STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

December 4, 1968

T. F. Martin
State's Attorney, Brookings County
Brookings, South Dakota 57006

OFFICIAL OPINION NO. 68-44

Fees to be collected by Clerk of Courts as set in SDC 1960 Supp. 12.1406 (8) (9) and 15

Dear Mr. Martin:

You have requested an official opinion relating to the collection of clerk's fees as provided by the above mentioned provisions of our law and in this connection you post the following questions:

"1. Referring to SDC 1960 Supp. 12.1406 (8) and (9), what is meant by the terms '. . . reached for trial. . .' and '. . . calling a jury . . .'? Does this mean that the second three dollar fee is to be collected when an order for trial is issued or a date for trial set in a default?"

"2. Referring to SDC 1960 Supp. 12.1406 (15), is the six dollars due upon filing the complaint and payable by the plaintiff? Is the second three dollars paid by the defendant when filing an answer and payable to the plaintiff? Does the six dollar fee apply even if the case is dismissed?"

Under the provision of subsections (8) and (9), it is my opinion that the second two and three dollar fee is not due or payable unless and until the case is set for trial to a jury or the court, as the case may be.

In this connection I would call your attention to a former opinion of this office to the State's Attorney of Kingsbury County under date of May 17th, 1967 in which I ruled "that the mere Order dismissing the action based upon a stipulation does not result in a trial and only the initial fee of $3.00 is due the clerk."

The initial filing fee would be as follows:

Filing fee as provided by Subsection........................................... $3.00

Filing fee as provided by Ch. 446, S.L. 1968….…....................... 1.50

                                                                                                    $4.50

In answer to your second question, it is clear from the reading thereof that the plaintiff shall pay a $3.00 plus $1.50 fee when filing the complaint and the second three dollars payable in contested cases when the answer is filed is payable to the Clerk of Courts.

In case of dismissal the $4.50 fee would apply.

Respectfully submitted,

Frank L. Farrar
Attorney General