Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
After all defendants in a South Dakota partition action have been properly served and the 20-day response period under SDCL 15-6-12(a) has expired, you can move forward to schedule a hearing. Below are the key steps:
- Obtain an Entry of Default. If no answer or appearance is filed within 20 days of service, file a praecipe for entry of default under SDCL 15-6-55. The clerk will record the default against unresponsive parties.
- File a Motion for Default Judgment and Partition Order. Prepare a motion under SDCL 21-45-4 to appoint a commissioner or to order an in-kind or sale partition. Attach an affidavit verifying service and default, a proposed judgment, and, if applicable, a proposed order appointing a commissioner.
SDCL 21-45-4 - Request a Hearing Date from the Clerk’s Office. Contact the circuit court clerk to secure an available hearing slot. Provide case number, estimated hearing time, and a copy of your motion and proposed order. The clerk will assign a date, time, and courtroom.
- Prepare and Serve Notice of Hearing. Draft a Notice of Hearing specifying the date, time, and location. Under SDCL 21-45-4, serve it on all parties and on any known lienholders at least 10 days before the hearing.
- File Proof of Service. File your affidavit or certificate of service with the clerk to demonstrate compliance with notice requirements.
- Submit Hearing Materials. At least 7 days before the hearing, file and serve any exhibits, witness lists, appraisals, or the commissioner’s preliminary report. This ensures the court and opposing parties have time to review.
- Attend the Hearing. Arrive early with copies of all pleadings, exhibits, and the proposed judgment. Be prepared to summarize the partition method (sale or in-kind) and respond to any objections.
If all parties have answered rather than defaulting, you must instead:
- Meet and confer with opposing counsel to outline discovery deadlines.
- File a joint proposed scheduling order or request a scheduling conference under SDCL 15-6-16(b).
- Obtain a court-issued scheduling order that sets pretrial deadlines and a trial or hearing date.
Helpful Hints
- Use the court’s online calendar or clerk’s office to confirm hearing availability.
- Label all documents clearly with the case number and party names.
- Serve notices with certified mail or a process server to avoid service disputes.
- Keep a master packet of all filings and proofs of service for in-court reference.
- Confirm local rules for partition actions in the relevant county, as procedures can vary slightly.