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Starting a Court Action

Learn about the different levels of court in South Dakota, types of cases that can be filed in the state, and steps in a lawsuit.

South Dakota Court Structure

It is good to know the different levels of court and case types that can be filed in South Dakota. 

Circuit courts are the state’s trial courts and handle criminal and civil cases. 

Magistrate courts operate under the supervision of circuit courts and assist the circuit courts and handle misdemeanor criminal cases and minor civil cases.

The Supreme Court is the state’s highest court and makes final decisions on state law. The Supreme Court most often serves as an appellate court and hears appeals of circuit court decisions. The Supreme Court also has original jurisdiction over certain types of proceedings, which means the matter is filed directly with the Supreme Court.

Learn More About Court Structure

Types of Cases

There are two types of legal cases: criminal and civil. 

A criminal case is when the state of South Dakota charges a person for violation of a crime. 

A civil case is when someone sues an individual or a business regarding private rights or obligations. There are many kinds of civil cases, for example divorce, a dispute with a landlord, a boundary disagreement with a neighbor, or a problem with a store that sold you a faulty product. 

Learn More About Case Types

Filing a Case

You must decide which county or state is right for your case. This is called finding the right venue. The case is usually filed where you live or where the action took place, but not always. See SDCL 15-5 for statutes on venue of actions.

Cases involving family matters like divorce or custody, civil actions against individuals and business, and claims seeking judgement of $12,000 or more will be filed in circuit court. 

Matters requesting judgment of anything less than $12,000 can be filed as a small claims case in magistrate court. 

Learn About Small Claims Court

Steps in a Lawsuit

  1. File the summons and complaint.
    The person starting the case is called the plaintiff. The plaintiff completes and files a summons, which notifies the other party that an action is being filed against them, and a complaint, which tells the court what the case is about. The court will charge a fee to file the case.

  2. Serve the defendant.
    The person being sued is called the defendant. The plaintiff is required to show that the defendant was properly served with copies of the summons and complaint. This is called service of process and can be completed by one of the following: 
    • Personal Service: The papers are hand delivered to the defendant. This is often done by the sheriff’s office, or in some larger communities, a private process server. Personal service can also be done by any credible person over the age of 18 who is not involved in the case. An Affidavit of Service form proving that the person received the papers must be filled out and filed at the clerk of courts office. For more information about proof of service requirements, see SDCL 15-6-4(g).

    • Acceptance of Service: If the other side is willing to accept the papers, you can give them a copy, have them sign an Admission of Service form saying that they received them, and file that form with the clerk of courts office.

    • Service by Publication: This method is used only if the person you are suing lives out of state, and you don’t know how to locate them. Putting an ad in the newspaper is usually considered service by publication, but this can be a little tricky. Service by publication is explained in SDCL 15-9-7 through 15-9-22. Proof of service by publication is described in SDCL 15-6-4(g)(4).
  3. File an Answer.
    The defendant files a written response to the complaint telling their side of the story and delivers a copy to the plaintiff. This is called an answer. If the defendant chooses not to file an answer, the judge could enter a default judgment.

  4. Try to reach an agreement with the other party.
    Before having the case heard before a judge, the parties should attempt to find a resolution that is fair and equitable. This can be done by completing a settlement agreement. Mediation may be a good option to help the parties reach an agreement.

  5. Request and prepare for a hearing.
    If an agreement cannot be reached between the parties, one side will have to request a hearing with the clerk of courts office. At this time, both parties will also need to begin gathering evidence to prove their case. Evidence could include documents, photographs or the testimony of witnesses.

  6. The hearing is held. 
    This is when both sides appear before the judge to present their evidence to prove their case.

  7. The judge makes a decision.

Court Resource Guides

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Filling Out Forms

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How the Court Assists

Court staff can answer questions that call for factual information, but they cannot provide legal advice. Learn how court staff can and cannot assist you.