Title 21, JUDICIAL REMEDIES

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 objec…

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 …

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…

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…

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 …

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. Sourc…

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 continu…

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.

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…

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.

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 a…

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 nece…

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 i…

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 t…

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 …

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 …

Nothing in this chapter precludes the granting of relief pursuant to chapter 21-8 . Source: SL 1983, ch 168 , § 32.

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 fi…

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 shal…

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.

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 …

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 su…

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.

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 defin…

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 § …

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 subscrib…

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…

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.

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…

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 1…

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, draf…

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…

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 1…

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 & S…

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 .

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.

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 s…

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 …

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 servi…

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 …

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 s…

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 Di…

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 …

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 1…

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…

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.