No execution for possession can be served except in the daytime.
Source: SL 1881, ch 87, § 2; CL 1887, § 6080; RJustC 1903, § 51; RC 1919, § 2178; SDC 1939 & Supp 1960, § 37.3908.
21-17A-1 Attachment by creditor. 21-17A-2 Issuance and direction of writ--Contents. 21-17A-3 Affidavit required for execution in debt action--Contents. 21-17A-4 Affidavit required for execution in tort action--Contents. 21-17A-5 Action and writ on demand not due--Grounds--Affidavit--Bond--Damages and costs
for defendant. 21-17A-6 Amendment of affidavit. 21-17A-7 Bond required of plaintiff--Amount--Terms--Affidavit of surety--Exemption of state
and subdivisions. 21-17A-8 Additional security--Application by defendant--Joint sureties. 21-17A-9 Return--Papers filed--Time allowed. 21-17A-10 Service on defendant--Appraisal--Inventory--Lien created--Multiple writs executed
on same property. 21-17A-11 Seizure of property. 21-17A-12 Real property attached by filing. 21-17A-13 Property subject to attachment--Personal property. 21-17A-14 Indemnification--Officer requiring. 21-17A-15 Sale of attached property--Grounds--Proceeds held in lieu of property. 21-17A-16 Keeping of property by officer--Collections--Legal proceedings. 21-17A-17 Defendant's bond for release from attachment--Justification of sureties. 21-17A-18 Copy of defendant's bond to plaintiff--Objection to sureties--Responsibility of
officer. 21-17A-19 Modification of writ--Notice of motion--Combining motions. 21-17A-20 Motion to quash writ and release property--Service of notice of motion. 21-17A-21 Contents of notice of motion--Affidavit--Grounds. 21-17A-22 Hearing on motion--Order of court. 21-17A-23 Basis of determination--Additional evidence--Continuance. 21-17A-24 Priority of hearing on motion to quash. 21-17A-25 Findings and order of court on hearing--Costs taxed--Damages assessed at trial. 21-17A-26 Judgment for damages to defendant. 21-17A-27 Delivery of property on judgment for defendant--Action on plaintiff's bond. 21-17A-28 Satisfaction of judgment for plaintiff--Delivery of remaining property. 21-17A-29 Plaintiff prosecuting actions officer authorized to bring--Indemnification of officer. 21-17A-30 Death of defendant--Satisfaction of judgment for plaintiff. 21-17A-31 Third party's property--Application for release. 21-17A-32 Injunction not precluded.
21-17A-1 . Attachment by creditor.
A creditor may attach the property of his debtor, in the cases, upon the conditions, and in the manner prescribed in this chapter.
Source: SL 1983, ch 168, § 1.
21-17A-2 . Issuance and direction of writ--Contents.
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 to attach all the property of the defendant within his county or so much thereof as may be sufficient to satisfy the plaintiff's demand, together with costs and expenses. It shall be in the name of the court and be sealed with its seal and signed by its judge.
Source: SL 1983, ch 168, § 2.
21-17A-3 . Affidavit required for execution in debt action--Contents.
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 the debt is due upon express or implied contract or upon a judgment, and that the affiant knows or has good reason to believe any of the following:
(1) The defendant is absent from this state, or is concealed here so that summons cannot be served on him;
(2) The defendant has disposed of or concealed or is about to dispose of or conceal his property or some part thereof with intent to defraud his creditors;
(3) The defendant has removed or is about to remove property from this state with intent to defraud his creditors;
(4) The defendant fraudulently incurred the obligation respecting which the action is brought;
(5) The defendant is not a resident of this state;
(6) The defendant is a foreign corporation, or, if domestic, that no officer or agent thereof on whom to serve the summons exists or resides in this state or can be found;
(7) The action is against a defendant as principal on an official bond to recover money due the state or to some political subdivision thereof, or that the action is against the defendant as principal upon a bond or other instrument given as evidence of debt for or to secure the payment of money embezzled or misappropriated by the defendant as an officer of the state or of a political subdivision thereof;
(8) The action is against a defendant to recover purchase money for personal property sold to the defendant, in which case the property shall be specifically described, if one of the conditions under subdivision (1), (5), or (9) of this section and one of the conditions under subdivision (2) or (3) of this section is also alleged;
(9) The defendant is about to remove his residence from the county where he resides with the intention of permanently changing it and fails or neglects on demand to give security for the debt upon which the action is commenced;
(10) The action is against the owner of any motor vehicle for damages alleged to have been caused by the negligence of such owner or his duly authorized agent, the motor vehicle alleged to have been driven, occupied or owned by a negligent driver or owner thereof, at the time of such accident, may be attached, if one of the conditions under subdivision (1) or (5) of this section and one of the conditions under subdivision (2) or (3) of this section is also alleged.
Source: SL 1983, ch 168, § 3.
21-17A-4 . Affidavit required for execution in tort action--Contents.
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 fifty dollars specifying the amount claimed and either:
(1) The defendant is not a resident of this state; or that his residence is unknown and cannot with due diligence be ascertained; or
(2) The defendant is a foreign corporation.
Source: SL 1983, ch 168, § 4.
21-17A-5 . Action and writ on demand not due--Grounds--Affidavit--Bond--Damages and costs for defendant.
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 shall be required as in actions upon matured demands except that the affidavit shall state that the debt is to become due. The bond specified in § 21-17A-7 shall be for three times the amount demanded. In case an attachment is issued before the maturity of the debt and a defense to such attachment is sustained the court shall render a judgment for damages and costs against the plaintiff.
Source: SL 1983, ch 168, § 5.
21-17A-6 . Amendment of affidavit.
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.
21-17A-7 . Bond required of plaintiff--Amount--Terms--Affidavit of surety--Exemption of state and subdivisions.
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 all costs that may be awarded to the defendant and all damages which he may sustain by reason of the attachment. The affidavit of the surety annexed to the bond shall state that he is a resident of this state and worth double the sum specified in the bond in property above his debts and exclusive of property exempt from execution. No bond is necessary if the state or a political subdivision is the plaintiff.
Source: SL 1983, ch 168, § 7.
21-17A-8 . Additional security--Application by defendant--Joint sureties.
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 sum as he may deem proper, not exceeding the appraised value of the property attached. The surety shall justify as provided in § 21-17A-7 , but if there is more than one surety they may be accepted if they are jointly responsible for the required sum.
Source: SL 1983, ch 168, § 8.
21-17A-9 . Return--Papers filed--Time allowed.
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.
21-17A-10 . Service on defendant--Appraisal--Inventory--Lien created--Multiple writs executed on same property.
The sheriff or constable shall without delay serve copies of the writ, affidavit and bond on the defendant in the same manner as the summons. In the case of a nonresident or a foreign corporation, the sheriff or constable shall serve such copies on any agent of the defendant in the county, if any are known to him. He shall cause all real and personal property or so much thereof as shall satisfy the writ to be appraised by two disinterested residents of the county, who shall be first sworn by him to make a true appraisal. The appraisal shall be signed by them and the appraisal and inventory shall be returned with the writ. Copies of the appraisal and inventory shall be served on the defendant. Service of the writ, affidavit and bond in the foregoing manner shall create a lien in favor of the attaching party, perfected without further action, for the amount of the plaintiff's or attaching party's demand, together with costs and expenses.
If two or more writs against the same defendant are executed on the same property, an inventory and appraisal shall be made for only one of the actions, and the sheriff or constable shall endorse on the copy served on the defendant in the other action a notice that the property attached is the property attached in the action in which the inventory and appraisal are made, giving the title of such action; and such officer shall state in his return the fact of such endorsement.
Source: SL 1983, ch 168, § 10.
21-17A-11 . Seizure of property.
At the time of service of a writ of attachment, the sheriff or constable shall seize, in his county, so much of the property of the defendant as will satisfy the demand of the plaintiff with costs and expenses.
Source: SL 1983, ch 168, § 11.
21-17A-12 . Real property attached by filing.
To attach real estate, the sheriff or constable shall file, in the office of the register of deeds, a copy of the writ with his certificate that by virtue of the original writ he has attached all the interest of the named defendant in such real estate, describing the property.
Source: SL 1983, ch 168, § 12.
21-17A-13 . Property subject to attachment--Personal property.
All the property of the defendant, not exempt from execution, may be attached. Personal property shall be attached as upon an execution and the provisions respecting the levy of an execution thereon are applicable to an attachment.
Source: SL 1983, ch 168, § 13.
21-17A-14 . Indemnification--Officer requiring.
If there is reasonable doubt as to the ownership of property or as to its liability to be attached, the sheriff or constable may require sufficient security from the plaintiff to indemnify him for attaching such property.
Source: SL 1983, ch 168, § 14.
21-17A-15 . Sale of attached property--Grounds--Proceeds held in lieu of property.
If any property taken on a writ of attachment is likely to depreciate in value before the end of the action or if the keeping thereof could cause much loss or expense, the court or a judge may order it sold in such manner as the best interests of the parties demand, and the money realized shall be held by the sheriff or constable in lieu of the property sold.
Source: SL 1983, ch 168, § 15.
21-17A-16 . Keeping of property by officer--Collections--Legal proceedings.
The sheriff or constable shall keep the property seized by him and the proceeds of such as shall have been sold to answer any judgment which may be recovered in such action; and shall, subject to the direction of the court or judge, collect and receive into his possession all the debts, credits and effects of the defendant. The sheriff or constable may also take such legal proceedings, either in his own name or in the name of the defendant, as may be necessary for that purpose and discontinue the same at such times and on such terms as the court or judge may direct.
Source: SL 1983, ch 168, § 16.
21-17A-17 . Defendant's bond for release from attachment--Justification of sureties.
The defendant may, at any time before judgment, deliver to the sheriff or constable who attached his property a corporate surety bond or a bond executed by two sureties, to the effect that they shall, on demand, pay to the plaintiff the amount of the judgment, with all costs, that may be recovered against the defendant in the action, not exceeding the sum specified in the bond with interest. The bond shall be in the amount alleged by the plaintiff to be due. The sureties shall justify as provided in § 21-17A-7 , and may be accepted if they are jointly responsible for the required sum.
Source: SL 1983, ch 168, § 17.
21-17A-18 . Copy of defendant's bond to plaintiff--Objection to sureties--Responsibility of officer.
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 objects to the sureties or he waives all objections to them. If the plaintiff objects, the sureties shall justify as provided in § 21-17A-7 . The sheriff or constable is responsible for the sufficiency of the sureties and may retain possession of the attached property until they justify, or until the objection is waived. Thereafter, the sheriff or constable shall deliver the property attached to the defendant. If real estate is attached, the sheriff or constable shall file a certificate of the discharge thereof in the office of the register of deeds. If judgment is for the plaintiff, all his costs and disbursements on the attachment shall be included in the judgment.
Source: SL 1983, ch 168, § 18.
21-17A-19 . Modification of writ--Notice of motion--Combining motions.
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 plaintiff's security under § 21-17A-8 .
Source: SL 1983, ch 168, § 19.
21-17A-20 . Motion to quash writ and release property--Service of notice of motion.
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 filing with the court and serving on the plaintiff a notice of motion.
Source: SL 1983, ch 168, § 20.
21-17A-21 . Contents of notice of motion--Affidavit--Grounds.
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 not have suffered great or irreparable injury if issuance of the writ had been delayed until the matter could have been heard on notice.
Source: SL 1983, ch 168, § 21.
21-17A-22 . Hearing on motion--Order of court.
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.
Source: SL 1983, ch 168, § 22.
21-17A-23 . Basis of determination--Additional evidence--Continuance.
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 continue the hearing for the production of such additional evidence or points and authorities.
Source: SL 1983, ch 168, § 23.
21-17A-24 . Priority of hearing on motion to quash.
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.
21-17A-25 . Findings and order of court on hearing--Costs taxed--Damages assessed at trial.
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 shall, on the trial of the action or thereafter, assess the damages sustained by the defendant by reason of the taking and detention or sale of the property attached or by reason of any injury thereto. The same, together with the costs so taxed, shall be a setoff to the plaintiff's demand, and if in excess of it, or the plaintiff fails to recover, the defendant shall have judgment for the amount due. If the court on the hearing held pursuant to § 21-17A-22 finds for the plaintiff, the judge shall tax the plaintiff's costs for the trial, and the amount so taxed shall, if he recovers, be taxed by the clerk as disbursement in the action. If the defendant or his assignee recovers judgment in the action, the costs and the judgment shall be offset.
Source: SL 1983, ch 168, § 25.
21-17A-26 . Judgment for damages to defendant.
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.
21-17A-27 . Delivery of property on judgment for defendant--Action on plaintiff's bond.
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 attachment. Upon the entry of final judgment in favor of the defendant or on satisfaction of a plaintiff's judgment, if real estate was attached, the fact of such judgment or satisfaction shall be recorded by the prevailing party with the register of deeds in any county in which attached lands are situated.
Source: SL 1983, ch 168, § 27; SL 1987, ch 162.
21-17A-28 . Satisfaction of judgment for plaintiff--Delivery of remaining property.
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 necessary to the plaintiff;
(2) By selling, under such execution as may be issued on such judgment, so much of the attached property, real or personal, as is necessary to satisfy the unpaid balance, according to the provisions regulating sales upon execution, except as provided in subdivision (4) of this section;
(3) If any of the attached property belonging to the defendant is not in the sheriff's or constable's hands, without having been sold or converted into money, by repossessing the same, and for that purpose, the sheriff or constable has the same authority which he had to seize the same under the writ of attachment. Any person who intentionally conceals or withholds such property from the sheriff or constable is liable to double damages at the suit of the party injured;
(4) Until the judgment against the defendant has been paid, the sheriff or constable shall collect the evidences of debt that may have been seized or attached by virtue of the writ of attachment, and prosecute any bond he may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment and costs. When the judgment and all costs of the proceedings have been paid, the sheriff or constable, upon reasonable demand, shall deliver the residue of the property attached, or the proceeds thereof, to the defendant.
Source: SL 1983, ch 168, § 28.
21-17A-29 . Plaintiff prosecuting actions officer authorized to bring--Indemnification of officer.
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 indemnify him for all damages, costs and expenses thereon not exceeding five hundred dollars in any one action. The sureties shall, if required by the sheriff or constable, justify by making an affidavit that each is worth double the amount of the penalty named in the undertaking over and above all debts and exemptions.
Source: SL 1983, ch 168, § 29.
21-17A-30 . Death of defendant--Satisfaction of judgment for plaintiff.
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 defendant were living.
Source: SL 1983, ch 168, § 30.
21-17A-31 . Third party's property--Application for release.
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 proper cases try appropriate issues by jury.
Source: SL 1983, ch 168, § 31.
21-17A-32 . Injunction not precluded.
Nothing in this chapter precludes the granting of relief pursuant to chapter 21-8 .
Source: SL 1983, ch 168, § 32.
21-18-1 Actions or small claims proceedings in which garnishment available--Persons and
agencies subject to garnishment. 21-18-2 Plaintiff and defendant defined. 21-18-2.1 Earnings subject to garnishment. 21-18-3 Plaintiff's affidavit for garnishment--Contents. 21-18-3.1 Garnishment prohibited before judgment. 21-18-4 Affidavit covering more than one garnishee--Joint and several proceedings. 21-18-5 Repealed. 21-18-6 Garnishee summons annexed to affidavit--Form. 21-18-7 Service of summons, affidavit, and garnishment disclosure on garnishee. 21-18-8 Service of summons, affidavit, and garnishment disclosure when state is garnishee. 21-18-9 Fee paid to garnishee for expense of garnishment disclosure. 21-18-10 Service of garnishee summons and affidavit on defendant. 21-18-11 Time and manner of service of summons, affidavit, and garnishment disclosure--Return--Payment or retention of property by garnishee. 21-18-12 Liability of garnishee to plaintiff after service of summons. 21-18-13 Property held under void title included in garnishee's liability. 21-18-14 Repealed. 21-18-14.1 Continuing lien on wages--Caption of garnishee summons--Disclosure forms. 21-18-14.2 Repealed. 21-18-15 Judgment not rendered on garnishee's liability on negotiable instrument. 21-18-16 Judgment not rendered on foreign corporation's liability paid by negotiable
instrument. 21-18-17 Judgment not rendered on carrier's liability for property in interstate commerce. 21-18-18 Judgment not rendered against officer for property collected on legal process. 21-18-19 Judgment not rendered on money accountable by public officer. 21-18-20 to 21-18-22. Repealed. 21-18-23 Partial release of garnished funds on application by defendant. 21-18-24 Subsequent proceedings against additional or discharged garnishees--Summons and
trial in other counties. 21-18-25 Actions by principal defendant against garnishee prohibited during garnishment--Stay
of pending proceedings. 21-18-26 Garnishee's affidavit denying liability--Form. 21-18-27 Garnishee's garnishment disclosure liability--Time of filing--Contents. 21-18-27.1 Service of garnishment disclosure form on garnishee--Contents of form. 21-18-28 Disclosure of liability when state is garnishee. 21-18-29 Disclosure by garnishee not made on information and belief--State excepted. 21-18-30 Garnishee's answer conclusive unless issue taken--Trial of issues. 21-18-31 Motion for order on answer of garnishee and defendant--Affidavit. 21-18-32 Payment to officer or clerk by garnishee--Discharge. 21-18-33 Retention of property disclosed by garnishee until expiration of garnishment, levy,
release, or court order--Return of property to defendant. 21-18-34 Payment to clerk by state as garnishee--Exoneration of state. 21-18-35 Order to interplead adverse claimant disclosed by garnishee--Payment by garnishee
and discharge--Service of notice on claimant. 21-18-36 Answer or defense by adverse claimant--Judgment on default. 21-18-37 Answer by other parties to affirmative claim set up by adverse claimant.