Title 21 — JUDICIAL REMEDIES

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.

The answer of the garnishee shall in all cases be conclusive of the truth of the facts therein stated, and if it denies liability the proceeding against such garnishee shall be deemed discontinued, unless the plaintiff shall within thirty days serve upon the garnishee a notice in…

The plaintiff may in all cases move the court upon the answer of the garnishee and of the defendant, if the defendant shall also answer, for such order as the plaintiff is entitled to thereon. Such order is not a bar beyond the facts stated in such answers. The plaintiff shall at…

In case the answer of the garnishee shall show indebtedness to the defendant, he may pay the amount thereof to the officer having a levy, or to the clerk of the court; and the officer to whom such payment is made shall give him a receipt specifying the facts and such receipt shal…

If the answer of the garnishee discloses any money, credits, or other property, real or personal, in the possession or under the control of the garnishee, the garnishee shall retain money, credits, or property in the garnishee's possession until the expiration of one hundred eigh…

The state auditor may, in the state auditor's discretion, at any time, pay to the clerk of courts of the county in which the action is brought any moneys that may be due to the principal defendant or the part thereof as was determined or due at the time of the service of the summ…

When the answer of the garnishee shall disclose that any other person than the defendant claims the indebtedness or property in his hands, and the name and residence of such claimant, the court may on motion order that such claimant be made a defendant to the garnishee action; an…

Upon service being made pursuant to § 21-18-35 such claimant shall be deemed a defendant in the garnishee action and within thirty days shall answer, setting forth his claim or any defense which the garnishee might have made. In case of default, judgment may be rendered which sha…

When an adverse claimant is made a garnishee defendant by notice as provided in this chapter and sets up an affirmative claim to the fund or property involved, any of the other parties to the garnishment may answer the same within thirty days after service thereof. Source: Suprem…

If no answer is made pursuant to § 21-18-37 , the claimant shall be entitled to default judgment as in ordinary cases of failure to answer. If issue be raised upon such claim, the court shall determine the order of trial and procedure at the commencement of the trial or upon moti…

If any garnishee, except the state, is summoned and fails to answer as required by this chapter, the court may render judgment against the garnishee for the amount of any judgment, including costs, which the plaintiff has recovered in the principal action, together with the costs…

Any number of garnishees may be embraced in the same affidavit, but if a joint liability is claimed against any, it shall be so stated, and the garnishee named as jointly liable shall be deemed jointly proceeded against; otherwise the several garnishees shall be deemed severally …

No judgment shall be entered against the State of South Dakota, nor shall any actual liability be incurred by the state in any garnishment proceeding. Any judgment entered against the principal defendant when the state is garnishee shall be paid only out of moneys due such princi…

In all cases where judgment is obtained against the principal defendant and if in the opinion of the court in which the action is pending there are funds under the control of the state treasurer subject to garnishment, the court shall direct in its order or judgment that the stat…

The principal defendant may in all cases by answer duly verified, to be served within thirty days from the service of the garnishee summons on him, defend the proceeding against any garnishee upon the ground that the indebtedness of the garnishee, or any property held by him, is …

The garnishee may defend the defendant if the latter does not, but is under no obligation so to do. Source: SL 1909, ch 156 , § 14; RC 1919, § 2466; SDC 1939 & Supp 1960, § 37.2820; SL 2016, ch 116 , § 15.

The proceedings against a garnishee shall be deemed an action by the plaintiff against the garnishee and defendant as parties defendant, and all provisions of law relating to proceedings in civil actions at issue, including examination of the parties, amendments, and relief from …

Any party to an issue in the garnishment proceeding shall be entitled to a jury trial in all cases where jury trials are allowed in ordinary civil actions. Source: SDC 1939 & Supp 1960, § 37.2824.

The court shall render such judgment in all cases as shall be just to all the parties, and properly protect their respective interests, and may adjudge the recovery of an indebtedness, the conveyance, transfer, or delivery to the sheriff, or any officer appointed by the judgment,…

The judgment against a garnishee shall acquit and discharge him from all demands by the defendant, or his representative, for all money, goods, effects, or credits paid, delivered, or accounted for by the garnishee by force of such judgment. Source: SL 1909, ch 156 , § 15; RC 191…

In case of the trial of an issue between the plaintiff and any garnishee, costs are awarded to the plaintiff and against the garnishee in addition to the garnishee's liability if the plaintiff recovers more than the garnishee admitted by the garnishee's answer; and if the plainti…

In all cases the garnishee shall be allowed the reasonable cost of the warehousing, storing, care, or keep of the property garnished in the hands of the garnishee. And the garnishee shall have a possessory lien on the property garnished until the same is paid. Source: SDC 1939, §…

The maximum part of the aggregate disposable earnings of a wage earner for any workweek which is subject to garnishment may not exceed the lesser of: (1) Twenty percent of disposable earnings for that week; (2) The amount by which disposable earnings for that week exceed forty ti…

The maximum part of the aggregate disposable earnings of an individual for any work week which is subject to garnishment to enforce any order for the support of any person may not exceed: (1) If the individual is supporting a spouse or dependent child other than a spouse or child…

The earnings of a debtor are exempt from process or levy only to the extent provided in §§ 21-18-51 and

The plaintiff shall annex or subjoin to the garnishment affidavit a garnishee summons, which shall be in substantially the following form: State of South Dakota, County of __________ ss. ________ Court A. B., Plaintiff, vs. C. D., Defendant, and E. F., Garnishee. The State of Sou…

The garnishee summons, affidavit, and garnishment disclosure shall be served on each of the several garnishees named, in the manner provided for service of a summons in an action, by certified mail, or by registered mail pursuant to §

If the state is a garnishee, the garnishee summons, affidavit, and garnishment disclosure shall be served on the state auditor or his deputy only. Source: SDC 1939 & Supp 1960, § 37.2805; SL 1966, ch 123 ; SL 1967, ch 150 ; SL 1988, ch 182 , § 2.

If a garnishee summons, affidavit, and garnishment disclosure is served, the garnishee shall be paid the sum of fifteen dollars to reimburse the garnishee for the expense of preparing the garnishment disclosure which sum shall be taxed as a part of plaintiff's costs. If the garni…

As used in this chapter unless the context otherwise plainly requires: (1) "Absolute exemptions" means property which, under chapters 43-31 and 43-45 , is absolutely exempt from levy; (2) "Additional exemptions" means additional property which may be claimed as exempt under chapt…

The claim of exemptions under § 21-19-9 shall set forth the facts relevant to such claim, and if the claimant does not reside within the county where the levy is made, must show the name and address of a person residing within such county on whom any paper may be served with the …

The claim of exemptions under § 21-19-9 must be verified by the claimant, if available, and if not, by the agent or attorney for the claimant with statement of the reasons why the verification was not made by the claimant. Source: CCivP 1877, § 326; SL 1885, ch 55 , § 1; CL 1887,…

Failure of a debtor or a dependent to make a claim of additional exemptions as provided in §§ 21-19-9 to 21-19-11 , inclusive, shall be deemed a waiver thereof by the debtor and his dependents unless and until relief from the default is granted. Source: SDC 1939 & Supp 1960, § 37…

Default in the making of a claim of exemptions may be relieved at any time while such levy remains in force upon notice to the creditor, and upon showing satisfactory to the court of reasonable excuse. Relief from such default shall not in any manner whatever affect the validity …

Except as to absolute exemptions no property shall be exempt unless claimed as exempt as provided in §§ 21-19-9 to 21-19-13 , inclusive. Source: CCivP 1877, § 326; SL 1885, ch 55 , § 1; CL 1887, § 5130; RCCivP 1903, § 355; RC 1919, § 2662; SDC 1939 & Supp 1960, § 37.4903.

Failure to claim absolute exemptions shall not constitute a waiver, and no rights whatsoever shall be acquired through or by any levy on property absolutely exempt. But proceedings may be had as provided by this chapter to reach under levy any part of the debtor's homestead which…

If the debtor or a dependent makes claim of exemptions, the officer must retain in his possession all property claimed as exempt until final determination of such claim. Source: SDC 1939 & Supp 1960, § 37.4910.

If claim for exemptions is made under §§ 21-19-9 to 21-19-13 , inclusive, the claimant may, upon three days' notice to the creditor, apply to the court for an order for immediate release from said levy of any property claimed as exempt in said claim, as to which property the valu…

Unless the creditor within three days of service on him of a claim under §§ 21-19-9 to 21-19-13 , inclusive, files and serves on the claimant an answer to such claim, the court shall forthwith and ex parte make an order allowing the exemptions as claimed and directing the release…

If the creditor disputes the facts as stated in the claim or questions the valuations of property as stated in such claim, he must, within three days of service upon him of such claim, file and serve on claimant an answer thereto. Such answer must specify the alleged facts in suc…

No levy shall be made on any homestead to reach the valuation thereof in excess of the homestead exemption set by subdivision 43-45-3(2), whether on attachment, execution, or other process, except as provided in this section. In the event the creditor claims such valuation exceed…

If the debtor is the owner of a homestead as defined by law, the creditor may take issue with the valuation thereof claimed by the debtor. If the debtor owns such homestead, but has not made a claim for exemptions, or has not valued such homestead in such claim, the creditor may …

In such answer or such demand as the case may be the creditor must designate one appraiser. The claimant must within three days after such service file and serve upon the creditor a designation of one appraiser. The two appraisers so selected must select a third appraiser, and if…

Upon the three appraisers being selected the court shall make an order specifying the property to be appraised. Such order shall specify for appraisal the items of property claimed as additional exemptions as to which items the creditor disputes the valuations alleged by the clai…

The three appraisers must thereupon, and as soon as may be, proceed with the appraisement of the property specified in the order to be appraised, which appraisement must be at the actual fair market value of each item at the place where situated as nearly as can be determined. Th…

Upon such appraisement being filed either the claimant or the creditor may bring such matter on for hearing upon reasonable notice to be fixed by the court. Upon such hearing the court shall determine the disputed questions of fact relevant to the debtor's right to be allowed exe…

At any time prior to final determination of any claim of exemptions, the court may, for good cause shown, allow amendments to any papers filed. Source: SDC 1939 & Supp 1960, § 37.4911.

If the claimant, on the basis of facts as shown by the claim and answer and as found by the court and on the basis of the valuations as determined, has not claimed as additional exemptions any more than allowed by law, the court shall order the same set aside and released from th…