Title 21, JUDICIAL REMEDIES

Whenever, by the provisions of law, any property, real or personal, shall be forfeited to the state, or to any officer for its use, an action for the recovery of such property, alleging the ground of the forfeiture, may be brought by the state's attorney in the circuit court for …

When the action described by § 21-28-1 is prosecuted by the state's attorney, the State of South Dakota shall be plaintiff; when it is prosecuted by a private person, such person shall be the plaintiff therein and the proceedings in such action shall be the same as in an action b…

When an action shall be brought by the state's attorney by virtue of this chapter, on the relation or information of a person having an interest in the question, the name of such person shall be joined with the state as relator, and in every such case the state's attorney may req…

Where several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise. Source: CCivP 1877, § 541; CL 1887, § 5355; RCCivP 1903, § 580; RC 1919, § 2791; Su…

Whenever such action shall be brought against a person for usurping an office, the state's attorney or person having a special interest in the action, in addition to the statement of the cause of action, may also set forth in the complaint, the name of the person rightfully entit…

In an action against a person for usurping an office, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office and by means of his usurpation thereof, an order may be granted by a judge of the court for the arrest of such defendant, and h…

In every such case judgment shall be rendered upon the right of the defendant, and also upon the right of the party alleged to be entitled as provided by § 21-28-6 , or only upon the right of the defendant, as justice shall require. Source: CCivP 1877, § 537; CL 1887, § 5351; RCC…

If the judgment be rendered upon the right of the person so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the…

The writ of mandamus may be issued by the Supreme and circuit courts, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of …

If an answer be made which raises a question as to a matter of fact essential to the determination of the motion, and affecting the substantial rights of the parties, and upon the supposed truth of which allegation the application for the writ is based, the court may, in its disc…

If no notice of a motion for a new trial be given or, if given, the motion be denied, the clerk, within five days after rendition of the verdict or denial of the motion, must transmit to the court in which the application for the writ is pending a certified copy of the verdict at…

If judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury or as may be determined by the court or referee, upon a reference to be ordered, together with costs; and for such damages and costs execution may issue; and a perempto…

The motion for a new trial must be made in the court in which the issue of fact is made. Source: CCivP 1877, § 702; CL 1887, § 5524; RCCivP 1903, § 771; RC 1919, § 3013; SDC 1939 & Supp 1960, § 37.4511.

When a peremptory mandamus has been issued and directed to any inferior tribunal, corporation, board, or person, if it appear to the court that any member of such tribunal, corporation, board, or any person upon whom the writ has been personally served, has, without just excuse, …

The writ of mandamus must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon affidavit, upon the application of the party beneficially interested. Source: CCivP 1877, § 696; CL 1887, § 5518; RCCivP…

The writ of mandamus may be either alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party, immediately upon the receipt of the writ, or at some other specified time, to do the act requir…

The writ of mandamus cannot be granted by default. The case must be heard by the court, whether the adverse party appear or not. Source: CCivP 1877, § 698; CL 1887, § 5520; RCCivP 1903, § 767; RC 1919, § 3009; Supreme Court Rule 611, 1939; SDC 1939 & Supp 1960, § 37.4503.

When the application for writ of mandamus to the court is made without notice to the adverse party, and the writ be allowed, the alternative writ must be first issued; but if the application be upon due notice, and the writ be allowed, the peremptory writ may be issued in the fir…

The writ of mandamus must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by order of the court. Service upon a majority of the members of any board or body is service upon the board or body, whether at the time of the service…

On the return of the alternative writ of mandamus, or the day on which the application for the writ is noticed, the party on whom the writ or notice has been served may show cause by answer, under oath, made in the same manner as an answer to a complaint in a civil action. Source…

If no answer be made, the case must be heard on the papers of the applicant. If the answer raises only questions of law, or puts in issue only immaterial statements, not affecting the substantial rights of the parties, the court must proceed to hear, or fix a day for hearing the …

On the trial the applicant is not precluded by the answer from any valid objection to its sufficiency and may countervail it by proof, either in direct denial or by way of avoidance. Source: CCivP 1877, § 701; CL 1887, § 5523; RCCivP 1903, § 770; RC 1919, § 3012; Supreme Court Ru…

The writ of prohibition is the counterpart of the writ of mandamus. It arrests the proceedings, administrative or judicial, of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or …

The writ of prohibition may be issued by the Supreme and circuit courts, to an inferior tribunal, or to a corporation, board, or person, in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. Source: CCivP 1877, § 709; CL 1887, § 5531;…

The writ of prohibition may be issued upon affidavit on application of the person beneficially interested. Source: CCivP 1877, § 709; CL 1887, § 5531; RCCivP 1903, § 778; RC 1919, § 3020; Supreme Court Rule 608, 1939; SDC 1939 & Supp 1960, § 37.4403.

The writ of prohibition must be alternative or peremptory. The alternative writ must state generally the allegation against the party to whom it is directed, and command such party to desist or refrain from further proceedings in the action or matter specified therein, until furt…

The provisions for proceedings in mandamus apply to this proceeding, except where inconsistent therewith. Source: CCivP 1877, § 711; CL 1887, § 5533; RCCivP 1903, § 780; RC 1919, § 3022; Supreme Court Rule 610, 1939; SDC 1939 & Supp 1960, § 37.4405.

A writ of certiorari may be granted by the Supreme and circuit courts, when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy. S…

A copy of the judgment, signed by the clerk, must be transmitted to the inferior court, tribunal, board, or officer, having the custody of the record or proceeding certified up. Source: CCivP 1877, § 693; CL 1887, § 5515; RCCivP 1903, § 762; RC 1919, § 3004; SDC 1939 & Supp 1960,…

The application for a writ of certiorari must be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ…

The writ of certiorari may be directed to the inferior court, tribunal, board, or officer, or to any other person having the custody of the records or proceedings to be certified. Source: CCivP 1877, § 687; CL 1887, § 5509; RCCivP 1903, § 756; RC 1919, § 2998; Supreme Court Rule …

The writ of certiorari shall command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, and annex to the writ a transcript of the record and proceedings, describing or referring to them, with convenient certainty, that …

If a stay of proceedings be not intended, the words requiring the stay must be omitted from the writ of certiorari; these words may be inserted or omitted, in the sound discretion of the court, but if omitted, the power of the inferior court or officer is not suspended or the pro…

The writ of certiorari must be served in the same manner as a summons in a civil action, except when otherwise expressly directed by the court. Source: CCivP 1877, § 690; CL 1887, § 5512; RCCivP 1903, § 759; RC 1919, § 3001; Supreme Court Rule 560, 1939; SDC 1939 & Supp 1960, § 3…

If the return of the writ of certiorari be defective the court may order a further return to be made. When a full return has been made the court must hear the parties, or such of them as may attend for that purpose, and may thereupon, give judgment either affirming or annulling o…

The review upon writ of certiorari cannot be extended further than to determine whether the inferior court, tribunal, board, or officer, has regularly pursued the authority of such court, tribunal, board, or officer. Source: CCivP 1877, § 691; CL 1887, § 5513; RCCivP 1903, § 760;…

A copy of the judgment, signed by the clerk, entered upon or attached to the writ and return, constitute the judgment roll. Source: CCivP 1877, § 694; CL 1887, § 5516; RCCivP 1903, § 763; RC 1919, § 3005; SDC 1939 & Supp 1960, § 37.0410.

There is hereby created the Office of Commissioner of Claims. The presiding circuit judge for the county in this state in which an alleged claim on contract or tort against the state has arisen shall appoint a circuit judge from the circuit for the county in which the action aros…

It shall be competent for any person deeming himself aggrieved by the refusal of the state auditor to allow any just claim against the state, to commence an action against the state by filing with the clerk of the Supreme Court in accordance with chapter 15-25 a complaint setting…

At the time a complaint is filed pursuant to § 21-32-10 , the plaintiff shall file an undertaking in the penal sum of five hundred dollars, with two or more sureties, to be approved by the state treasurer, to the effect that he will indemnify the state against all costs that may …

The plaintiff, within ten days after having filed the complaint and undertaking, pursuant to §§ 21-32-10 and 21-32-11 , shall serve a copy of the complaint upon the attorney general and the state auditor, together with a notice to plead or answer thereto within thirty days after …

The trial of such action shall be conducted in accordance with chapter 15-25 and any special rule or order made for trial of the particular case by the Supreme Court. Source: SL 1890, ch 1 , § 3; RCCivP 1903, § 27; RC 1919, § 2111; SDC 1939 & Supp 1960, § 33.0604.

No execution shall issue against the state on any judgment, but whenever final judgment against the state shall have been obtained in any action under §§ 21-32-10 to 21-32-13 , inclusive, the clerk of the Supreme Court shall make and furnish to the state auditor a duly certified …

The State of South Dakota, through the commissioner of human resources and administration, may obtain and pay for public liability insurance to the extent and for the purposes considered expedient by the commissioner for the purpose of insuring the liability of the state, its off…

To the extent such liability insurance is purchased pursuant to § 21-32-15 and to the extent coverage is afforded thereunder, the state shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may b…

Except as provided in § 21-32-16 , any employee, officer, or agent of the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individua…