South Dakota Writ of Garnishment

Introduction

Key Things to Know

1. 1

   In South Dakota the instrument is called a garnishee summons, and Section 21-18-6 requires the plaintiff to annex or subjoin it to a garnishment affidavit, so the two papers travel together with a blank garnishment disclosure form for the garnishee to complete.

2. 2

   Budget the garnishee's fifteen dollars first. Section 21-18-9 requires that sum to be paid for the expense of preparing the garnishment disclosure, states that the garnishment proceeding is void if the garnishee is not paid, and requires the return of service to say the payment was made.

3. 3

   The clerk's charges are small and separate: five dollars to issue and docket an execution, commission or writ under Section 16-2-29(5)(c), and twenty-five dollars under Section 16-2-29(3)(e) for default cases involving garnishment proceedings. The published Schedule of Court Costs adds no surcharge to either issuance line.

4. 4

   South Dakota beats the federal floor on three axes at once. Section 21-18-51 caps an ordinary garnishment at the lesser of twenty percent of that workweek's disposable earnings, or the amount by which those earnings exceed forty times the federal minimum hourly wage frozen at its July 24, 2009 level (or the state minimum wage if greater), less twenty-five dollars a week for each dependent family member living with the debtor.

5. 5

   Marking the caption is what makes the garnishment continuing. Section 21-18-14.1 gives the plaintiff a one hundred twenty day lien on wages only if the words continuing lien appear on the caption of the garnishee summons, and the lien expires at one hundred twenty days, at the sum stated in the summons, or when the job ends, whichever comes first.

6. 6

   The garnishee owes you an answer within thirty days from service of the garnishee summons, exclusive of the day of service, and it answers either with the completed disclosure under Section 21-18-27 or with the denial affidavit in Section 21-18-26. You separately serve the summons and affidavit on the debtor before, or within thirty days after, the garnishee.

7. 7

   Non-wage property sits still for longer than a paycheck does. Section 21-18-33 makes the garnishee hold disclosed money, credits or property for one hundred eighty days from service, and if no levy is served and no payment agreement or court order arrives in that window, the garnishment ends and the property goes back to the debtor.

South Dakota Requirements for Writ of Garnishment

• Pay the Garnishee $15 or the Proceeding Is Void

  Section 21-18-9 requires the garnishee to be paid fifteen dollars to reimburse the expense of preparing the garnishment disclosure, taxed as part of the plaintiff's costs. The same section provides that if the garnishee is not paid, the garnishment proceeding is void, and that the return of service of the garnishee summons shall include a statement that the sum was paid. Treat it as jurisdictional, not a courtesy.

• Garnishment Affidavit, and No Pre-Judgment Route

  Section 21-18-3 requires an affidavit stating that a named person is indebted to or holds property of the defendant, that the defendant has no other property in the state subject to garnishment sufficient to satisfy the demand, that the indebtedness or property is not by law exempt, and the amount of the claim sued upon. Section 21-18-3.1 prohibits garnishment before final judgment in the principal action.

• Garnishee Summons in the Statutory Form

  Section 21-18-6 requires the plaintiff to annex or subjoin a garnishee summons to the affidavit, in substantially the form printed in the statute. It is subscribed by the attorney for the plaintiff, not issued or signed by a clerk, and the statutory form leaves the court line blank. The Unified Judicial System prescribes no numbered garnishment form: the needle garnish returns zero hits across the 1,376 URLs in its sitemap.

• Ceiling: 20 Percent, 40x the Wage, Less $25 Per Dependent

  Section 21-18-51 caps an ordinary garnishment at the lesser of twenty percent of disposable earnings for the workweek, or the amount by which those earnings exceed forty times the federal minimum hourly wage as in effect July 24, 2009, or the applicable state minimum wage if greater, less twenty-five dollars per week for each dependent family member residing with the debtor. Tighter than the federal floor on all three axes, so do not calculate on 25 percent or on a 30x multiplier. Support orders and Title 11 bankruptcy orders are excluded from these caps and run under Section 21-18-52 instead.

• Mark the Caption Continuing Lien for 120 Days

  Section 21-18-14.1 gives the plaintiff a one hundred twenty day continuing lien on wages only if the words continuing lien are marked on the caption of the garnishee summons. Withholding runs through the last payroll period ending on or before 120 days from the effective date of the summons, or until the sum held equals the amount stated, or until the employment relationship terminates, whichever first occurs. At the expected termination the plaintiff mails a further disclosure form and the garnishee discloses again within ten days.

• Thirty Days to Answer, Exclusive of the Day of Service

  The summons form in Section 21-18-6 requires the garnishee to answer within thirty days after service upon it, exclusive of the day of service. Section 21-18-27 states the same deadline as a duty to file and serve the garnishment disclosure, and Section 21-18-26 lets the garnishee instead file an affidavit denying liability within those thirty days. Section 21-18-10 requires the plaintiff to serve the summons and affidavit on the defendant before, or within thirty days after, service on the garnishee.

• Disclosure Lines, the 105 Percent Cap and the $25 Floor

  Section 21-18-27.1 prints the disclosure the garnishee completes. Line b is forty times the hourly minimum wage times the workweeks plus $25 a week per resident dependent family member; line c subtracts line b from disposable earnings and never goes below zero; line d is twenty percent of line a; line e is the lesser of c and d. Line 8 caps what the garnishee retains at one hundred five percent of the amount in the affidavit, and line 9 instructs it to retain nothing unless the figure is $25.00 or more.

• Silence Costs the Garnishee the Whole Judgment

  Under Section 21-18-39 a garnishee other than the state that is summoned and fails to answer may have judgment entered against it for the amount of any judgment, including costs, the plaintiff recovered in the principal action, plus the costs of the garnishee action. A garnishee that does answer is protected: Section 21-18-30 makes its answer conclusive unless the plaintiff serves written notice within thirty days electing to take issue. Non-wage property is held 180 days under Section 21-18-33, after which the garnishment ends absent a levy, agreement or court order.