile home or manufactured home, the owner of the real property shall provide written notice of intent to sell or dispose of the abandoned property to the county treasurer where the home is located. The Department of Revenue shall promulgate rules pursuant to chapter 1-26 to prescribe a form for the written notice. If the treasurer has not issued a distress warrant and informed the owner and any lien holder of real property of such issuance within thirty days of the notice required by this section, or the mobile home or manufactured home has not been removed by its owner or any lien holder within thirty days of the notice provided by § 21-54-15, the owner of real property may proceed with the sale or disposal pursuant to this chapter.
Source: SL 2007, ch 140, § 2; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2023, ch 66, § 2.
21-54-17. Disposition of abandoned mobile home or manufactured home that fails to sell--Abandoned title.
If an abandoned mobile home or manufactured home fails to sell at a sale held pursuant to this chapter, title to the mobile home or manufactured home is irrevocably vested with the owner of the real property. The owner of the real property on which the mobile home or manufactured home resides, may obtain an abandoned title without payment or obligation to pay any taxes owed on the home or any lien on the home at the time of acquisition. However, if the owner of the real property intends any use of the abandoned mobile home or manufactured home other than disposal, the owner of the real property may obtain an abandoned title after paying any taxes owed on the home. The department shall promulgate rules pursuant to chapter 1-26 to prescribe a form that shall be used to apply for the abandoned title.
Source: SL 2007, ch 140, § 3.
21-54-17.1. Disposal in lieu of sale--Abandoned title required.
If the owner of the real property intends to dispose of the mobile home or manufactured home in lieu of sale, the owner of the real property must first obtain an abandoned title after paying any taxes owed on the home.
Source: SL 2023, ch 66, § 3.
21-54-18. Permit to move abandoned mobile home or manufactured home--Promulgation of rules.
If an owner of the real property obtains a title to a mobile home or manufactured home pursuant to § 21-54-17, the owner of the real property shall obtain a permit pursuant to § 32-5-16.3 to move the abandoned mobile home or manufactured home. If the owner of the real property obtains a title to a mobile home or manufactured home pursuant to § 21-54-17 and files an affidavit with the county treasurer stating that the owner is going to move the abandoned mobile home or manufactured home for the sole purpose of disposal, the county treasurer shall issue the permit provided by § 32-5-16.3 without receiving payment of the current year's taxes. If the owner of the real property obtains a title to a mobile home or manufactured home pursuant to § 21-54-17.1, the county treasurer shall issue the permit provided by § 32-5-16.3. The Department of Revenue shall promulgate rules pursuant to chapter 1-26 to prescribe a form for the affidavit.
Source: SL 2007, ch 140, § 4; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2023, ch 66, § 4.
21-54-19. Abatement of taxes owed on abandoned mobile home or manufactured home.
The county treasurer shall deliver the affidavit filed pursuant to § 21-54-18 to the board of county commissioners after issuance of the permit. Upon receipt of the affidavit, the board of county commissioners shall abate any taxes owed on the mobile home or manufactured home.
Source: SL 2007, ch 140, § 5.
21-54-20. Voluntary transfer of title to mobile home or manufactured home to real property owner for disposal--Affidavit--Permit--Surrender of title to county treasurer.
An owner of an unencumbered, except for taxes owed, mobile home or manufactured home may voluntarily transfer title of the mobile home or manufactured home, for the sole purpose of disposal, to the owner of the real property upon which the mobile home or manufactured home is located. The treasurer shall issue a title to the owner of the real property on which the mobile home or manufactured home is located, without payment or obligation to pay any taxes owed on the home at the time of acquisition.
Prior to disposal, the owner of the real property shall submit an affidavit for disposal of the mobile home or manufactured home, and the properly endorsed title, to the county treasurer verifying that title was transferred for disposal purposes only and that no consideration was exchanged.
If the owner of the real property is moving the mobile home or manufactured home as part of the disposal process, the county treasurer shall issue the permit provided by § 32-5-16.3 to move the mobile home or manufactured home for disposal purposes without receiving payment of taxes owed on the mobile home or manufactured home.
The owner of the real property has ninety days from the date of the affidavit to dispose of the mobile home or manufactured home and to surrender the title to the county treasurer. The county treasurer may allow an additional sixty days for disposal upon request by the owner of the mobile home or manufactured home upon good cause shown for such additional days. If the title is not timely surrendered to the county treasurer, the owner of the real property is liable for all taxes owed on the mobile home or manufactured home.
The Department of Revenue shall prescribe the form for the affidavit required by this section.
Source: SL 2015, ch 125, § 1.
21-54-21. Abatement of taxes on mobile home or manufactured home upon filing of affidavit and surrender of title.
The county treasurer shall deliver the affidavit filed pursuant to § 21-54-20 to the board of county commissioners after issuance of the permit. Upon receipt of the affidavit, the board of county commissioners shall abate any taxes owed on the mobile home or manufactured home pursuant to the provisions of § 21-54-19. However, if the owner of the real property failed to timely surrender the title to the county treasurer, the board may not abate any taxes owed on the mobile home or manufactured home.
Source: SL 2015, ch 125, § 2.
21-55-1
Action or damages for conception or birth prohibited--"Conception" defined.
21-55-2
Action or damages for birth of another prohibited.
21-55-3
Consideration of failure to prevent live birth restricted in actions.
21-55-4
Limited effect of chapter.
21-55-1. Action or damages for conception or birth prohibited--"Conception" defined.
There shall be no cause of action or award of damages on behalf of any person based on the claim of that person that, but for the conduct of another, he would not have been conceived or, once conceived, would not have been permitted to have been born alive. The term "conception," as used in this section, means the fertilization of a human ovum by a human sperm, which occurs when the sperm has penetrated the cell membrane of the ovum.
Source: SL 1981, ch 172, § 1.
21-55-2. Action or damages for birth of another prohibited.
There shall be no cause of action or award of damages on behalf of any person based on the claim that, but for the conduct of another, a person would not have been permitted to have been born alive.
Source: SL 1981, ch 172, § 2.
21-55-3. Consideration of failure to prevent live birth restricted in actions.
The failure or the refusal of any person to prevent the live birth of a person may not be considered in awarding damages or in imposing a penalty in any action. The failure or the refusal of any person to prevent the live birth of a person is not a defense in any action.
Source: SL 1981, ch 172, § 3.
21-55-4. Limited effect of chapter.
The provisions of this chapter do not prohibit a cause of action or the awarding of damages, except as specifically provided in this chapter, by or on behalf of any person based on the claim that a person is liable for injury caused by such person's willful acts or caused by such person's want of ordinary care or skill.
Source: SL 1981, ch 172, § 4.
21-56-1 Time and place of hearing--Fixing by judge or clerk.
21-56-1. Time and place of hearing--Fixing by judge or clerk.
Wherever a provision is made in this title for the fixing of a time and place of hearing or the issuance of a notice, a judge or clerk of courts may fix the time and place for the hearing. The notice may be signed by the judge, the clerk of courts, or the attorney for the petitioner.
Source: SL 1982, ch 174, § 1; SL 2006, ch 243, § 8.
21-57-1
Liability for dishonored checks, drafts, or orders--Minimum and maximum amounts--Court costs and interest--Satisfaction.
21-57-2
Final judgment required before liability asserted.
21-57-3
No liability in certain circumstances.
21-57-4
Notice of dishonor--Writing--Service.
21-57-5
Notice of dishonor--Information required.
21-57-6
Instruments and actions for recovery may be combined--Venue.
21-57-7
Criminal prosecution not precluded.
21-57-1. Liability for dishonored checks, drafts, or orders--Minimum and maximum amounts--Court costs and interest--Satisfaction.
In any civil action brought for the purpose of collecting a check, draft, or order of payment, any person who makes, draws, or issues any check, draft, or order of payment that is dishonored and is not paid within thirty days after mailing of a notice of dishonor sent in compliance with §§ 21-57-4 and 21-57-5 is liable to the holder or assignee for collection for an amount equal to three times the face amount of the check. However, in no case, including any combination pursuant to § 21-57-6, may the liability for damages be less than one hundred dollars nor greater than two hundred dollars. The maker, drawer, or issuer is also liable to the holder or assignee for allowable court costs, filing fees, and interest computed at the legal rate from the date of the check, draft, or order that payment was issued. Subsequent to the commencement of an action as provided for in this section, but prior to the court hearing, the maker, drawer, or issuer may tender to the holder or assignee, as satisfaction of the claim, an amount of money equal to the face amount of the check together with the returned check fee as provided for under § 57A-3-421 together with accrued interest and incurred court costs.
Source: SL 1999, ch 112, § 1.
21-57-2. Final judgment required before liability asserted.
No holder or assignee for collection may assert that any maker, drawer, or issuer has any liability pursuant to § 21-57-1 unless such liability has been determined by entry of a final judgment by a court of competent jurisdiction.
Source: SL 1999, ch 112, § 2.
21-57-3. No liability in certain circumstances.
The maker, drawer, or issuer is not liable for the damages and costs specified in § 21-57-1 if:
(1) The account contained sufficient funds or credit to cover the check, draft, or order at the time the check, draft, or order was issued, plus all other checks, drafts, and orders on the account then outstanding and unpaid; or
(2) The check, draft, or order was not paid because a paycheck, deposited in the account in an amount sufficient to cover the check, draft, or order, was not paid upon presentation; or
(3) Funds sufficient to cover the check, draft, or order were garnished, attached, or setoff and the maker, drawer, or issuer had no notice of such garnishment, attachment, or setoff at the time the check, draft, or order was issued; or
(4) The maker of the check, draft, or order was not competent or of full age to enter into a legal contractual obligation at the time the check, draft, or order was issued; or
(5) The making of the check, draft, or order was induced by fraud or duress; or
(6) The transaction which gave rise to the obligation for which the check, draft, or order was given lacked consideration or was illegal.
Source: SL 1999, ch 112, § 3.
21-57-4. Notice of dishonor--Writing--Service.
Notice that a check, draft, or order has not been paid upon presentment shall be in writing and given in person and receipted for, or by personal service, or by depositing the notice by certified mail, return receipt requested and postage prepaid, in the United States mail and addressed to such person at the address shown on the check or at the most recent address known to the sender. If the notice is mailed and not returned as undeliverable by the United States Postal Service, notice shall be conclusively presumed to have been given on the date of mailing. For the purposes of this section, the term, undeliverable, does not include unclaimed or refused.
Source: SL 1999, ch 112, § 4.
21-57-5. Notice of dishonor--Information required.
The notice given pursuant to § 21-57-4 shall include the following information regarding the unpaid check, draft, or order:
(1) The date the check, draft, or order was issued;
(2) The name of the bank, depository, person, firm, or corporation on which it was drawn;
(3) The name of the payee;
(4) The face amount;
(5) A statement of total amount claimed, which shall be itemized and may not exceed the amount permitted pursuant to 21-57-1;
(6) A statement that the maker has thirty days from the date notice was given to make payment in full of the total amount claimed; and
(7) A statement that, if the total amount is not paid within thirty days after the date notice was given, the maker is liable in a civil action for three times the face amount of the check but not less than one hundred dollars nor greater than two hundred dollars and that, in such civil action, the court may award court costs to the payee, holder, or assignee for collection.
Source: SL 1999, ch 112, § 5.
21-57-6. Instruments and actions for recovery may be combined--Venue.
If the same person is the maker, drawer, or issuer of two or more checks, drafts, or orders, such instruments may be combined. An action for their recovery pursuant to § 21-57-1 may be brought in any county in which one of the dishonored checks, drafts, or orders were issued or in the county in which the check writer resides. A cause of action under this section may be brought in small claims court, if the amount of the demand does not exceed the jurisdiction of that court, or in any other appropriate court.
Source: SL 1999, ch 112, § 6.
21-57-7. Criminal prosecution not precluded.
Nothing in §§ 21-57-1 to 21-57-7, inclusive, prevents the criminal prosecution of the person who makes, draws, or issues a dishonored check, draft, or order.
Source: SL 1999, ch 112, § 7.
21-58-1
Legislative findings as to firearms.
21-58-2
Firearms manufacturers, distributors, and sellers not liable for injury caused by
firearms.
21-58-3
Associations of licensed firearms importers, manufacturers, or dealers not liable for
injury caused by firearms.
21-58-4
No limitation on liability for certain actions--Firearm's potential to cause injury not
a defective condition.
21-58-1. Legislative findings as to firearms.
The Legislature finds that the unlawful use of firearms, rather than their lawful manufacture, distribution, or sale, is the proximate cause of any injury arising from their unlawful use.
Source: SL 1999, ch 116, § 1.
21-58-2. Firearms manufacturers, distributors, and sellers not liable for injury caused by firearms.
No firearm manufacturer, distributor, or seller who lawfully manufactures, distributes, or sells a firearm is liable to any person or entity, or to the estate, successors, or survivors of either, for any injury suffered, including wrongful death and property damage, because of the use of such firearm by another.
Source: SL 1999, ch 116, § 2.
21-58-3. Associations of licensed firearms importers, manufacturers, or dealers not liable for injury caused by firearms.
No association of persons who hold licenses under Section 923 of Chapter 44 of Title 18, United States Code, as in effect on January 1, 1999, is liable to any person or entity, or to the estate, successors, or survivors of either, for any injury suffered, including wrongful death and property damage, because of the use of a firearm sold or manufactured by any licensee who is a member of such association.
Source: SL 1999, ch 116, § 3.
21-58-4. No limitation on liability for certain actions--Firearm's potential to cause injury not a defective condition.
The provisions of §§ 21-58-1 to 21-58-4, inclusive, do not apply to actions for deceit, breach of contract, or expressed or implied warranties, or for injuries resulting from failure of firearms to operate in a normal or usual manner due to defects or negligence in design or manufacture. The provisions of §§ 21-58-1 to 21-58-4, inclusive, do not apply to actions arising from the unlawful sale or transfer of firearms, or to instances where the transferor knew, or should have known, that the recipient would engage in the unlawful sale or transfer of the firearm, or would use, or purposely allow the use of, the firearm in an unlawful, negligent, or improper fashion.
For purposes of this section, the potential of a firearm to cause serious injury, damage, or death as a result of normal function does not constitute a defective condition of the product. A firearm may not be deemed defective on the basis of its potential to cause serious injury, damage, or death when discharged.
Source: SL 1999, ch 116, § 4.
21-59-1 to 21-59-3. Repealed by SL 2009, ch 112, §§ 1 to 3.
21-60-1
Destruction of field crops, animals, or organisms prohibited--Liability--Exceptions.
21-60-2
Calculation of damages.
21-60-3
Limitation on damages.
21-60-1. Destruction of field crops, animals, or organisms prohibited--Liability--Exceptions.
No person other than the owner may, willfully and knowingly, damage or destroy any field crop, animal, or organism product that is grown for personal or commercial purposes, or for testing or research purposes, in the context of a product development program in conjunction or coordination with a private research facility or a university or any federal, state, or local government agency. Any person who violates this provision is liable for twice the value of the crop, animal, or organism damaged or destroyed. However, this section does not apply to crops, animals, or organism damaged or destroyed by emergency vehicles and personnel acting in a reasonable and prudent manner.
Source: SL 2001, ch 110, § 1.
21-60-2. Calculation of damages.
In awarding damages under this chapter, the court shall consider the market value of the crop, animal, or organism prior to damage or destruction, and production, research, testing, replacement, and development costs directly related to the crop, animal, or organism that has been damaged or destroyed as part of the value.
Source: SL 2001, ch 110, § 2.
21-60-3. Limitation on damages.
Damages available under this chapter are limited to twice the market value of the crop, animal, or organism prior to damage or destruction plus twice the actual damages involving production, research, testing, replacement, and development costs directly related to the crop, animal, or organism that has been damaged or destroyed.
Source: SL 2001, ch 110, § 3.
21-61-1
Definition of terms.
21-61-2
Prohibition on recovery based on claims of weight gain, obesity, or health condition
resulting from long-term consumption of qualified product.
21-61-3
Application of chapter to pending claims.
21-61-4
Short title of chapter.
21-61-1. Definition of terms.
Terms used in this chapter mean:
(1) "Livestock," cattle, bison, swine, sheep, goats, horses, ratites, and captive cervidae;
(2) "Livestock producer," any producer of livestock;
(3) "Long-term consumption," the cumulative effect of the consumption of any qualified product and not the effect of a single instance of consumption;
(4) "Qualified product," any food or drink as defined in section 201(f) of the Federal Food Drug and Cosmetic Act (21 U.S.C. § 321(f)), in effect as of January 1, 2004, and specifically including meat and meat products from livestock;
(5) "Seller," any person or entity lawfully engaged in the business of marketing, distributing, advertising, or selling a qualified product;
(6) "Trade association," any association or business organization that is not operated for profit, if two or more members are manufacturers, marketers, distributors, livestock producers, advertisers, or sellers of a qualified product.
Source: SL 2004, ch 146, § 1.
21-61-2. Prohibition on recovery based on claims of weight gain, obesity, or health condition resulting from long-term consumption of qualified product.
No manufacturer, seller, trade association, livestock producer, or retailer of a qualified product is subject to civil liability for injury or death in any case in which liability is based on the individual's weight gain, obesity, or a health condition related to weight gain or obesity, and the weight gain, obesity, or health condition results from the individual's long-term consumption of a qualified product.
Source: SL 2004, ch 146, § 2.
21-61-3. Application of chapter to pending claims.
Any civil action regarding a claim as set forth in § 21-61-2 that is governed by the laws of South Dakota and that is pending on the date of the enactment of this chapter shall be subject to the terms of this chapter.
Source: SL 2004, ch 146, § 3.
21-61-4. Short title of chapter.
This chapter may be cited as the Commonsense Consumption Act.
Source: SL 2004, ch 146, § 4.
21-62-1
Prisoner defined.
21-62-2
Exhaustion of administrative remedies or grievance procedures.
21-62-3
Actions for mental or emotional injury prohibited.
21-62-4
Dismissal of actions regarding prison conditions.
21-62-5
Application of chapter.
21-62-6
Lack of administrative remedy no basis for action.
21-62-1. Prisoner defined.
For the purposes of this chapter, the term, prisoner, means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for violations of criminal law or the terms of parole, probation, pretrial release, or diversionary program.
Source: SL 2010, ch 112, § 1.
21-62-2. Exhaustion of administrative remedies or grievance procedures.
No civil action may be brought by any prisoner confined to any jail, prison, or other correctional facility until such administrative remedies or grievance procedures as are available are exhausted. Compliance with this section does not toll any applicable statutory notice period or statute of limitations.
Source: SL 2010, ch 112, § 2.
21-62-3. Actions for mental or emotional injury prohibited.
No civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility for mental or emotional injury suffered in custody that is not caused by a physical injury.
Source: SL 2010, ch 112, § 3.
21-62-4. Dismissal of actions regarding prison conditions.
A court shall, on its own motion or on the motion of a party, dismiss any action brought with respect to prison conditions by a prisoner confined to any jail, prison, or other correctional facility if the court determines that the action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks relief from a defendant who is immune from such relief. A court may dismiss an action pursuant to this section without first requiring the exhaustion of administrative remedies.
Source: SL 2010, ch 112, § 4.
21-62-5. Application of chapter.
The provisions of this chapter do not apply to proceedings pursuant to chapter 21-27 or to any civil action that does not arise from the terms or conditions of a prisoner's confinement.
Source: SL 2010, ch 112, § 5.
21-62-6. Lack of administrative remedy no basis for action.
The failure to adopt an administrative remedy or grievance procedure does not constitute the basis for any action or relief.
Source: SL 2010, ch 112, § 6.
21-63-1
Definition of terms.
21-63-2
No product liability beyond useful safe life.
21-63-3
Factors in determining useful safe life.
21-63-4
Express warranty beyond useful safe life.
21-63-5
Time for bringing aviation product liability claim--Indemnity.
21-63-6
Product in compliance with legislative or administrative regulatory safety standards.
21-63-7
Product not in compliance with legislative or administrative regulatory safety
standards.
21-63-8
Product in compliance with mandatory government contract specification.
21-63-9
Product not in compliance with mandatory government contract specification.
21-63-10
Duty to warn or instruct.
21-63-11
Sections 20-9-10 and 20-9-10.1 unaffected.
21-63-12
Evidence of advancements, changes, or subsequent measures.
21-63-1. Definition of terms.
Terms used in this chapter mean:
(1) "Aviation product," any product or component designed, manufactured, fabricated, assembled, produced, or constructed for aviation purposes, including aircraft, parts produced primarily for use in aircraft, aviation navigation aids, aircraft instrumentation, aircraft testing products, aircraft components, aircraft support and maintenance products or components, aircraft materials production, aircraft materials testing, and aircraft safety products;
(2) "Aviation product liability claim," includes any claim or action brought for harm caused by the manufacture, production, making, construction, fabrication, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging, storage, or labeling of the relevant aviation product. The term includes any action based on, strict liability in tort, negligence, breach of express or implied warranty, breach of, or failure to, discharge a duty to warn or instruct, whether negligent or innocent, misrepresentation, concealment, or nondisclosure, whether negligent or innocent, or under any other substantive legal theory;
(3) "Harm," includes damage to property, personal physical injuries, illness, and death, mental anguish or emotional harm attendant to personal physical injuries, illness, or death. The term does not include direct or consequential economic loss;
(4) "Manufacturer," includes an aviation product seller who designs, produces, creates, assembles, installs, makes, fabricates, constructs, or remanufactures the relevant product or component part of an aviation product before its sale to a user or consumer. The term includes a product seller or entity not otherwise a manufacturer that holds itself out as a manufacturer, or that is owned in whole or in part by the manufacturer;
(5) "Product seller," any person or entity that is engaged in the business of selling aviation products, whether the sale is for resale, or for use or consumption. The term includes a manufacturer, wholesaler, distributor, or retailer of the relevant aviation product; and
(6) "Time of delivery," the time of delivery of an aviation product to its first purchaser or lessee who was not engaged in the business of either selling such products or using them as component parts of another product to be sold.
Source: SL 2011, ch 113, § 1.
21-63-2. No product liability beyond useful safe life.
Except as provided in § 21-63-4, no aviation product seller is liable in an aviation product liability claim if the product seller proves by a preponderance of the evidence that the harm was caused after the aviation product's useful safe life had expired. Useful safe life begins at the time of delivery of the aviation product and extends for the time during which the product would normally perform.
Source: SL 2011, ch 113, § 2.
21-63-3. Factors in determining useful safe life.
Factors to be considered in determining whether an aviation product's useful safe life has expired include:
(1) The amount of wear and tear to which the aviation product had been subject;
(2) The effect of deterioration from natural causes and from climate and other conditions under which the aviation product was used or stored;
(3) The normal practices of the user, similar users, and the aviation product seller with respect to the circumstances, frequency, and purposes of the product's use, and with respect to repairs, renewals, and replacements;
(4) Any representations, instructions, or warnings made by the aviation product seller concerning proper maintenance, storage, and use of the product or the expected useful safe life of the product; and
(5) Any modification or alteration of the aviation product by a user or third party.
Source: SL 2011, ch 113, § 3.
21-63-4. Express warranty beyond useful safe life.
An aviation product seller may be subject to liability for harm caused by an aviation product used beyond the product's useful safe life to the extent that the aviation product seller has expressly warranted the aviation product for a longer period.
Source: SL 2011, ch 113, § 4.
21-63-5. Time for bringing aviation product liability claim--Indemnity.
The provisions of § 15-2-12.2 notwithstanding, any claim that involves harm caused more than ten years after the time of delivery is barred regardless of the date the defect or harm is discovered or the disability or minority of the person harmed.
Nothing contained in this section affects the right of any person liable under an aviation product liability claim to seek and obtain indemnity from any other person who is responsible for the harm which gave rise to the aviation product liability claim.
Source: SL 2011, ch 113, § 5.
21-63-6. Product in compliance with legislative or administrative regulatory safety standards.
If the injury-causing aspect of the aviation product was, at the time of manufacture, in compliance with legislative or administrative regulatory safety standards relating to design or performance, the aviation product is deemed not defective by reason of design or performance. If the standard addressed warnings or instructions, the aviation product is deemed not defective by reason of warnings or instructions.
Source: SL 2011, ch 113, § 6.
21-63-7. Product not in compliance with legislative or administrative regulatory safety standards.
If the injury-causing aspect of the aviation product was not, at the time of manufacture, in compliance with legislative or administrative regulatory safety standards relating to design, performance, warnings, or instructions, no presumption exists and the burdens of proof applicable to nonaviation products liability actions apply.
Source: SL 2011, ch 113, § 7.
21-63-8. Product in compliance with mandatory government contract specification.
If the injury-causing aspect of the aviation product was, at the time of manufacture, in compliance with a mandatory government contract specification relating to design, this is an absolute defense and the aviation product is deemed not defective for that reason. If the specification related to warnings or instructions, the aviation product is deemed not defective for that reason.
Source: SL 2011, ch 113, § 8.
21-63-9. Product not in compliance with mandatory government contract specification.
If the injury-causing aspect of the aviation product was not, at the time of manufacture, in compliance with a mandatory government contract specification relating to design, or if the specification related to warnings or instructions that were not in compliance with a mandatory government contract specification relating to warnings or instruction, no presumption exists and the burdens of proof applicable to nonaviation products liability actions apply.
Source: SL 2011, ch 113, § 9.
21-63-10. Duty to warn or instruct.
In any aviation product liability claim, any duty on the part of the aviation product seller to warn or protect against a danger or hazard which could or did arise in the use or misuse of such aviation product and any duty to have properly instructed in the use of such aviation product, does not extend:
(1) To any warning protecting against or instructing with regard to those safeguards, precautions, and actions which a reasonable user or consumer of the aviation product, with the training, experience, education, and any special knowledge the user or consumer did, should, or was required to possess, could and should have taken for such user or consumer or others, under all the facts and circumstances;
(2) To any situation where the safeguards, precautions, and actions could or should have been taken by a reasonable user or consumer of the aviation product similarly situated exercising reasonable care, caution, and procedure; or
(3) To any warnings protecting against or instructing with regard to dangers, hazards, or risks which are patent, open, or obvious and which should have been realized by a reasonable user or consumer of the aviation product.
Source: SL 2011, ch 113, § 10.
21-63-11. Sections 20-9-10 and 20-9-10.1 unaffected.
No provision contained within this chapter abrogates or limits protections afforded aviation product manufacturers, sellers, or assemblers contained in §§ 20-9-10 and 20-9-10.1.
Source: SL 2011, ch 113, § 11.
21-63-12. Evidence of advancements, changes, or subsequent measures.
In an aviation product liability claim, the following evidence is not admissible for any purpose:
(1) Evidence of any advancements or changes in technical or other knowledge or techniques; in design theory or philosophy; in manufacturing or testing knowledge; in techniques or processes in labeling; or warning of risks or hazards; or, in instructions for the use of the aviation product, if the advancements or changes have been made, learned, or placed into common use subsequent to the time the aviation product in issue was designed, formulated, tested, manufactured, or sold by the manufacturer; and
(2) Evidence of any changes made in the designing, planning, formulating, testing, preparing, manufacturing, packaging, warning, labeling, or instructing for use of, or with regard to, the aviation product in issue, or any similar product, which any change was made subsequent to the time the aviation product in issue was designed, formulated, tested, manufactured, or sold by the manufacturer.
This section does not require the exclusion of evidence of a subsequent measure if offered to impeach a witness for the manufacturer or seller of an aviation product who has expressly denied the feasibility of such a measure.
Source: SL 2011, ch 113, § 12.
21-64-1
Definitions.
21-64-2
Use of personality's right of publicity for commercial purpose without consent
prohibited.
21-64-3
Application of chapter.
21-64-4
Termination of personality's right of publicity.
21-64-5
Cause of action for violation of personality's right of publicity.
21-64-6
Permitted uses of personality's right of publicity.
21-64-7
Permitted use of name to truthfully identify personality as author or performer.
21-64-8
Permitted use in connection with broadcast or reporting of event or topic of public
interest.
21-64-9
Permitted use where commercial value results from formal charges or conviction of
crime.
21-64-10
Registration prerequisite to recovery by successor in interest.
21-64-11
Registration of claim of right of publicity by successor in interest--Posting on
secretary of state's website.
21-64-12
Exclusive remedy.
21-64-1. Definitions.
Terms used in this chapter mean:
(1) "Commercial purpose," the use of an aspect of a personality's right of publicity in connection with a product, merchandise, goods, service, or commercial activity; for advertising or soliciting purchases of a product, merchandise, goods, service, or for promoting a commercial activity; or for the purpose of fund-raising;
(2) "Personality," a living or deceased natural person who is a citizen of this state, or who died domiciled in this state whose name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, or mannerism identifies a specific person and has commercial value, whether or not the person uses or authorizes the use of the person's rights of publicity for a commercial purpose that serves to identify a specific person;
(3) "Right of publicity," a personality's property interest in the personality's name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, or mannerism.
Source: SL 2015, ch 126, § 1.
21-64-2. Use of personality's right of publicity for commercial purpose without consent prohibited.
No person may use any aspect of a personality's right of publicity for a commercial purpose during the personality's lifetime or for seventy years after the death of the personality without the express written consent of the personality, or if the personality is deceased without the express written consent of the personality's next of kin or other person or entity that owns the right of publicity.
Source: SL 2015, ch 126, § 2.
21-64-3. Application of chapter.
The provisions of this chapter apply to a personality who is deceased prior to July 1, 2015.
Source: SL 2015, ch 126, § 3.
21-64-4. Termination of personality's right of publicity.
A personality's right of publicity terminates if the personality is deceased and there is no living next of kin of the personality and the personality has not assigned his or her rights.
Source: SL 2015, ch 126, § 4.
21-64-5. Cause of action for violation of personality's right of publicity.
The personality, or if the personality is deceased, the personality's next of kin or other owner of the right of publicity, has a cause of action for a violation of a personality's right of publicity against the person for any violation of § 21-64-2. If the court finds a violation of § 21-64-2, the court may order:
(1) Temporary or permanent injunctive relief;
(2) Damages in the amount of one thousand dollars or the actual damages, including profits derived from the unauthorized use, whichever amount is greater;
(3) In determining a defendant's profits, the plaintiff is required to prove the gross revenue attributable to the unauthorized use, and the defendant is required to prove properly deductible expenses; and
(4) If the court finds that the violation of § 21-64-2 was knowing, willful, or intentional, treble, but not computed on the defendant's profits, or punitive damages, as the plaintiff elects.
Source: SL 2015, ch 126, § 5.
21-64-6. Permitted uses of personality's right of publicity.
The provisions of this chapter do not apply to the use of a personality's name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms in any:
(1) Literary work, theatrical work, musical composition, audio visual work, film, radio, or television program;
(2) Material that has political or newsworthy value;
(3) Original work of fine art;
(4) Promotional material or advertisement, for a news reporting or entertainment medium, that uses all or part of a past edition of the medium's original broadcast and does not convey or suggest that the personality endorses the news reporting or entertainment medium;
(5) An advertisement of commercial announcement for a use described in this section; and
(6) Any use of a right of publicity before December 31, 2014.
Source: SL 2015, ch 126, § 6.
21-64-7. Permitted use of name to truthfully identify personality as author or performer.
The provisions of this chapter do not apply to the use of a personality's name to truthfully identify the personality as the author of a written work or a performer of a recorded performance if the written work or recorded performance is otherwise rightfully reproduced, exhibited, or broadcast.
Source: SL 2015, ch 126, § 7.
21-64-8. Permitted use in connection with broadcast or reporting of event or topic of public interest.
The provisions of this chapter do not apply to the use of a personality's name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, or mannerism in connection with a broadcast or reporting of an event or a topic of general or public interest including unauthorized biographies.
Source: SL 2015, ch 126, § 8.
21-64-9. Permitted use where commercial value results from formal charges or conviction of crime.
The provisions of this chapter do not apply to a personality whose name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, or mannerism has commercial value solely because the personality has been formally charged with or convicted of a crime.
Source: SL 2015, ch 126, § 9.
21-64-10. Registration prerequisite to recovery by successor in interest.
A successor in interest to the right of publicity of a deceased personality pursuant to this chapter or a licensee thereof may not recover damages or equitable relief for a use prohibited pursuant to this chapter that occurs before the successor in interest registers a claim of right of publicity pursuant to § 21-64-11.
Source: SL 2015, ch 126, § 10.
21-64-11. Registration of claim of right of publicity by successor in interest--Posting on secretary of state's website.
Any person claiming to be a successor in interest to the right of publicity of a deceased personality pursuant to this chapter or a licensee thereof may register that claim with the secretary of state on a form prescribed by the secretary of state and upon payment of a one hundred dollar filing fee to the secretary of state. The form shall be verified and shall include the name and date of death of the deceased personality, the name and address of the claimant, the basis of the claim, and the rights claimed.
Upon receipt and after filing of any document pursuant to this section, the secretary of state shall post the document along with the entire registry of persons claiming to be a successor in interest to the right of publicity of a deceased personality or a registered licensee pursuant to this section on the secretary of state's website.
The secretary of state may microfilm or reproduce by other technique, any filing or document filed pursuant to this section and may then destroy the original filing or document. The secretary of state may destroy the microfilm or other reproduction of the filing or document seventy years after the death of the personality named therein.
A claim registered pursuant to this section is a public record.
Source: SL 2015, ch 126, § 11.
21-64-12. Exclusive remedy.
The provisions of this chapter constitute the sole and exclusive bases regarding a misappropriation of name, image, or likeness of a personality and the personality's right of publicity, and any remedy for a violation of such rights.
Source: SL 2015, ch 126, § 12.
CHAPTER 21-65
PROTECTION OF VULNERABLE ADULTS
21-65-1 Definitions.
21-65-2 Petition for relief from vulnerable adult abuse--Affidavit--Contents.
21-65-3 Ex parte temporary protection order.
21-65-4 Rights of vulnerable adult in action brought by substitute petitioner.
21-65-5 Forms for pro se actions.
21-65-6 Guardian ad litem.
21-65-7 Hearing on petition--Service of process.
21-65-8 Continuance of ex parte temporary protection order.
21-65-9 Temporary protection order effective until protection order served.
21-65-10 Persons who may make showing for protection order.
21-65-11 Relief available for vulnerable adult abuse.
21-65-12 Relief available for financial exploitation.
21-65-13 Limitations on protection order.
21-65-14 Term of protection order--Amendment or extension.
21-65-15 Attorney's fees and court costs.
21-65-16 Title to real property unaffected.
21-65-17 Delivery of protection order to law enforcement.
21-65-18 Right to relief unaffected by leaving home to avoid abuse.
21-65-19 Protection order--Violation--Penalty.
21-65-1. Definitions.
Terms used in this chapter mean:
(1) "Attorney-in-fact," an agent under a power of attorney pursuant to chapter 59-2 or an attorney-in-fact under a durable power of attorney pursuant to § 59-7-2.1 or chapter 59-12;
(2) "Caretaker," a related or nonrelated person who has the responsibility for the health or welfare of a vulnerable adult as a result of assuming the responsibility voluntarily, by contract, by receipt of payment for care, or by order of the court;
(3) "Conservator," as defined in subdivision 29A-5-102(2);
(4) "Vulnerable adult abuse," any of the following:
(a) Physical abuse as defined in subdivision 22-46-1(7);
(b) Emotional and psychological abuse as defined in subdivision 22-46-1(4);
(c) Neglect as defined in subdivision 22-46-1(6) and § 22-46-1.1; or
(d) Financial exploitation;
(5) "Family or household member," a spouse, a person cohabiting with the vulnerable adult, a parent, or a person related to the vulnerable adult by consanguinity or affinity, but does not include children of the vulnerable adult who are less than eighteen years of age;
(6) "Fiduciary," a person or entity with the legal responsibility to make decisions on behalf of and for the benefit of a vulnerable adult and to act in good faith and with fairness. The term, fiduciary, includes an attorney in fact, a guardian, or a conservator;
(7) "Financial exploitation," exploitation as defined in subdivision 22-46-1(5) when committed by a person who stands in a position of trust or confidence;
(8) "Guardian," as defined in subdivision 29A-5-102(4);
(9) "Peace officer," as defined in subdivision 23A-45-9(13);
(10) "Petitioner," a vulnerable adult who files a petition pursuant to this chapter, and includes a substitute petitioner who files a petition on behalf of a vulnerable adult pursuant to this chapter;
(11) "Present danger of vulnerable adult abuse," a situation in which the respondent has recently threatened the vulnerable adult with initial or additional abuse or neglect or the potential for misappropriation, misuse, or removal of the funds, benefits, property, resources, belongings, or assets of the vulnerable adult combined with reasonable grounds to believe that abuse, neglect, or exploitation is likely to occur;
(12) "Pro se," a person proceeding on the person's own behalf without legal representation;
(13) "Stands in a position of trust or confidence," the person has any of the following relationships relative to the vulnerable adult:
(a) Is a parent, spouse, adult child, or other relative by consanguinity or affinity of the vulnerable adult;
(b) Is a caretaker for the vulnerable adult; or
(c) Is a person who is in a confidential relationship with the vulnerable adult. A confidential relationship does not include a legal, fiduciary, or ordinary commercial or transactional relationship the vulnerable adult may have with a bank incorporated pursuant to the provisions of any state or federal law; any savings and loan association or savings bank incorporated pursuant to the provisions of any state or federal law; any credit union organized pursuant to the provisions of any state or federal law; any attorney licensed to practice law in this state; or any agent, agency, or company regulated under title 58 or chapter 36-21A;
(14) "Substitute petitioner," a family or household member, guardian, conservator, attorney in fact, or guardian ad litem for a vulnerable adult, or other interested person who files a petition pursuant to this chapter; and
(15) "Vulnerable adult," a person sixty-five years of age or older who is unable to protect himself or herself from abuse as a result of age or a mental or physical condition, or an adult with a disability as defined in § 22-46-1.
Source: SL 2016, ch 120, § 3; SL 2020, ch 214, § 46.
21-65-2. Petition for relief from vulnerable adult abuse--Affidavit--Contents.
A vulnerable adult or a substitute petitioner may seek relief from vulnerable adult abuse by filing a petition and affidavit in the circuit court or in a magistrate court with a magistrate judge presiding. Venue is where either party resides. The petition and affidavit shall include all of the following:
(1) The name of the vulnerable adult and the name and address of the vulnerable adult's attorney, if any. If the vulnerable adult is proceeding pro se, the petition shall include a mailing address for the vulnerable adult;
(2) The name of the substitute petitioner if the petition is being filed on behalf of a vulnerable adult, and the name and address of the attorney of the substitute petitioner. If the substitute petitioner is proceeding pro se, the petition shall include a mailing address for the substitute petitioner;
(3) The name and address, if known, of the respondent;
(4) The relationship of the vulnerable adult to the respondent;
(5) The nature of the alleged vulnerable adult abuse, including specific facts and circumstances of the abuse;
(6) The name and age of any other individual whose welfare may be affected; and
(7) The desired relief, including a request for temporary or emergency orders. A petition for relief may be made whether or not there is a pending lawsuit, complaint, petition, or other action between the parties. However, if there is any other lawsuit, complaint, petition, or other action pending between the parties, any new petition made pursuant to this section shall be made to the judge previously assigned to the pending lawsuit, petition, or other action, unless good cause is shown for the assignment of a different judge.
If a petition for a protection order alleging the existence of vulnerable adult abuse is filed with the court pursuant to this section and if the court, upon an initial review, determines that the allegations do not support the existence of vulnerable adult abuse, but that the allegations do support the existence of stalking or physical injury pursuant to § 22-19A-8 or domestic abuse pursuant to § 25-10-3, the court may hear and act upon the petition as though the petition had been filed under § 22-19A-8 or § 25-10-3 and subject to the provisions of the respective chapters.
Source: SL 2016, ch 120, § 4.
21-65-3. Ex parte temporary protection order.
If an affidavit filed with a petition under § 21-65-2 alleges that the vulnerable adult is in present danger of vulnerable adult abuse before an adverse party or his or her attorney can be heard in opposition, the court may grant an ex parte temporary protection order pending a full hearing and grant relief as the court deems proper, including an order:
(1) Restraining any person from committing vulnerable adult abuse; and
(2) Excluding any person from the dwelling or the residence of the vulnerable adult.
Source: SL 2016, ch 120, § 5.
21-65-4. Rights of vulnerable adult in action brought by substitute petitioner.
If a substitute petitioner files a petition pursuant to § 21-65-2 on behalf of a vulnerable adult, the vulnerable adult retains the right to all of the following:
(1) To contact and retain counsel;
(2) To have access to personal records;
(3) To file objections to the protection order;
(4) To request a hearing on the petition; and
(5) To present evidence and cross-examine witnesses at the hearing.
Source: SL 2016, ch 120, § 6.
21-65-5. Forms for pro se actions.
By July 1, 2016, the Unified Judicial System shall prescribe standard forms to be used by a vulnerable adult or substitute petitioner seeking a protection order by proceeding pro se in an action pursuant to this chapter.
The clerk of the circuit court shall furnish the required forms to any person seeking a protection order through pro se proceedings pursuant to this chapter.
Source: SL 2016, ch 120, § 7.
21-65-6. Guardian ad litem.
Pursuant to § 15-6-17(c), the court may on its own motion or on the motion of a party appoint a guardian ad litem for a vulnerable adult if justice requires. The vulnerable adult's attorney may not also serve as the guardian ad litem.
Source: SL 2016, ch 120, § 8.
21-65-7. Hearing on petition--Service of process.
Upon receipt of the petition, if sufficient grounds are alleged for relief, the court shall order a hearing which shall be held not later than thirty days from the date of the order unless the court grants a continuance for good cause. Personal service of the petition, affidavit, and notice for hearing shall be made on the respondent not less than five days prior to the hearing.
Upon application of a party, the court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers.
The court shall exercise its discretion in a manner that protects the vulnerable adult from traumatic confrontation with the respondent.
Hearings shall be recorded.
Upon application, notice to all parties, and hearing, the court may modify the terms of an existing protection order.
Source: SL 2016, ch 120, § 9.
21-65-8. Continuance of ex parte temporary protection order.
An ex parte temporary protection order is effective for a period of thirty days except as provided in § 21-65-9 unless the court grants a continuance for good cause. No continuance may exceed thirty days unless the court finds good cause for the additional continuance and:
(1) The parties stipulate to an additional continuance; or
(2) The court finds that law enforcement is unable to locate the respondent for purposes of service of the ex parte protection order.
If a continuance is granted, the court by order shall extend the ex parte temporary protection order until the rescheduled hearing date. The respondent shall be personally served with a copy of the ex parte order along with a copy of the petition, affidavit, and notice of the date set for the hearing. The ex parte order shall be served without delay under the circumstances of the case including service of the ex parte order on a Sunday or holiday. The law enforcement agency serving the order shall notify the petitioner by telephone or written correspondence when the order is served if the petitioner has provided to the law enforcement agency either a telephone number or address, or both, where the petitioner may be contacted. The law enforcement agency and any officer of the law enforcement agency is immune from civil and criminal liability if the agency or the officer makes a good faith attempt to notify the petitioner in a manner consistent with the provisions of this section.
Source: SL 2016, ch 120, § 10.
21-65-9. Temporary protection order effective until protection order served.
If an ex parte temporary protection order is in effect and the court issues a protection order pursuant to this chapter, the ex parte temporary protection order remains effective until the order issued pursuant to this chapter is served on the respondent.
Source: SL 2016, ch 120, § 11.
21-65-10. Persons who may make showing for protection order.
The showing required pursuant to § 21-65-11 may be made by any of the following:
(1) The vulnerable adult;
(2) The guardian, conservator, attorney-in-fact, or guardian ad litem of the vulnerable adult;
(3) A witness to the vulnerable adult abuse; or
(4) An adult protective services worker who has conducted an investigation.
Source: SL 2016, ch 120, § 12; SL 2020, ch 214, § 47.
21-65-11. Relief available for vulnerable adult abuse.
Upon a finding by a preponderance of the evidence that vulnerable adult abuse has occurred, the court may order any of the following:
(1) That the respondent be required to move from the residence of the vulnerable adult if both the vulnerable adult and the respondent are titleholders or contract holders of record of the real property, are named as tenants in the rental agreement concerning the use and occupancy of the dwelling unit, are living in the same residence, or are married to each other;
(2) That the respondent provide suitable alternative housing for the vulnerable adult;
(3) That a peace officer accompany the party who is leaving or has left the party's residence to remove essential personal effects of the party;
(4) That the respondent be restrained from vulnerable adult abuse;
(5) That the respondent be restrained from entering or attempting to enter on any premises when it appears to the court that restraint is necessary to prevent the respondent from committing vulnerable adult abuse;
(6) That the respondent be restrained from exercising any powers on behalf of the vulnerable adult through a court-appointed guardian, conservator, or guardian ad litem, an attorney-in-fact, or another third party; and
(7) In addition to the relief provided in § 21-65-12, other relief that the court considers necessary to provide for the safety and welfare of the vulnerable adult.
Any relief granted by the order for protection shall be for a fixed period and may not exceed five years.
Source: SL 2016, ch 120, § 13; SL 2020, ch 214, § 48.
21-65-12. Relief available for financial exploitation.
If the court finds that the vulnerable adult has been the victim of financial exploitation, the court may order the relief the court considers necessary to prevent or remedy the financial exploitation, including any of the following:
(1) Directing the respondent to refrain from exercising control over the funds, benefits, property, resources, belongings, or assets of the vulnerable adult;
(2) Requiring the respondent to return custody or control of the funds, benefits, property, resources, belongings, or assets to the vulnerable adult;
(3) Requiring the respondent to follow the instructions of the guardian, conservator, or attorney-in-fact of the vulnerable adult; and
(4) Prohibiting the respondent from transferring the funds, benefits, property, resources, belongings, or assets of the vulnerable adult to any person other than the vulnerable adult.
Source: SL 2016, ch 120, § 14; SL 2020, ch 214, § 49.
21-65-13. Limitations on protection order.
The court may not use an order issued pursuant to this chapter to do any of the following:
(1) To allow any person other than the vulnerable adult to assume responsibility for the funds, benefits, property, resources, belongings, or assets of the vulnerable adult; or
(2) For relief that is more appropriately obtained in a proceeding filed pursuant to chapter 29A-5 including giving control and management of the funds, benefits, property, resources, belongings, or assets of the vulnerable adult to a conservator for any purpose other than the relief granted pursuant to § 21-65-12.
Source: SL 2016, ch 120, § 15.
21-65-14. Term of protection order--Amendment or extension.
A protection order shall be for a fixed period of time not to exceed five years. The court may amend or extend an order at any time upon a petition filed by either party and after notice and a hearing. The court may extend an order if the court, after a hearing at which the respondent has the opportunity to be heard, finds that the respondent continues to pose a threat to the safety of the vulnerable adult, a person residing with the vulnerable adult, or a member of the vulnerable adult's immediate family, or continues to present a risk of financial exploitation of the vulnerable adult. The number of extensions that the court may grant is not limited.
Source: SL 2016, ch 120, § 16.
21-65-15. Attorney's fees and court costs.
The court may order that the respondent pay the attorney's fees and court costs of the vulnerable adult and substitute petitioner.
Source: SL 2016, ch 120, § 17.
21-65-16. Title to real property unaffected.
An order pursuant to this chapter does not affect title to real property.
Source: SL 2016, ch 120, § 18.
21-65-17. Delivery of protection order to law enforcement.
The petitioner may deliver an order within twenty-four hours to the local law enforcement agency having jurisdiction over the residence of the vulnerable adult. Each law enforcement agency shall make available to other law enforcement officers information as to the existence and status of any order for protection issued pursuant to this chapter.
Source: SL 2016, ch 120, § 19.
21-65-18. Right to relief unaffected by leaving home to avoid abuse.
The petitioner's right to relief under this chapter is not affected by the vulnerable adult leaving home to avoid vulnerable adult abuse.
Source: SL 2016, ch 120, § 20.
21-65-19. Protection order--Violation--Penalty.
If a temporary protection order or a protection order is granted pursuant to this chapter and the respondent or person restrained knows of the order, a violation of the order is a Class 1 misdemeanor.
If the acts constituting a violation of this section also constitute an assault, as defined in § 22-18-1, the violation of this section is a Class 6 felony.
If a respondent or person restrained has been convicted of, or entered a plea of guilty to, two or more prior violations of this section, § 22-19A-16, or § 25-10-13, or the comparable laws of any other state, within ten years of committing the current offense, and the factual basis for the current offense occurred after the date of the second conviction or guilty plea, the respondent or person restrained is guilty of a Class 6 felony for a third offense, a Class 5 felony for a fourth offense, and a Class 4 felony for a fifth or subsequent offense.
Any proceeding under this chapter is in addition to other civil or criminal remedies.
Source: SL 2020, ch 76, § 1; SL 2021, ch 90, § 1.
21-66-1
Definitions
.
21-66-2
Sworn statement identifying asbestos trust claims to be provided to parties.
21-66-3
Contents of sworn statement.
21-66-4
Availability of trust claims material--Supplementation
.
21-66-5
Admissibility of trust claims material and trust governance document--Discovery.
21-66-6
Grounds for stay of action
.
21-66-7
Conference regarding additional trust claim--Motion for order to file asbestos trust
claim.
21-66-8
Response to motion for order to file asbestos trust claim
.
21-66-9
Court order regarding filing of additional asbestos trust claim.
21-66-10
Admissibility of unresolved asbestos trust claim.
21-66-11
Sanctions for failure to provide required information
.
21-66-1. Definitions.
Terms used in this chapter mean:
(1) "Asbestos," chrysotile, amosite, crocidolite, tremolite asbestos, anthophyllite asbestos, actinolite asbestos, asbestiform winchite, asbestiform richterite, asbestiform amphibole minerals, or any of these minerals that have been chemically treated or altered, including any mineral defined as asbestos in 29 C.F.R. § 1910 at the time an asbestos action is filed;
(2) "Asbestos action," a claim for damages or other civil or equitable relief presented in a civil action arising out of, based on, or related to the health effects of exposure to asbestos, including loss of consortium, wrongful death, mental or emotional injury, risk or fear of disease or other injury, costs of medical monitoring or surveillance, and any other derivative claim made by or on behalf of a person exposed to asbestos or a representative, spouse, parent, child, or other relative of that person. The term does not include a claim for workers' compensation or veterans' benefits;
(3) "Asbestos trust," a government-approved or court-approved trust, qualified settlement fund, compensation fund, or claims facility created as a result of an administrative or legal action, a court-approved bankruptcy, or pursuant to 11 U.S.C. § 524(g) or 11 U.S.C. § 1121(a) or any other law, that is intended to provide compensation to claimants arising out of, based on, or related to the health effects of exposure to asbestos;
(4) "Plaintiff," any person who brings an asbestos action, including a personal representative for any asbestos action that is brought by an estate, or a conservator or next friend for any asbestos action that is brought on behalf of a minor or a legally incapacitated person;
(5) "Trust claims material," any final executed proof of claim, any other document or information submitted to an asbestos trust, including a claim form or supplementary material, affidavit, deposition or trial testimony, work history, medical or health record, document reflecting the status of a claim against an asbestos trust, or if the trust claim has settled, any document submitted to or received from an asbestos trust relating to the settlement of the trust claim; and
(6) "Trust governance document," any document that relates to eligibility or payment levels, including a claims payment matrix, trust distribution procedure, or plan for reorganization, for an asbestos trust.
Source: SL 2017, ch 94, § 1.
21-66-2. Sworn statement identifying asbestos trust claims to be provided to parties.
Not more than one hundred twenty days prior to the date set for trial for each asbestos action filed in this state, the plaintiff shall provide each party with a sworn statement identifying any asbestos trust claim that has been filed by the plaintiff or by anyone on the plaintiff's behalf, including a claim regarding asbestos-related conditions other than those that are the basis for the asbestos action or that potentially could be filed by the plaintiff against an asbestos trust.
Source: SL 2017, ch 94, § 2.
21-66-3. Contents of sworn statement.
For each asbestos trust claim or potential asbestos trust claim identified in the sworn statement under § 21-66-2, the statement shall include:
(1) The name, address and contact information for the asbestos trust, the amount claimed or to be claimed by the plaintiff, the date the plaintiff filed the claim, the disposition of the claim and whether there has been a request to defer, delay, suspend, or toll the claim; and
(2) An attestation from the plaintiff, under penalty of perjury, that the sworn statement is complete and based on a good faith investigation of any potential claim against an asbestos trust.
Source: SL 2017, ch 94, § 3.
21-66-4. Availability of trust claims material--Supplementation.
The plaintiff shall make available to each party any trust claims material for each asbestos trust claim that has been filed by the plaintiff or by anyone on the plaintiff's behalf against an asbestos trust, including any asbestos-related disease. The plaintiff shall supplement the information and material provided pursuant to this section within ninety days after the plaintiff files an additional asbestos trust claim, supplements an existing asbestos trust claim, or receives additional information or material related to any claim or potential claim against an asbestos trust. Failure by the plaintiff to make available to all parties any trust claims material required under this section constitutes grounds for the court to extend the trial date in an asbestos action.
Source: SL 2017, ch 94, § 4.
21-66-5. Admissibility of trust claims material and trust governance document--Discovery.
Every trust claims material or trust governance document is presumed to be relevant and authentic and is admissible in evidence. Claims of privilege do not apply to any trust claims material or trust governance document. A defendant in an asbestos action may seek discovery from an asbestos trust. The plaintiff may not claim privilege or confidentiality to bar discovery and shall provide consent or other expression of permission that may be required by the asbestos trust to release information or material sought by a defendant.
Source: SL 2017, ch 94, § 5.
21-66-6. Grounds for stay of action.
A court shall stay an asbestos action if the court finds that the plaintiff has failed to make any disclosure required under this chapter within one hundred twenty days before the trial date. If, in any disclosure required under this chapter, a plaintiff identifies a potential asbestos trust claim, the judge may stay the asbestos action until the plaintiff files the asbestos trust claim and provides all parties with any trust claims material for the claim. The plaintiff shall also state whether there has been a request to defer, delay, suspend, or toll the claim against the asbestos trust.
Source: SL 2017, ch 94, § 6.
21-66-7. Conference regarding additional trust claim--Motion for order to file asbestos trust claim.
If, not less than ninety days before trial, a defendant identifies an asbestos trust claim not previously identified by the plaintiff that the defendant reasonably believes the plaintiff may file, the defendant shall confer with the plaintiff regarding any additional asbestos trust claim that may be filed by the plaintiff. The defendant may move the court for an order to require the plaintiff to file any additional asbestos trust claim following the meeting under this section. The defendant shall produce or describe any documentation the defendant possesses or of which the defendant is aware in support of the motion.
Source: SL 2017, ch 94, § 7.
21-66-8. Response to motion for order to file asbestos trust claim.
Within ten days following receipt of the defendant's motion under § 21-66-7, the plaintiff shall for each asbestos trust claim identified by the defendant:
(1) File the asbestos trust claim;
(2) File a written response with the court setting forth any reason why there is insufficient evidence for the plaintiff to file the asbestos trust claim; or
(3) File a written response with the court requesting a determination that the plaintiff's expenses, or attorney's fees and expenses, to prepare and file the asbestos trust claim identified in the defendant's motion exceed the plaintiff's reasonably anticipated recovery from the trust.
Source: SL 2017, ch 94, § 8.
21-66-9. Court order regarding filing of additional asbestos trust claim.
If the court determines that there is sufficient basis for the plaintiff to file an additional asbestos trust claim identified by the defendant pursuant to § 21-66-7, the court shall order the plaintiff to file the asbestos trust claim and shall stay the asbestos action until the plaintiff files the asbestos trust claim and provides all parties with any trust claims material within thirty days before the trial date. If the court determines that the plaintiff's expenses, or attorney's fees and expenses, to prepare and file the asbestos trust claim identified in the defendant's motion under § 21-66-7 exceed the plaintiff's reasonably anticipated recovery from the asbestos trust, the court shall stay the asbestos action until the plaintiff files with the court and provides each party with a verified statement of the plaintiff's history of exposure, usage, or any other connection to asbestos covered by the asbestos trust.
Source: SL 2017, ch 94, § 9.
21-66-10. Admissibility of unresolved asbestos trust claim.
If a plaintiff proceeds to trial in an asbestos action before an asbestos trust claim is resolved, the filing of the asbestos trust claim may be considered relevant and admissible evidence.
Source: SL 2017, ch 94, § 10.
21-66-11. Sanctions for failure to provide required information.
A plaintiff who fails to provide any information required under this chapter is subject to a sanction as provided in the South Dakota Rules of Civil Procedure and any other relief for a defendant that the court considers just and proper.
Source: SL 2017, ch 94, § 11.
CHAPTER 21-67
UNIFORM CIVIL REMEDIES FOR UNAUTHORIZED DISCLOSURE OF INTIMATE IMAGES ACT
21-67-1 Short title.
21-67-2 Definitions.
21-67-3 Intentional disclosure of intimate images--Civil action.
21-67-4 Exceptions to liability.
21-67-5 Plaintiff privacy.
21-67-6 Remedies.
21-67-7 Statute of limitations.
21-67-8 Construction.
21-67-9 Uniformity of application and construction.
21-67-1. Short title.
This chapter may be cited as the Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act.
Source: SL 2020, ch 77, § 1.
21-67-2. Definitions.
Terms used in this chapter mean:
(1) "Consent," affirmative, conscious, and voluntary authorization by an individual with legal capacity to give authorization;
(2) "Depicted individual," an individual whose body is shown in whole or in part in an intimate image;
(3) "Disclosure," transfer, publication, or distribution to another person. Disclose has a corresponding meaning;
(4) "Identifiable," recognizable by a person other than the depicted individual:
(A) From an intimate image itself; or
(B) From an intimate image and identifying characteristic displayed in connection with the intimate image;
(5) "Identifying characteristic," information that may be used to identify a depicted individual;
(6) "Individual," a human being;
(7) "Intimate image," a photograph, film, video recording, or other similar medium that shows:
(A) The uncovered genitals, pubic area, anus, or female post-pubescent nipple of a depicted individual; or
(B) A depicted individual engaging in or being subjected to sexual conduct;
(8) "Person," an individual, estate, business or nonprofit entity, public corporation, government or governmental subdivision, agency, or instrumentality, or other legal entity;
(9) "Sexual conduct," includes:
(A) Masturbation;
(B) Genital, anal, or oral sex;
(C) Sexual penetration of, or with, an object;
(D) Bestiality; or
(E) The transfer of semen onto a depicted individual.
Source: SL 2020, ch 77, § 2.
21-67-3. Intentional disclosure of intimate images--Civil action.
(a) In this section:
(1) "Harm" includes physical harm, economic harm, and emotional distress whether or not accompanied by physical or economic harm.
(2) "Private" means:
(A) Created or obtained under circumstances in which a depicted individual had a reasonable expectation of privacy; or
(B) Made accessible through robbery, theft, bribery, extortion, fraud, false pretenses, voyeurism, or exceeding authorized access to an account, message, file, device, resource, or property.
(b) Except as otherwise provided in § 21-67-4, a depicted individual who is identifiable and who suffers harm from a person's intentional disclosure or threatened disclosure of an intimate image that was private without the depicted individual's consent has a cause of action against the person if the person knew, or acted with reckless disregard for whether:
(1) The depicted individual did not consent to the disclosure;
(2) The intimate image was private; and
(3) The depicted individual was identifiable.
(c) The following conduct by a depicted individual does not establish by itself that the individual consented to the disclosure of the intimate image which is the subject of an action under this chapter or that the individual lacked a reasonable expectation of privacy:
(1) Consent to creation of the image; or
(2) Previous consensual disclosure of the image.
(d) A depicted individual who does not consent to the sexual conduct or uncovering of the part of the body depicted in an intimate image of the individual retains a reasonable expectation of privacy even if the image was created when the individual was in a public place.
Source: SL 2020, ch 77, § 3.
21-67-4. Exceptions to liability.
(a) In this section:
(1) "Child" means an unemancipated individual who is less than eighteen years of age;
(2) "Parent" means an individual recognized as a parent under law of this state other than this chapter.
(b) A person is not liable under this chapter if the person proves that disclosure of, or a threat to disclose, an intimate image was:
(1) Made in good faith in:
(A) Law enforcement;
(B) A legal proceeding; or
(C) Medical education or treatment;
(2) Made in good faith in the reporting or investigation of:
(A) Unlawful conduct; or
(B) Unsolicited and unwelcome conduct;
(3) Related to a matter of public concern or public interest; or
(4) Reasonably intended to assist the depicted individual.
(c) Subject to subsection (d), a defendant who is a parent, legal guardian, or custodian of a child is not liable under this chapter for a disclosure or threatened disclosure of an intimate image, as defined in § 21-67-2, of the child.
(d) If a defendant asserts an exception to liability under subsection (c), the exception does not apply if the plaintiff proves the disclosure was:
(1) Prohibited by law other than this chapter; or
(2) Made for the purpose of sexual arousal, sexual gratification, humiliation, degradation, or monetary or commercial gain.
(e) Disclosure of, or a threat to disclose, an intimate image is not a matter of public concern or public interest solely because the depicted individual is a public figure.
Source: SL 2020, ch 77, § 4.
21-67-5. Plaintiff privacy.
In an action under this chapter:
(1) The court may exclude or redact from all pleadings and documents filed in the action other identifying characteristics of the plaintiff under § 15-15-11;
(2) A plaintiff to whom paragraph (1) applies shall file with the court and serve on the defendant a confidential information form that includes the excluded or redacted plaintiff’s name and other identifying characteristics; and
(3) The court may make further orders as necessary to protect the identity and privacy of a plaintiff.
Source: SL 2020, ch 77, § 5.
21-67-6. Remedies.
(a) In an action under this chapter, a prevailing plaintiff may recover:
(1) The greater of:
(A) Economic and noneconomic damages proximately caused by the defendant’s disclosure or threatened disclosure, including damages for emotional distress whether or not accompanied by other damages; or
(B) Statutory damages not to exceed ten thousand dollars against each defendant found liable under this chapter for all disclosures and threatened disclosures by the defendant of which the plaintiff knew or reasonably should have known when filing the action or which became known during the pendency of the action. In determining the amount of statutory damages under this subsection, consideration must be given to the age of the parties at the time of the disclosure or threatened disclosure, the number of disclosures or threatened disclosures made by the defendant, the breadth of distribution of the image by the defendant, and other exacerbating or mitigating factors;
(2) An amount equal to any monetary gain made by the defendant from disclosure of the intimate image; and
(3) Punitive damages as allowed by § 21-3-2.
(b) In an action under this chapter, the court may award a prevailing plaintiff:
(1) Attorney's fees and costs as allowed by § 15-6-54(d); and
(2) Additional relief, including injunctive relief.
(c) This chapter does not affect a right or remedy available under law of this state other than this chapter.
Source: SL 2020, ch 77, § 6.
21-67-7. Statute of limitations.
(a) An action under § 21-67-3 for:
(1) An unauthorized disclosure may not be brought later than six years from the date the disclosure was discovered or should have been discovered with the exercise of reasonable diligence; and
(2) A threat to disclose may not be brought later than six years from the date of the threat to disclose.
(b) This chapter is subject to § 15-2-22.
Source: SL 2020, ch 77, § 7.
21-67-8. Construction.
This chapter shall be construed to be consistent with the Communications Decency Act of 1996, 47 U.S.C. Section 230.
Source: SL 2020, ch 77, § 8.
21-67-9. Uniformity of application and construction.
In applying and construing this uniform act, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source: SL 2020, ch 77, § 9.
CHAPTER 21-68
LIMITATION OF LIABILITY FOR EXPOSURE TO COVID-19
21-68-1 Definitions.
21-68-2 Limitation--Actions--Diagnosis--Intentional exposure.
21-68-3 Limitation--Actions--Owner--Premises.
21-68-4 Limitation--Actions--Health care provider.
21-68-5 Limitation--Actions--Personal protective equipment.
21-68-6 Construction.
21-68-1. Definitions.
Terms used in this chapter mean:
(1) "COVID-19," the novel coronavirus identified as SARS-CoV-2, the disease caused by the novel coronavirus SARS-CoV-2 or a virus mutating therefrom, and conditions associated with the disease caused by the novel coronavirus SARS-CoV-2 or a virus mutating therefrom;
(2) "Disinfecting or cleaning supplies," hand sanitizers, disinfectants, sprays, and wipes;
(3) "First responders," law enforcement officers, firemen, emergency medical services workers, and other similarly situated persons;
(4) "Health care facility":
(a) Any facility regulated under chapter 34-12; or
(b) Residential care facilities, nursing facilities, intermediate care facilities for persons with mental illness, intermediate care facilities for persons with intellectual disabilities, hospice programs, elder group homes, dental clinics, orthodontic clinics, optometric clinics, chiropractic clinics, and assisted living programs;
(5) "Health care professional," physicians and other health care practitioners who are licensed, certified, or otherwise authorized or permitted by the laws of this state to administer health care services in the ordinary course of business or in the practice of a profession, whether paid or unpaid, including persons engaged in telemedicine or telehealth. The term includes the employer or agent of a health care professional who provides or arranges health care;
(6) "Health care provider," a health care professional, health care facility, home health care facility, and any other person or facility otherwise authorized or permitted by any federal or state statute, rule, order, or public health guidance to administer health care services or treatment, including first responders;
(7) "Health care services," services for the diagnosis, prevention, treatment, care, cure, or relief of a health condition, illness, injury, or disease;
(8) "Person," a natural person, corporate or common law entity, business entity registered pursuant to § 37-11-1, and the state and any political subdivision thereof, including school districts. The term includes an agent of a person;
(9) "Personal protective equipment," protective clothing, gloves, face shields, goggles, facemasks, respirators, gowns, aprons, coveralls, and other equipment designed to protect the wearer from injury or the spread of infection or illness;
(10) "Premises," any real property and any appurtenant building or structure, and any vehicle, serving a commercial, residential, educational, religious, governmental, cultural, charitable, or health care purpose;
(11) "Public health guidance," written guidance related to COVID-19 issued by any of the following:
(a) The Center for Disease Control and Prevention of the federal Department of Health and Human Services;
(b) The Centers for Medicare and Medicaid Services of the federal Department of Health and Human Services;
(c) The federal Occupational Safety and Health Administration;
(d) The Office of the Governor; or
(e) Any state agency, including the Department of Health;
(12) "Qualified product":
(a) Personal protective equipment used to protect the wearer from COVID-19 or to prevent the spread of COVID-19;
(b) Medical devices, equipment, and supplies used to treat COVID-19, including medical devices, equipment, or supplies that are used or modified for an unapproved use to treat COVID-19 or to prevent the spread of COVID-19;
(c) Medical devices, equipment, and supplies used outside of their normal use to treat COVID-19 or to prevent the spread of COVID-19;
(d) Medications used to treat COVID-19, including medications prescribed or dispensed for off-label use to attempt to treat COVID-19;
(e) Tests to diagnose or determine immunity to COVID-19; or
(f) Any component of an item described in this subdivision.
(13) "Vehicle," a device used for transporting people, goods, or substances, including, but not limited to, an automobile, truck, bus, train, helicopter, or airplane.
Source: SL 2021, ch 91, § 1.
21-68-2. Limitation--Actions--Diagnosis--Intentional exposure.
A person may not bring or maintain any action or claim for damages or relief alleging exposure or potential exposure to COVID-19 unless the exposure results in a COVID-19 diagnosis and the exposure is the result of intentional exposure with the intent to transmit COVID-19. In alleging intentional exposure with the intent to transmit COVID-19, a party shall state with particularity the circumstances constituting intentional exposure with the intent to transmit COVID-19 including all duty, breach, and intent elements and establish all elements by clear and convincing evidence.
Source: SL 2021, ch 91, § 2.
21-68-3. Limitation--Actions--Owner--Premises.
A person who possesses or is in control of a premises, including a tenant, lessee, or occupant of a premises, who directly or indirectly invites or permits an individual onto a premises, shall not be liable for damages for any injuries sustained from the individual's exposure to COVID-19, whether the exposure occurs on the premises or during any activity managed by the person who possesses or is in control of a premises unless the person who possesses or is in control of the premises intentionally exposes the individual to COVID-19 with the intent to transmit COVID-19. In alleging intentional exposure with the intent to transmit COVID-19, a party must state with particularity the circumstances constituting intentional exposure with the intent to transmit COVID-19 including all duty, breach, and intent elements and establish all elements by clear and convincing evidence.
Source: SL 2021, ch 91, § 3.
21-68-4. Limitation--Actions--Health care provider.
A health care provider is not liable for any damages for causing or contributing, directly or indirectly, to the death or injury of a person as a result of the health care provider's acts or omissions in response to COVID-19. This section applies to all of the following:
(1) Injury or death resulting from screening, assessing, diagnosing, caring for, or treating persons with a suspected or confirmed case of COVID-19;
(2) Prescribing, administering, or dispensing a pharmaceutical for off-label use to treat a patient with a suspected or confirmed case of COVID-19; and
(3) Acts or omissions while providing health care to persons unrelated to COVID-19 if those acts or omissions support the state's response to COVID-19, including any of the following:
(a) Delaying or canceling nonurgent or elective dental, medical, or surgical procedures, or altering the diagnosis or treatment of a person in response to any federal or state statute, regulation, order, or public health guidance;
(b) Diagnosing or treating patients outside the normal scope of the health care provider's license or practice;
(c) Using medical devices, equipment, or supplies outside of their normal use for the provision of health care, including using or modifying medical devices, equipment, or supplies for an unapproved use;
(d) Conducting tests or providing treatment to any person outside the premises of a health care facility;
(e) Acts or omissions undertaken by a health care provider because of a lack of staffing, facilities, medical devices, equipment, supplies, or other resources attributable to COVID-19 that renders the health care provider unable to provide the level or manner of care to any person that otherwise would have been required in the absence of COVID-19; and
(f) Acts or omissions undertaken by a health care provider relating to the use or nonuse of personal protective equipment.
This section does not relieve any person or health care provider of liability for civil damages for any act or omission that constitutes gross negligence, recklessness, or willful misconduct.
Source: SL 2021, ch 91, § 4.
21-68-5. Limitation--Actions--Personal protective equipment.
Any person that designs, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 is not liable in a civil action alleging personal injury, death, or property damage caused by or resulting from the design, manufacturing, labeling, selling, distributing, or donating of the disinfecting or cleaning supplies, personal protective equipment, or a qualified product.
Any person that designs, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies, personal protective equipment, or a qualified product in response to COVID-19 is not liable in a civil action alleging personal injury, death, or property damage caused by or resulting from a failure to provide proper instructions or sufficient warnings.
This section does not relieve any person of liability for civil damages for any act or omission that constitutes gross negligence, recklessness, or willful misconduct.
Source: SL 2021, ch 91, § 5.
21-68-6. Construction.
This chapter may not be construed to do any of the following:
(1) Create, recognize, or ratify a claim or cause of action of any kind;
(2) Eliminate or satisfy a required element of a claim or cause of action of any kind;
(3) Deem COVID-19 an occupational disease. COVID-19 is not an occupational disease under state law; or
(4) Abrogate, amend, repeal, alter, or affect any statutory or common law immunity or limitation of liability.
Source: SL 2021, ch 91, § 6.