In the state of South Dakota, no process server license is
required. Service may be done by any
of the following: a sheriff or a constable of the county or other comparable
political subdivision where the defendant may be found, in the District of
Columbia by the United States marshal or a deputy, 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 is a Native American residing on an Indian
reservation, the summons may be served by a individual not associated with the
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 signature an endorsement on the summons
fix a time for the service thereof, and the service shall be made accordingly.
Table of Contents
SOUTH
DAKOTA RULES OF CIVIL PROCEDURE:
SUMMONS - FORM.
SUMMONS SERVED WITHOUT COMPLAINT.
BY WHOM SUMMONS SERVED.
PERSONAL SERVICE OF SUMMONS.
SUBSTITUTED PERSONAL SERVICE
OF SUMMONS AUTHORIZED.
SERVICE UPON PARTY NOT A
RESIDENT OF OR FOUND WITHIN STATE.
PROOF OF SERVICE.
AMENDMENT OF PROCESS.
SERVICE BY MAIL - ADMISSION
OF SERVICE - COSTS.
FORM OF NOTICE AND ADMISSION
OF SERVICE BY MAIL.
SUBPOENA FOR ATTENDANCE OF
WITNESSES - FORM - ISSUANCE.
SUBPOENA FOR PRODUCTION OF
DOCUMENTARY EVIDENCE.
SERVICE OF SUBPOENA.
SUBPOENA FOR TAKING
DEPOSITIONS - PLACE OF EXAMINATION.
SUPERSEDED. SUPERSEDED.
15-6-45(F). FAILURE TO OBEY SUBPOENA AS CONTEMPT.
NONRESIDENT OF STATE SERVED
WITH SUBPOENA IN STATE.
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).
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).
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).
The summons shall be served by delivering a copy thereof. Service
in the following manner shall constitute personal service:
1.
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;
2.
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;
3.
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;
4.
If the action be
against a public corporation within this state, service may be made as follows:
a.
Upon a county, by
serving upon any county commissioner;
b.
Upon a first or
second class municipality, by serving upon the mayor or any alderman or
commissioner;
c.
Upon a third class
municipality, by serving upon any trustee;
d.
Upon an organized
township, by serving upon any supervisor; and
e.
Upon any school
district, by serving upon any member of the school board or board of education;
5.
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;
6.
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;
7.
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;
8.
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);
9.
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;
10.
In all other
cases, to the defendant personally; and
11.
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).
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).
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 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:
1.
If served by a
sheriff or a county constable, his certificate thereof;
2.
If by any other
person, his affidavit thereof;
3.
The written
admission of the party or his representative upon whom service might have been
made for such party;
4.
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
5.
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).
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).
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).
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 To: _____________________
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
_______________. __________________________________ Signature
__________________________________ 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__. __________________________________
Signature __________________________________ 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).
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).
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
1.
quash or modify
the subpoena if it is unreasonable and oppressive or
2.
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).
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).
1.
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.
2.
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).
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).
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.
In South Dakota, lobbyists and state officials are always active
in transforming laws concerning civil procedure. As a result, state information offered on our website may have
been amended recently. For contemporary
process serving and civil statutes, visit the official South Dakota Judicial
System Court website: http://www.sdjudicial.com/
