Title 21 — JUDICIAL REMEDIES

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.

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…

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 …

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, § 37.0…

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 inval…

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.

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, a…

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 m…

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 …

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 plai…

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…

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 juris…

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.

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, § 1…

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 justif…

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 f…

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 disc…

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.

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…

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…

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 s…

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 amou…

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…

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 …

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…

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, …

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 speci…

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 deliver…

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 retur…

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 o…

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 i…

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 …

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 …

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, § 18…

Section 15-9-17 does not apply to any publication required under this section. Source: SL 2020, ch 74 , § 2.

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, afte…

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, …

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 …

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.

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.

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…

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 19…

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.

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 se…

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 loc…

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 defen…

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 juror…

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 1…

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.

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 t…