Part VI: Trials · Last amended 1966 · Last verified July 16, 2026
In one sentenceRule 15-6-39 explains what happens once a jury trial is demanded under Rule 15-6-38, when the case instead proceeds to the court alone, and how a court may still order or allow a jury trial even on issues no one demanded of right.
(a)Trial by jury. When trial by jury has been demanded as provided in § 15-6-38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless:
(1)the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury, or a party waives the same by failing to appear at the trial or by proceeding to trial by the court without objecting thereto; or
(2)the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of this state.
(b)Trial by court. Issues not demanded for trial by jury as provided in § 15-6-38 shall be tried by the court; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues.
(c)Advisory jury — Trial by consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury, or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.
Plain-English Summary
Once a jury has been demanded under Rule 15-6-38, Rule 15-6-39 puts the case on the docket as a jury action, and the demanded issues get tried to a jury, with three exceptions. The parties or their attorneys can stipulate, in writing or on the record in open court, to a bench trial instead. A party can waive the jury by not showing up at trial, or by going along with a bench trial without objecting to it. Or the court itself, on a motion or on its own initiative, can find that no constitutional or statutory jury right covers those issues.
Issues that were never demanded for a jury go to the court instead. But the court is not locked into that outcome: even where a party failed to demand a jury it could have gotten as a matter of right, the court has discretion, on motion, to order a jury trial of any or all of the issues anyway.
For issues that carry no jury right at all, Rule 15-6-39 gives the court two more tools. On a motion or its own initiative, the court can try any such issue with an advisory jury, whose verdict guides but does not bind the court. Or, with both parties’ consent, the court can hold a jury trial on that issue whose verdict counts exactly as if a jury trial had been available as a matter of right.
Frequently Asked Questions
If I demand a jury trial in South Dakota, is the case automatically decided by a jury?
Generally yes, but Rule 15-6-39 lists exceptions: the parties can stipulate to a bench trial, a party can waive the jury by defaulting or proceeding without objection, or the court can find no jury right covers the issues.
Can the parties agree to let a judge decide a case that would otherwise go to a jury?
Yes. Rule 15-6-39 allows the parties or their attorneys to stipulate to trial by the court alone, either in a signed writing or through an oral stipulation made and entered in open court.
What if I never demanded a jury but want one anyway?
Rule 15-6-39 gives the court discretion, on motion, to order a jury trial of any or all issues even where no party demanded one of right.
What is an advisory jury in a South Dakota civil case?
For issues not triable of right by a jury, Rule 15-6-39 lets the court try the issue with an advisory jury, on its own initiative or on a motion, whose verdict advises the court rather than binding it.
Can a jury’s verdict on an issue with no jury right bind the judge?
Yes, if both parties consent. Rule 15-6-39 says that verdict then has the same effect as if the trial by jury had been a matter of right.
Amendment History
(a)SDC 1939 & Supp 1960, §§ 33.1304, 33.1402; SD RCP, Rule 39 (a), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.
(b)SD RCP, Rule 39 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.
(c)SDC 1939 & Supp 1960, § 33.1302; SD RCP, Rule 39 (c), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966.
Source & verification. Rule text and History are
reproduced verbatim from the South Dakota Codified Laws, published by the
South Dakota Legislative Research Council. Last verified July 16, 2026.
· Official source
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