Setting aside a South Dakota default judgment: relief survives for a defendant never actually notified

South Dakota's relief statute ends with a clause most states do not have. After abolishing the old writs and setting the one-year limit, it preserves the court's power:

to grant relief to a defendant not actually personally notified as provided by statute

That is a separate route, sitting outside the enumerated grounds and outside the one-year cap — and it is aimed precisely at the defendant who never knew the case existed.

The preserved route

SDCL § 15-6-60(b) closes with:

Section 15-6-60 does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided by statute or to set aside a judgment for fraud upon the court.

Three things survive the section: an independent action, relief to a defendant not actually personally notified, and relief for fraud upon the court.

The middle one is the distinctive South Dakota provision. Note its terms carefully — it turns on whether you were actually personally notified, not on whether service was technically valid, and the relief is "as provided by statute", so the governing terms come from the statute rather than from this rule.

Where you were served in a legally sufficient way but never in fact learned of the action, this is the route to raise alongside the ordinary grounds.

The enumerated grounds and the one-year limit

SDCL § 15-6-60(b) carries the six familiar grounds, ending:

(6) Any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.

The motion "does not affect the finality of a judgment or suspend its operation" — collection continues unless you obtain a stay.

Setting aside a judgment, not an entry

SDCL § 15-6-55(c):

Setting aside default judgment. For good cause shown the court may set aside a judgment by default in accordance with § 15-6-60(b).

South Dakota's provision speaks of setting aside "a judgment by default" and routes it through § 15-6-60(b). Unlike most states, it does not describe a separate, easier standard for an entry of default standing alone.

§ 15-6-55(a) is correspondingly thin: "When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by this chapter that fact shall be made to appear by affidavit." The default is shown by affidavit — check that one exists.

Every default goes to a judge

§ 15-6-55(b)(1):

By the Court. In all cases the party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against a minor or incompetent person unless represented in the action by a guardian, conservator or guardian ad litem who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper and shall accord a right of trial by jury to the parties when and as required by any statute of this state.

"In all cases" — there is no clerk route in South Dakota, whatever the claim. And three days' written notice was owed if you had appeared.

The twenty-day filing rule

§ 15-6-55(b)(2) is unusual and easy to check:

Filing. No default judgment shall be rendered against a defendant until a complaint has been on file at least twenty days unless the complaint has been served with a summons.

Where the complaint was not served with the summons, it must have been on file for at least twenty days before any default judgment could be rendered. Compare the file-stamp date on the complaint against the date of the judgment.

That is a bright-line requirement, and a judgment entered inside the twenty days did not follow the statute.

What a default judgment cannot do

§ 15-6-55(d) applies the rule whichever party seeks the judgment, and subjects a default judgment to the limitations that govern the relief demanded. Compare the judgment against the complaint.

If you have not been defaulted yet

See responding to a South Dakota complaint for the deadline and what the answer must contain.

How South Dakota compares

A short checklist

1. Ask whether you were actually personally notified. If not, the statute preserves a separate route outside the one-year limit.
2. Count one year from entry for mistake, newly discovered evidence and fraud.
3. Check the affidavit showing the failure to plead or defend.
4. Confirm a judge entered it. South Dakota has no clerk route in any case.
5. Check the three days' notice if you had appeared.
6. Check the twenty days. If the complaint was not served with the summons, it had to be on file twenty days first.
7. If a year has passed, work on (4), (5) and (6) — or the independent action, or fraud upon the court.
8. Get a stay separately. The motion does not suspend the judgment.

Where these rules live

• SDCL § 15-6-55 — Default
• SDCL § 15-6-60 — Relief from judgment or order

This page explains what the statutes say. It isn't legal advice, and what amounts to good cause or excusable neglect is developed in case law this site doesn't cover.