RULES OF CIVIL PROCEDURE
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15-6-4(a). Summons – Form.
The summons shall be legibly subscribed by the plaintiff or his attorney and directed to the defendant, and shall require him to answer the complaint and serve a copy of his answer on the subscriber at a place in the state to be specified in which there is a post office 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. See Cal Code Civ Proc, § 407.
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 Sup. Ct. Order March 29, 1966, effective July 1, 1966; SL 1979, ch 147, § 1; 1994, ch 155; 1999, ch 102, § 1. See Cal Code Civ Proc, § 410.
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:
- If the action be against a domestic private corporation, on the president or other head of the corporation, secretary, cashier, treasurer, a director, or managing or registered agent thereof, and such service may be made within or without this state. In case the sheriff shall return the summons with his certificate that no such officer, director, or agent can conveniently be found in his county, service may be made by leaving a copy of the summons and complaint at any office of such corporation within this state, with the person in charge of such office;
- If the action be against a foreign private corporation, on the president or other head of the corporation, secretary, cashier, treasurer, a director or managing agent thereof; but such service can be made as to a foreign corporation only when it has property in this state, or the cause of action arose therein, or when such service shall be made within this state personally upon the president, treasurer, secretary, or authorized agent for the service of process;
- In an action against a railroad corporation or against a person, firm, or corporation operating an elevator or licensed warehouse in this state, service may be made by serving any of the persons mentioned in subparagraphs (1) and (2) of this subsection, or by service upon any acting ticket, station, or freight agent of a railroad company or upon any acting agent in charge of any such elevator or warehouse, in the county where the action or proceeding is commenced;
- If the action be against a public corporation within this state, service may be made as follows:
- Upon a county, by serving upon any county commissioner;
- Upon a first or second class municipality, by serving upon the mayor or any alderman or commissioner;
- Upon a third class municipality, by serving upon any trustee;
- Upon an organized township, by serving upon any supervisor; and
- Upon any school district, by serving upon any member of the school board or board of education;
- If the action be against a minor, upon a parent or person having custody, and if the minor be over the age of fourteen years, then also upon such minor personally, and in any event upon the legally appointed guardian or conservator, if there be one. If a guardian ad litem has been appointed, such service shall also be made on such guardian ad litem;
- If the action be 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;
- If 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;
- If the action be 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);
- 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;
- In all other cases, to the defendant personally; and
- If the action be against a business with a fictitious name, upon the owner or other head of the business, secretary, cashier, treasurer, director, manager or bookkeeper thereof, and such service may be made within or without this state.
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; 1986, ch 159; 1992, ch 60, § 2; 1993, ch 213, § 87.
See Cal Code Civ Proc, § 411.
15-6-4(e). Substituted personal service of summons authorized.
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 his dwelling house in the presence of a member of his family over the age of fourteen years or if the defendant resides in the family of another, with a member of such age of the family with which he resides. If the defendant is a private corporation and no general officer, director, managing agent, or other representative mentioned in § 15-6-4(d) as qualified to receive service can conveniently be found, service may be made on such corporation by leaving a copy at the place of business of such qualified person with any officer or employee over fourteen years of age. Source: SDC 1939 & Supp 1960, § 33.0808; SD RCP, Rule 4 (e), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966. See Cal Code Civ Proc, § 411.
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:
- If served by a sheriff or a county constable, his certificate thereof;
- If by any other person, his affidavit thereof;
- The written admission of the party or his representative upon whom service might have been made for such party;
- 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
- 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 147, § 2; 1985, ch 159, § 2.
See Cal Code Civ Proc, § 415.
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.
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
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 _.
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.
Relationship to Entity/ Authority to Receive Service of Process
Date of Signature Source: SL 1985, ch 159, § 3.
15-6-45 – Supoena
15-6-45(a). Subpoena for attendance of witnesses – Form – Issuance.
Clerks of courts, judges, magistrates, notaries public, referees, and any other public officer or agency so empowered by § 1-26-19.1 or otherwise authorized by law in any matter pending before them, upon application of any person having a cause or any matter pending in court or before such agency, officer or tribunal, may issue a subpoena for a witness or witnesses.
Any attorney of record who has been duly admitted to practice in this state and is in good standing upon the active list of attorneys of the State Bar of South Dakota may issue a subpoena for a witness or witnesses, and for production, inspection and copying of records and exhibits, in any action or proceeding, or collateral hearing, civil or criminal, in which he is the attorney of record for any party. When an attorney issues a subpoena, he must forthwith transmit a copy thereof to the clerk of the court, or to the secretary or other filing officer of the board or tribunal in which the matter is pending, for filing. Such officer shall file such copy as one of the public records of the action or proceeding. A subpoena shall state the name of the court, or tribunal, the title of the action or proceeding, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. It shall state the name of the person or party for whom the testimony of the witness is required. The seal of the court or officer, or tribunal, shall be affixed to the original and all copies, if issued by a court or officer having a seal. If the subpoena is issued by an attorney, it shall be issued in the name of the presiding officer of the court, or tribunal in which the matter is pending and shall be attested and signed by the attorney, designating the party for whom he is attorney of record. Source: SDC 1939 & Supp 1960, §§ 36.0301, 36.0302; SD RCP, Rule 45(a), as adopted by Sup.Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 12.
15-6-45(b). Subpoena for production of documentary evidence.
A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may
- quash or modify the subpoena if it is unreasonable and oppressive or
- condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.
Source: SDC 1939 & Supp 1960, § 36.0302; SD RCP, Rule 45 (b), as adopted by Sup.Ct. Order March 29, 1966, effective July 1, 1966.
15-6-45 (c). Service of subpoena.
The subpoena may be served by any officer or person qualified to make service of a summons. The subpoena shall be served in the same manner as a summons is served, excepting that no service by publication is authorized. The subpoena must be served sufficiently in advance of the date upon which the appearance of the witness is required to enable such witness to reach such place by any ordinary or usual method of transportation which he may elect.
At the time of service of a subpoena, there shall be tendered to or on behalf of the person therein named the fees for one day’s attendance and the mileage allowed by law. The fact of such payment, or the signed waiver thereof by the person named in the subpoena, shall be stated in the return. If such fees and mileage be not paid or waived, the witness shall not be obliged to obey the subpoena.
At the commencement of each day after the first day, a witness under subpoena may demand his fees for that day’s attendance, and if the same is not paid, he shall not be required to remain.
When the subpoena is issued on behalf of the State of South Dakota or its political subdivisions or an officer or agency thereof, fees and mileage need not be tendered. Source: SDC 1939, §§ 36.0301, 36.0401; SL 1955, ch 134; SD RCP, Rule 45 (c), as adopted by Sup.Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 13.
15-6-45(d). Subpoena for taking depositions – Place of examination.
- Proof of service of a notice to take a deposition as provided in §§ 15-6-30(b) and 15-6-31(a) constitutes a sufficient authorization for the issuance by any person specified in § 15-6-45(a) or by the clerk of courts of the county in which the deposition is to be taken of subpoenas for the persons named or described therein. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by § 15-6-26(b), but in that event the subpoena will be subject to the provisions of §§ 15-6-26 (c) and 15-6-45(b).
The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than ten days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.
- A resident of this state may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the court. A nonresident of this state may be required to attend only in the county wherein he is served the subpoena, or at such other convenient place as is fixed by an order of the court.
Source: SDC 1939 & Supp 1960, §§ 36.0303, 36.0402; SD RCP, Rule 45(d), as adopted by Sup.Ct. Order March 29, 1966, effective July 1, 1966; Supreme Court Rule 76-3, § 14.
15-6-45(e). Superseded. Superseded.
15-6-45(f). Failure to obey subpoena as contempt.
Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court wherein the action is pending or of a court from which the subpoena may have been issued.
Source: SD RCP, Rule 45(f), as adopted by Sup.Ct. Order March 29, 1966, effective July 1, 1966.
15-6-45(g). Nonresident of state served with subpoena in state.
A nonresident of this state who is served with subpoena in this state shall be required to obey the same; provided, that the mileage required to be paid such witness as provided in § 15-6-45 (c) shall be computed from the place of service of the subpoena to the place of attendance. Source: SDC 1939 & Supp 1960, § 36.0403; SD RCP, Rule 45(g), as adopted by Sup.Ct. Order March 29, effective July 1, 1966; Supreme Court Rule 76-3, § 15.