Commencement of action

A civil action is commenced as provided in §§ 15-2-30 and 15-2-31 . Source: SD RCP, Rule 3, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-4(a). Summons--Form. The summons shall be legibly subscribed by the plaintiff or his attorney and shall include the subscriber's address. It shall be directed to the defendant, and shall require him to answer the complaint and serve a copy of his answer on the subscriber at the subscriber's address within thirty days after the service of the summons, exclusive of the day of service, and shall notify him that in case of his failure to answer, judgment by default may be rendered against him as requested in the complaint. Whenever the form of the summons is specified in any statute or rule relating to any action, remedy or special proceeding, the form so specified shall be used. Source: SDC 1939 & Supp 1960, § 33.0803; SD RCP, Rule 4 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2010, ch 251 (Supreme Court Rule 09-07), eff. Sept. 24, 2009. 15-6-4(b). Summons served without complaint. A copy of the complaint need not be served with the summons. In such case the summons must state where the complaint is or will be filed. If the complaint is not served with the summons and the defendant within thirty days after service of the summons, in any such case, causes notice of appearance to be given, in person or by attorney, and demands in writing a copy of the complaint specifying a place within the state where it may be served, a copy of the complaint must, within twenty days thereafter, be served accordingly. After such service of the complaint, the defendant has thirty days to answer or otherwise proceed against the complaint. In any of such cases where the same attorney appears for different parties, only one copy of a notice, complaint, answer, motion, or other paper in the action need be served upon him, unless otherwise specifically ordered by the court in any case. Source: SDC 1939 & Supp 1960, § 33.0821; SD RCP, Rule 4 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-4(c). By whom summons served. The summons may be served by the sheriff or a constable of the county or other comparable political subdivision where the defendant may be found, or in the District of Columbia by the United States marshal or a deputy, or by any other person not a party to the action who at the time of making such service is an elector of any state. If the defendant to be served is an Indian residing in Indian country, the summons may be served by a person not a party to the action who at the time of making such service is an elector of any state. The service shall be made and the summons returned with proof of the service, with all reasonable diligence, to the plaintiff's attorney, if any, otherwise to the plaintiff. The plaintiff or the plaintiff's attorney may by endorsement on the summons fix a time for the service thereof, and the service shall be made accordingly. Source: SDC 1939 & Supp 1960, § 33.0806; SD RCP, Rule 4 (c), as adopted by Supp. Ct. Order March 29, 1966, effective July 1, 1966; SL 1979, ch 147 , § 1; SL 1994, ch 155 ; SL 1999, ch 102 , § 1. 15-6-4(d). Personal service of summons. The summons shall be served by delivering a copy thereof. Service in the following manner shall constitute personal service: (1) If the action is against a business entity, on the president, partner or other head of the entity, officer, director, or registered agent thereof. If any of the above cannot be conveniently found, service may be made by leaving a copy of the summons and complaint at any office of such business entity within this state, with the person in charge of such office; (i) A business entity for purposes of this subdivision shall include, but not be limited to: A. Domestic and foreign corporations; B. Domestic and foreign partnerships; C. Limited liability companies; D. Entities with fictitious names; and E. Any entity required to have a registered agent with the Secretary of State. (2) If the action is against a public corporation within this state, service may be made as follows: (i) Upon a county, by serving upon any county commissioner; (ii) Upon a first or second class municipality, by serving upon the mayor or any alderman or commissioner; (iii) Upon a third class municipality, by serving upon any trustee; (iv) Upon an organized township, by serving upon any supervisor; (v) Upon any school district, by serving upon any member of the school board or board of education; and (vi) Upon a consumers power district, by serving upon any member of the board of directors; (3) If the action is against a minor, upon a parent or person having custody, and if the minor is over the age of fourteen years, then also upon such minor personally, and in any event upon the legally appointed guardian, guardian ad litem or conservator, if there is one; (4) If the action is against a person judicially declared to be mentally incompetent, or who is a patient at an institution for persons with mental illnesses or developmental disabilities or for whom a guardian or conservator has been legally appointed, upon such guardian or conservator, and upon the administrator or superintendent of such institutions for persons with mental illnesses or developmental disabilities, or person having custody, and also upon the person with mental illness or a developmental disability; provided that if the person with mental illness or a developmental disability is a patient of an institution for persons with mental illnesses or developmental disabilities, and the administrator or superintendent thereof shall certify in writing that service upon such person personally would be unavailing or injurious to his physical or mental well-being, and such certificate be filed, service upon such individual may be dispensed with by order of court; (5) If the action is against the state or any of its institutions, departments, or agencies, by service upon such officer or employee as may be designated by the statute authorizing such action, and upon the attorney general. In all matters involving title to land owned or held in trust by the state or any of its institutions, departments, or agencies, upon the commissioner of school and public lands and the attorney general. In all matters other than those involving title to such lands, if no officer or employee is designated, then upon the Governor and the attorney general. Any of such officers or employees referred to in § 15-6-4 may admit service of the summons with the same legal effect as if it had been personally served upon them by an officer or elector; (6) If the action is against a state officer, employee or agent arising out of his office, employment or agency, a copy of the summons and complaint shall be mailed, certified mail, postage prepaid to the attorney general together with an admission of service and a return envelope, postage prepaid, addressed to the sender. The executed admission of service shall be filed by the sender in accordance with § 15-6-5(d); (7) Whenever the manner of service of process is specified in any statute or rule relating to any action, remedy or special proceedings the manner of service so specified shall be followed; (8) In all other cases, to the defendant personally; and (9) If the action is against a person or business entity in a foreign country, service may be made as follows: (i) By an internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the service abroad of judicial and extrajudicial documents; or (ii) If there is no internationally agreed means of service, service reasonably calculated to give notice may be made: (A) In the manner prescribed by the law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; (B) As directed by the foreign authority in response to a letter rogatory or letter request; or (C) Unless prohibited by the law of the foreign country; by delivery to the individual personally; upon a corporation, limited liability company, limited partnership or partnership or association, by delivery to an officer, or a managing, general or registered agent; or by any form of mail requiring a signed receipt; or (iii) As directed by the court. Service under this subdivision may be made by any person authorized by § 15-6-4(c), anyone duly authorized to serve lawful summons by the law of the country where service is to be made, pursuant to the applicable treaty or convention, or by anyone designated by order of the court or the foreign court. Proof of service may be made as prescribed in § 15-6-4(g), pursuant to the applicable treaty or convention, by order of the court, or by law of the foreign country. Proof of service by mail shall include an affidavit or certificate of addressing and mailing. Source: SDC 1939 & Supp 1960, § 33.0807; SD RCP, Rule 4(d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1984, ch 144 , § 1; SL 1986, ch 159 ; SL 1992, ch 60 , § 2; SL 1993, ch 213 , § 87; SL 2002, ch 248 , § 1; SL 2003, ch 114 , § 1; SL 2005, ch 287 (Supreme Court Rule 05-01), effective Feb. 25, 2005. 15-6-4(e). Service by leaving copy with resident of defendant's dwelling. Service in the following manner shall also constitute personal service. If the defendant cannot be found conveniently, service may be made by leaving a copy at the defendant's dwelling with someone over the age of fourteen years who resides there. Source: SDC 1939 & Supp 1960, § 33.0808; SD RCP, Rule 4 (e), as adopted by Sup. Ct. Order March 29, 1966, eff. July 1, 1966; SL 2005, ch 288 (Supreme Court Rule 05-02), eff. Feb. 25, 2005; SL 2016, ch 237 (Supreme Court Rule 15-15 ), eff. Jan. 1, 2016. 15-6-4(f). Service upon party not a resident of or found within state. Whenever a statute of this state provides for the service of a legal process upon a party not a resident of or found within the state, service shall be made under the circumstances and in the manner prescribed by the statute. Source: SD RCP, Rule 4 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-4(g). Proof of service. Proof of the service of the summons and complaint or of any pleading, process, or other paper must state the time, place, and manner of such service or of publication and mailing and must be made as follows: (1) If served by a sheriff or a county constable, his certificate thereof; (2) If by any other person, his affidavit thereof; (3) The written admission of the party or his representative upon whom service might have been made for such party; (4) In case of publication, by affidavit of the printer, his foreman, or principal clerk or the publisher of the newspaper showing the same and an affidavit of mailing of copies as required by law; or (5) In case of mailing, by affidavit of mailing and admission of service. Source: SDC 1939, §§ 33.0810, 33.0816; SL 1945, ch 146 ; SD RCP, Rule 4 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1979, ch 11147, § 2; SL 1985, ch 159 , § 2. 15-6-4(h). Amendment of process. The court in its discretion and on such terms as it deems just may at any time allow any summons or other process or proof of service thereof to be amended, unless it clearly appears that substantial rights of the person against whom the process issued would be prejudiced thereby. Source: SD RCP, Rule 4 (h), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-4(i). Service by mail--Admission of service--Costs. Notwithstanding any other provision of law, a summons may be served upon a defendant in any action by mailing a copy of the summons, two copies of the notice and admission of service, conforming substantially to the form provided for in § 15-6-4(j), and a return envelope, postage prepaid, addressed to the sender. The notice and admission of service shall set forth that the failure to sign and return the admission of service within twenty days after the date of mailing without good cause will result in the court ordering the person so served to pay the costs of personal service. Unless good cause is shown for not returning the admission of service to the sender within twenty days of mailing, the court shall order the payment of the costs of personal service to be paid by the defendant in the action. Source: SL 1985, ch 159 , § 1. 15-6-4(j). Form of notice and admission of service by mail. The notice and admission of service provided for in § 15-6-4(i) shall be substantially in the following form: NOTICE AND ADMISSION OF SERVICE BY MAIL STATE OF SOUTH DAKOTA IN CIRCUIT COURT COUNTY OF __________ ________ JUDICIAL CIRCUIT _________________________, Plaintiff NOTICE AND ADMISSION OF vs. SUMMONS/SUMMONS AND _________________________, Defendant COMPLAINT NOTICE To: ____________________ The enclosed summons is served pursuant to § 15-6-4. You must complete the admission part of this form and return one copy of the completed form to the sender within twenty days. You must sign and date the admission. If you are served on behalf of a corporation, unincorporated association (including a partnership), or other entity, you must indicate under your signature your relationship to that entity. If you are served on behalf of another person and you are authorized to receive process, you must indicate under your signature your authority. If you do not complete and return the form to the sender within twenty days, you (or the party on whose behalf you are being served) may be required to pay any expenses incurred in serving a summons in any other manner permitted by law. If you do complete and return this form, you (or the party on whose behalf you are being served) must answer within thirty days. If you fail to do so, judgment by default will be taken against you for a relief demanded. I hereby certify that this Notice and Admission of Service was mailed on ________. __________ Signature __________ Date of Signature ADMISSION OF SERVICE OF SUMMONS/SUMMONS AND COMPLAINT Personal service of the enclosed Summons/Summons and Complaint is hereby admitted by receipt of copies thereof at ________, South Dakota, this ________ day of ________, 20____. __________ Signature __________ Relationship to Entity/ Authority to Receive Service of Process __________ Date of Signature Source: SL 1985, ch 159 , § 3. 15-6-5(a) . Service--When required. Except as otherwise provided in this chapter, every order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders because of numerous defendants, every written motion other than one which may be heard ex parte, and every written brief, notice, appearance, demand, offer of judgment, and similar paper shall be served upon each of the parties. No service need be made on parties in default for failure to appear except that pleadings asserting new or additional claims for relief against them shall be served upon them in the manner provided for service of summons in § 15-6-4. Source: SDC 1939 & Supp 1960, § 33.0819; SD RCP, Rule 5 (a), as adopted by Sup. Ct. Order Mar. 29, 1966, eff. July 1, 1966; SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2021, ch 253 (Supreme Court Rule 21-01), eff. Feb. 23, 2021; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023. 15-6-5(b) . Service--How made--Proof. (1) Unless otherwise ordered by the court or provided by rule, whenever this chapter requires or permits service to be made upon a party represented by an attorney, the service shall be made upon the attorney. (2) Unless otherwise ordered by the court, all documents filed with the court electronically through the Odyssey® system or served electronically through the Odyssey® system are presumed served upon all attorneys of record at the time of submission. (3) Documents not filed with the court may be served upon an attorney by any of the following methods: A. electronically through the Odyssey® system; B. by electronic mail, using the email address designated by the attorney or law firm for service, or if none, the email address published in the Membership Directory of the State Bar of South Dakota; C. by first class mail to the attorney’s last known address, which is complete upon mailing; D. by facsimile transmission subject to the following conditions: (i) the attorney upon whom service is made has the necessary equipment to receive such transmission; (ii) the attorney has agreed to accept service by facsimile transmission, or has served the serving party in the same case by facsimile transmission; and (iii) the time and manner of transmission comply with the requirements of § 15-6-6(a) , unless otherwise established by the Court; or E. by delivery to the attorney, or an employee of the attorney, at the attorney’s office. (4) An attorney’s certificate of service, the written admission of service by the party or his attorney, or an affidavit of service are sufficient proof of service. (5) Unless otherwise ordered by the court, service upon a party not represented by counsel must be made using one of the following methods: A. by delivery to the party or leaving it at the party’s dwelling house or usual place of abode with some person over the age of fourteen years then residing therein; B. by first class mail to the party’s last known address, which is complete upon mailing; or C. if no address is known, by leaving it with the clerk of the court. (6) The provisions of § 15-6-5 do not apply to the service of a summons or other process or of any paper to bring a party into contempt. Source: SDC 1939 & Supp 1960, § 33.0819; SD RCP, Rule 5 (b), as adopted by Sup. Ct. Order Mar. 29, 1966, eff. July 1, 1966; SL 1991, ch 424 (Supreme Court Rule 90-01); SL 1991, ch 446 (Supreme Court Rule 91-12); SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023. 15-6-5(c). Service on numerous defendants. In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross - claim, counterclaim or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs. Source: SDC 1939 & Supp 1960, § 33.0819; SD RCP, Rule 5 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2004, ch 328 (Supreme Court Rule 04-01), effective July 1, 2004. 15-6-5(d). Filing of papers--Originals--Copies. The original of all papers served upon a party or presented to any court or judge in support of any application or motion and including the summons, all pleadings, notices, demands, offers, stipulations, affidavits, written motions, briefs, memorandums of law, and orders shall, if not filed before service, be filed with the court, together with proof of such service, forthwith upon such service. The foregoing requirement of filing applies to the notice of filing of an order and the notice of entry of a judgment together with proof of service thereof, both of which shall be filed forthwith; if not filed within ten days after service thereof, the time of service shall be deemed to be the date of filing of the notice and proof of service. If papers are not to be served, they must be filed with the court at the time of their presentation to the court for any action or consideration. Any electronic version of any paper or document shall have the same force and effect as the original. A certified copy of an original made by electronic transmission shall have the same force and effect as a certified copy of an original. Source: SDC 1939 & Supp 1960, §§ 33.0107, 33.0802; SD RCP, Rule 5 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 4, 1972, effective Jan. 1, 1973; SL 1981, ch 379 ; SL 1991, ch 447 (Supreme Court Rule 91-13); SL 1992, ch 147 ; SL 1992, ch 366 (Supreme Court Rule 92-1); SL 1999, ch 275 ; SL 2000, ch 255 (Supreme Court Rule 00-1); SL 2004, ch 328 (Supreme Court Rule 04-01), effective July 1, 2004; SL 2014, ch 254 (Supreme Court Rule 13-12 ), eff. July 1, 2014; SL 2017, ch 224 (Supreme Court Rule 17-01), eff. Jan. 19, 2017. 15-6-5(e) . Definition--Filing with the court. Except as specifically exempted by these rules or court order, the filing of pleadings and other papers with the court as required by this chapter must be made through the Odyssey® electronic filing system with the clerk of the court. Self-represented parties may file electronically, but are not required to file electronically. Upon leave of court, an attorney required to file electronically may be granted leave of court to file paper documents with the clerk of court. The judge may permit a party to file papers with him or her, in which event the judge must note thereon the filing date and forthwith transmit them to the office of the clerk. Source: SDC 1939 & Supp 1960, § 33.0802; SD RCP, Rule 5 (e), as adopted by Sup. Ct. Order Mar. 29, 1966, effective July 1, 1966; SL 2004, ch 328 (Supreme Court Rule 04-01), effective July 1, 2004; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023. 15-6-5(f) . Repealed. Source: SL 1991, ch 448 (Supreme Court Rule 91-14); SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023. 15-6-5(g) . Documents not to be filed--Depositions. No depositions (except notices to take depositions), interrogatories, requests for documents, requests for admissions, and answers and responses thereto shall be filed with the clerk of the court except as provided in this section. Any such filing shall be made electronically in full-size print unless otherwise ordered by the court. Any exhibits to such documents shall be clearly identified and included as a separate electronic file or hyperlinked within the transcript file. Any discovery materials necessary for the disposition of any motion filed with the court or referenced in any filing with the court shall be attached as an exhibit to the party's motion or as an exhibit to a declaration, affidavit, or other similar filing. Financial account information filed with the court as an exhibit under this section shall be confidential pursuant to §§ 15-15A-8 and 15-15A-9 , and shall remain confidential unless and until access is granted by the court under § 15-15A-10 . If any party designated any or all of any deposition as evidence to be offered in the trial of any case, such deposition shall be filed in electronic format in its entirety with the clerk of the court at the same time as that party's designation. Depositions used by a party only for the purpose of contradicting or impeaching the testimony of deponent as a witness, pursuant to subdivision 15-6-32(a) (1), shall not be filed unless otherwise ordered by the judge presiding at the hearing or trial. All depositions which have been read or offered into evidence by agreement of parties, or at the trial or submission of the case to the court, shall become a permanent part of the file. Source: SL 1997, ch 304 (Supreme Court Rule 97-1); SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2005, ch 289 (Supreme Court Rule 05-03), eff. Feb. 25, 2005; SL 2006, ch 275 (Supreme Court Rule 06-01), eff. July 1, 2006; SL 2017, ch 225 (Supreme Court Rule 17-02), eff. Jan. 19, 2017; SL 2018, ch 294 (Supreme Court Rule 18-03), eff. July 1, 2018; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023. 15-6-5(h) . Civil Case Filing Statements. Whenever a party or an attorney representing a party commences a civil action, files a notice of appearance, or files an answer or first responsive pleading in a civil action, the party or attorney representing the party shall file a completed civil case filing statement containing identifying information available to that party or attorney regarding all parties, including the adverse party, with the clerk of the court. A statement must also be filed whenever a new party is added to the action. The statement shall be available from the clerk or online at the Unified Judicial System's website. The identifying information for the filing party must be submitted on the filing statement. If the party or attorney representing a party is unable to provide the required information for the filing party, he or she may seek a waiver from the judge assigned to the action. After the information is recorded in the Unified Judicial System docketing system, the filing statement may be destroyed or kept by the clerk of the court in a nonpublic file for internal record management use by the Unified Judicial System. Access to the filed statement will only be available to court personnel or by court order. Source: SL 2004, ch 321 (Supreme Court Rule 03-20), eff. Jan. 1, 2004; SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023. 15-6-5(i) . Service of discovery requests by electronic mail or portable storage media device--Costs. Any party or attorney serving discovery requests pursuant to § 15-6-31 , § 15-6-33 , § 15-6-34 or § 15-6-36 shall also, upon receipt of a written request, serve those items on the opposing party or attorney by electronic mail or on a portable storage media device. Failure to comply with such a request shall not make service invalid or extend the time to file a response, but the court shall order payment of the actual costs of reproducing the item and may award such other terms as it deems proper under § 15-6-37 unless good cause for failure to comply with the request is shown. Source: SL 2004, ch 328 (Supreme Court Rule 04-01), eff. July 1, 2004; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023. 15-6-5(j) . Repealed. Source: SL 2009, ch 284 (Supreme Court Rule 09-05), eff. July 1, 2009; SL 2023, ch 213 (Supreme Court Rule 22-12), eff. Jan. 1, 2023. 15-6-6. Time 15-6-6(a). Computation of time. In computing any period of time prescribed or allowed by this chapter, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday or a legal holiday or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than eleven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule, "legal holiday" includes those holidays listed in § 1-5-1 . Service by facsimile, electronic mail transmission, and through the Odyssey 7 electronic filing system must be completed by 11:59 p.m. central standard time or daylight savings time as applicable, on a weekday, which is not a legal holiday, or service shall be deemed to be made on the following weekday, which is not a legal holiday. Source: SD RCP, Rule 6(a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1991, ch 425 (Supreme Court Rule 90-02); SL 2006, ch 276 (Supreme Court Rule 06-02), eff. July 1, 2006; SL 2009, ch 280 (Supreme Court Rule 09-01), eff. July 1, 2009; SL 2019, ch 220 (Supreme Court Rule 18-14), eff. July 1, 2018. 15-6-6(b). Enlargement of time. When by this chapter or by a notice given thereunder or by an order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion: (1) With or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (2) Upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect but it may not extend the time for taking any action under §§ 15-6-50(b), 15-6-59(b) and (d), and 15-6-60(b), except to the extent and under the conditions stated in them. Source: SDC 1939 & Supp 1960, § 33.0108; SD RCP, Rule 6 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-6(c). Superseded 15-6-6(d). Time for motion--Affidavits--Briefs. A written motion, other than one which may be heard ex parte and notice of the hearing thereof or an order to show cause shall be served not later than ten days before the time specified for the hearing, unless a different period is fixed by this chapter or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit or brief, the affidavit or brief shall be served with the motion and, except as otherwise provided in § 15-6-59(b), opposing affidavits or briefs may be served not later than five days before the hearing, unless the court permits them to be served at some other time. A reply brief or affidavit may be served by the movant not later than two days before the hearing, unless the court permits them to be served at some other time. Source: SDC 1939 & Supp 1960, § 33.1001; SD RCP, Rule 6 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 277 (Supreme Court Rule 06-03), eff. July 1, 2006. 15-6-6(e). Additional time after service by mail--Facsimile and electronic mail transmission service exempt. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him, or whenever such service is required to be made a prescribed period before a specified event, and the notice or paper is served by mail, three days shall be added to the prescribed period. Service by facsimile or electronic mail transmission shall not be deemed service by mail for purposes of this section. Source: SDC 1939 & Supp 1960, § 33.0820; SD RCP, Rule 6 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1991, ch 426 (Supreme Court Rule 90-03); SL 2009, ch 281 (Supreme Court Rule 09-02), eff. July 1, 2009. 15-6-7. Pleadings allowed--form of motions 15-6-7(a). Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross - claim, if the answer contains a cross - claim; a third - party complaint, if a person who was not an original party is summoned under the provisions of § 15-6-14 ; and a third - party answer, if a third - party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third - party answer. Source: SDC 1939 & Supp 1960, § 33.0901; SD RCP, Rule 7 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-7(b). Motions and other papers. (1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. (2) The rules applicable to captions, signing, and other matters of form of pleadings apply to all motions and other papers provided for by this chapter. (3) Exhibits and other attachments to motions are subject to the provisions of Rule 11 and the protective provisions of § 15-6-26(c). Source: SDC 1939 & Supp 1960, § 33.1001; SD RCP, Rule 7 (b), as adopted by Supp. Ct. Order March 29, 1966, effective July 1, 1966; SL 2001, ch 295 (Supreme Court Rule 01-03); SL 2006, ch 278 (Supreme Court Rule 06-04), eff. July 1, 2006. 15-6-7(c). Demurrers, pleas, and exceptions abolished. Demurrers, pleas, and exceptions for insufficiency of a pleading shall not be used. Source: SDC 1939 & Supp 1960, § 33.0902; SD RCP, Rule 7 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-8. General rules of pleading 15-6-8(a). Claims for relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross - claim, or third - party claim, shall contain: (1) A short and plain statement of the claim showing that the pleader is entitled to relief; and (2) A demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded. Source: SDC 1939 & Supp 1960, § 33.0903; SD RCP, Rule 8 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-8(b). Defenses--Form of denials. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder. Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, he may do so by general denial subject to the obligations set forth in § 15-6-11 . Source: SDC 1939 & Supp 1960, § 33.0904; SD RCP, Rule 8 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-8(c). Defenses--Form of denials. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. Source: SDC 1939 & Supp 1960, § 33.0905; SD RCP, Rule 8 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-8(d). Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. Source: SDC 1939 & Supp 1960, § 33.0906; SD RCP, Rule 8 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-8(e). Pleading to be concise and direct--Consistency. (1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. (2) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both. All statements shall be made subject to the obligations set forth in § 15-6-11 . Source: SDC 1939 & Supp 1960, § 33.0908; SD RCP, Rule 8 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-8(f). Construction of pleadings. All pleadings shall be so construed as to do substantial justice. Source: SDC 1939 & Supp 1960, § 33.0915; SD RCP, Rule 8 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-9. Pleading special matters 15-6-9(a). Pleading capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a corporation or organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-9(b) . Pleading fraud, mistake, condition of the mind. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-9(c). Pleading conditions precedent. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity. Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-9(d). Pleading official document or act. In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law; and in pleading any statute or ordinance, it is sufficient to refer to the statute by its number and the ordinance by its title or number and the date of its approval. Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-9(e). Pleading judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi - judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-9(f). Pleading time and place. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter. Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (f), as adopted by Supp. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-9(g). Pleading special damage. When items of special damage are claimed, they shall be specifically stated. Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-9(h). Unknown party--How designated in pleadings and process. When a party is ignorant of the name of an opposing party and so alleges in his pleading, the opposing party may be designated by any name, and when his true name is discovered the process and all pleadings and proceedings in the action shall be amended by substituting the true name. Source: SDC 1939 & Supp 1960, § 33.0401; SD RCP, Rule 9 (h), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-9(i). Complaint in action for libel or slander. In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose, but it shall be sufficient to state generally that the same was published or spoken concerning the plaintiff, and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken. Source: SDC 1939 & Supp 1960, § 33.0910; SD RCP, Rule 9 (i), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-10. Form of pleadings 15-6-10(a). Caption--Names of parties. Every pleading shall have a caption setting forth the name of the court and the county in which the action is brought, the title of the action, and a designation as in § 15-6-7(a). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. Source: SDC 1939 & Supp 1960, § 33.0908; SD RCP, Rule 10 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-10(b). Paragraphs--Separate statements. All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. Source: SDC 1939 & Supp 1960, § 33.0908; SD RCP, Rule 10 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-10(c). Adoption by reference--Exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes. Source: SDC 1939 & Supp 1960, § 33.0908; SD RCP, Rule 10 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-10(d). Roman numerals--Use--Restrictions. Roman numerals may not be used to number paragraphs in pleadings. The use of Roman numerals in pleadings is restricted to use in conjunction with persons' names and in lower case use in prefaces, forewords, prologues, and epilogues. Source: SL 1998, ch 310 . 15-6-10(e). Formatting of pleadings. All pleadings, motions, orders and other papers filed with the court, with the exception of exhibits, shall be typewritten or hand printed in a clear and legible manner, no smaller than 12 point type; on one side only of white, unglazed, opaque paper of good texture, eight and one-half inches wide and eleven inches long; and consecutively numbered at the bottom center of each page. Source: SL 2013, ch 267 , § 1 (Supreme Court Rule 13-06), eff. Feb. 14, 2013. 15-6-11. Signing of Pleadings 15-6-11(a). Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. Source: SDC 1939 & Supp 1960, § 33.0909; SD RCP, Rule 11, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1986, ch 160 , § 1; SL 2001, ch 296 (Supreme Court Rule 01-04); SL 2006, ch 279 (Supreme Court Rule 06-05), eff. July 1, 2006. 15-6-11(b). Representations to court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) It is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. Source: SDC 1939 & Supp 1960, § 33.0909; SD RCP, Rule 11, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1986, ch 160 , § 1; SL 2001 ch 297 (Supreme Court Rule 01-05); SL 2006, ch 280 (Supreme Court Rule 06-06), eff. July 1, 2006. 15-6-11(c). Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that § 15-6-11(b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated § 15-6-11(b) or are responsible for the violation. (1) How Initiated. (A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate § 15-6-11(b). It shall be served as provided in § 15-6-5, but shall not be filed with or presented to the court unless, within twenty-one days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney's fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees. (B) On Court's Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate § 15-6-11(b) and directing an attorney, law firm, or party to show cause why it has not violated § 15-6-11(b) with respect thereto. (2) Nature of Sanctions; Limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation. (A) Monetary sanctions may not be awarded against a represented party for a violation of § 15-6-11(b)(2). (B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned. (3) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed. Source: SDC 1939 & Supp 1960, § 33.0909; SD RCP, Rule 11, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1986, ch 160 , § 1; SL 2006, ch 281 (Supreme Court Rule 06-07), eff. July 1, 2006. 15-6-11(d). Inapplicability to discovery. Sections 15-6-11(a) through 15-6-11(c) do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of §§ 15-6-26 through 15-6-37 . Source: SDC 1939 & Supp 1960, § 33.0909; SD RCP, Rule 11, as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1986, ch 160 , § 1; SL 2006, ch 282 (Supreme Court Rule 06-08), eff. July 1, 2006. 15-6-11(e). Appeal to Supreme Court--Award of attorneys' fees and costs on appeal. The Supreme Court shall consider all appeals pursuant to §§ 15-6-11(a) through 15-6-11(d) without any presumption of the correctness of the trial court's findings of fact and conclusions of law. Reasonable attorneys' fees and costs shall be awarded to the successful party on appeal. Source: SL 2006, ch 283 (Supreme Court Rule 06-09), eff. July 1, 2006. 15-6-12. Defenses and objections 15-6-12(a). Time for presenting defenses and objections. A defendant shall serve the answer within thirty days after the service of the complaint upon defendant, except when otherwise provided by statute or rule. A party served with a pleading stating a cross-claim shall serve an answer within twenty days after the service. The plaintiff shall serve a reply to a counterclaim in the answer within twenty days after service of the answer or, if a reply is ordered by the court, within twenty days after service of the order, unless the order otherwise directs. The service of a motion permitted under § 15-6-12 alters these periods of time as follows, unless a different time is fixed by order of the court: (1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten days after notice of the court's action; (2) If the court grants a motion for a more definite statement, the responsive pleading shall be served within ten days after the service of the more definite statement; (3) If an appeal is taken from an order sustaining a motion to dismiss and such order is thereafter reversed, the responsive pleading shall be served within twenty days after the judgment or order of reversal is filed in the trial court. Source: SDC 1939 & Supp 1960, § 33.0907; SD RCP, Rule 12 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 284 (Supreme Court Rule 06-10), eff. July 1, 2006. 15-6-12(b). Manner of presenting defenses and objections. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter; (2) Lack of jurisdiction over the person; (3) Insufficiency of process; (4) Insufficiency of service of process; (5) Failure to state a claim upon which relief can be granted; (6) Failure to join a party under § 15-6-19 . A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in § 15-6-56 , and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by § 15-6-56 . Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 2006, ch 285 (Supreme Court Rule 06-11), eff. July 1, 2006. 15-6-12(c). Motion for judgment on the pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in § 15-6-56 , and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by § 15-6-56 . Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-12(d). Preliminary hearings. The defenses specifically enumerated in subdivisions 15-6-12(b)(1) to (6), whether made in a pleading or by motion, and the motion for judgment mentioned in § 15-6-12(c) shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial. Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-12(e). Motion for more definite statement. If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing his responsive pleading. The motion shall point out the defects complained of and the details desired. If the motion is granted and the order of the court is not obeyed within ten days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such order as it deems just. Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 2006, ch 286 (Supreme Court Rule 06-12), eff. July 1, 2006. 15-6-12(f). Motion to strike. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within twenty days after the service of the pleading upon him or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-12(g). Consolidation of defenses in motion. A party who makes a motion under § 15-6-12 may join with it any other motions herein provided for and then available to him. If a party makes a motion under § 15-6-12 but omits therefrom any defense or objection then available to him which § 15-6-12 permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision 15-6-12(h)(2) on any of the grounds there stated. Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969. 15-6-12(h). Waiver or preservation of certain defenses. (1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in § 15-6-12(g), or (B) if it is neither made by motion under § 15-6-12 nor included in a responsive pleading or an amendment thereof permitted by § 15-6-15(a) to be made as a matter of course. (2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under § 15-6-19 , and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under § 15-6-7(a), or by motion for judgment on the pleadings, or at the trial on the merits. (3) Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action. Source: SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (h), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969. 15-6-13. Counterclaim and cross-claim 15-6-13(a). Compulsory counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if: (1) At the time the action was commenced the claim was the subject of another pending action; or (2) The opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under § 15-6-13 ; or (3) If the claim is not one over which the court would have jurisdiction if brought as an original action. Source: SDC 1939 & Supp 1960, § 33.0911; SD RCP, Rule 13 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-13(b). Permissive counterclaims. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject matter of the opposing party's claim. Source: SDC 1939 & Supp 1960, § 33.0911; SD RCP, Rule 13 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-13(c). Counterclaim exceeding opposing claim. A counterclaim may or may not diminish or defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the pleading of the opposing party. Source: SD RCP, Rule 13 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-13(d). Counterclaim against the State of South Dakota. This chapter shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the State of South Dakota or an officer or agency thereof. Source: SD RCP, Rule 13 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-13(e). Counterclaim maturing or acquired after pleading. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by a supplemental pleading. Source: SD RCP, Rule 13 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-13(f). Omitted counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment. Source: SD RCP, Rule 13 (f), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-13(g). Cross - claim against co - party. A pleading may state as a cross - claim any claim by one party against a co - party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross - claim may include a claim that the party against whom it is asserted is or may be liable to the cross - claimant for all or part of a claim asserted in the action against the cross - claimant. Source: SDC 1939 & Supp 1960, § 33.0912; SD RCP, Rule 13 (g), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-13(h). Joinder of additional parties. Persons other than those made parties to the original action may be made parties to a counterclaim or cross - claim in accordance with the provisions of §§ 15-6-19 and 15-6-20 . Source: SD RCP, Rule 13 (h), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969. 15-6-13(i). Separate trials--Separate judgments. If the court orders separate trials as provided in § 15-6-42(b) judgment on counterclaim or cross - claim may be rendered in accordance with the terms of § 15-6-54(b), when the court has jurisdiction so to do, even if the claims of the opposing parties have been dismissed or otherwise disposed of. Source: SD RCP, Rule 13 (i), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 1. 15-6-14. Third-party practice 15-6-14(a). When defendant may bring in third party. At any time after commencement of the action a defending party, as a third - party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. The third - party plaintiff need not obtain leave to make the service if he serves the third - party complaint not later than ten days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and third - party complaint, hereinafter called the third - party defendant, shall make his defenses to the third - party plaintiff's claim as provided in § 15-6-12 and his counterclaims against the third - party plaintiff and cross - claims against other third - party defendants as provided in § 15-6-13 . The third - party defendant may assert against the plaintiff any defenses which the third - party plaintiff has to the plaintiff's claim. The third - party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third - party plaintiff. The plaintiff may assert any claim against the third - party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim against the third - party plaintiff, and the third - party defendant thereupon shall assert his defenses as provided in § 15-6-12 and his counterclaims and cross - claims as provided in § 15-6-13 . Any party may move to strike the third - party claim, or for its severance or separate trial. A third - party defendant may proceed under § 15-6-14 against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third - party defendant. The court may render such judgments, one or more in number, as may be suitable. As among joint tort - feasors against whom a judgment has been entered in a single action, the provisions of § 15-8-15 apply only if the issue of proportionate fault is litigated between them by cross - claim, counterclaim, or third - party claim in that action. Source: SL 1945, ch 167 , § 7; SDC Supp 1960, § 33.04A08; SD RCP, Rule 14 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 1976, ch 147 . 15-6-14(b). When plaintiff may bring in third party. When a counterclaim is asserted against a plaintiff, he may cause a third party to be brought in under circumstances which under § 15-6-14(a) would entitle a defendant to do so. Source: SL 1945, ch 167 , § 7; SDC Supp 1960, § 33.04A08; SD RCP, Rule 14 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-15. Amended and supplemental pleadings 15-6-15(a). Amendments to pleadings. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has neither been placed upon the trial calendar, nor an order made setting a date for trial, he may so amend it at any time within twenty days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders. Source: SDC 1939 & Supp 1960, § 33.0914; SD RCP, Rule 15 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-15(b). Amendments to conform to the evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence. Source: SDC 1939 & Supp 1960, § 33.0914; SD RCP, Rule 15 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. 15-6-15(c). Relation back of amendments to pleadings. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment: (1) Has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and (2) Knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him. Source: SD RCP, Rule 15 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969. 15-6-15(d). Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor. Source: SDC 1939 & Supp 1960, § 33.0913; SD RCP, Rule 15 (d), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.