STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 26, 1971

Mr. Richard Kolker
State's Attorney, Brown County
Aberdeen, South Dakota 57401

OFFICIAL OPINION NO. 71-50

Guardianship fees authorized by SDCL 16-10-8(6) apply only to regular guardianship proceedings in County District Court, and do not apply to actions prosecuted or defended by guardian ad litem.

Dear Mr. Kolker:

You have requested my official opinion as to whether or not, if an action is commenced by a guardian ad litem, or during the course of a regular proceeding, a guardian ad litem is appointed for a party to such action, it is permissible for the clerk of courts to charge as fees in addition to the normal fees authorized by SDCL 16-10-8(8) the "guardianship fees" authorized by SDCL 16-10-8(6).

It is settled by the opinions of this office, and in conformity with the general law that a clerk of courts is entitled to charge only such fees as are specifically provided by statute, and no other fees. Such fees as charged should be the exact amount as provided by statute.

1923-24 AGR 282; 1927-28 AGR 159; 1927-28 AGR 173. See 1931-32 AGR 427.

I also approve the ruling of this office reported in 1921-22 AGR 297, when it was said:

A clerk of courts is not en titled to any greater compensation than provided by statute and where a gross sum is provided as the compensation of a clerk for his services in a certain proceeding, he is not entitled to charge other fees for special services, involved in such proceeding.

In this opinion the question was asked whether or not a clerk of courts in a default civil action at law, accompanied by garnishment proceedings, could charge more than the statutory fee for such default.

My predecessor in office stated that whether or not to allow any additional fees depended upon when such garnishment proceedings were held. If such garnishment proceedings were commenced before a judgment of default, the action, of course, would not be a "default action," so that while the clerk could not charge any additional fees for the garnishment proceedings, he could charge the fees allowed for an ordinary civil action. On the other hand, if the garnishment proceedings were commenced after the entry of the judgment of the default, the clerk was entitled to additional fees for such garnishment the same as he is allowed additional fees for execution subsequent to judgment.

16-1 0-8(6) requires the clerk of courts to charge and collect fees for:

(6) guardianship actions up to and including granting of letters of guardianship, five dollars. A fee of twenty cents for filing each paper and twenty-five cents per folio for recording each instrument required by law to be recorded, to be charged for all papers filed after the issuance of letters;

Section 20 of Article V of the South Dakota Constitution vests original jurisdiction in all matters of guardianship in the county courts. A guardian ad litem is an officer appointed by any court to prosecute or defend in behalf of an infant, or an incompetent, a suit to which such infant or incompetent is a party. A guardian ad litem is appointed by the court by virtue of the provisions contained in SDCL 15-6-17(c).

At best, a guardian ad litem can only be denominated a special guardian. Certainly no "letters of guardianship" were issued by any court in the appointment of a guardian ad litem, whether such is for a party plain tiff or a party defendant to any civil action.

In view of the great distinction between those actions in county court denominated as "guardianship" actions, and the peculiar rules of our jurisprudence which require all infants and incompetents to be represented by "officers of the court" denominated as guardians ad litem, in any action in which an infant or an incompetent is a party, it is my opinion that the fee authorized by SDCL 16-10-8(6) applies only to those actions, denominated guardianship actions, commenced and proceeded in District County Court.

In view of the limited application of this statutory authorization, it is my opinion that in any action, whether commenced by a guardian ad litem for an incompetent or infant plaintiff, or in which a guardian ad litem is appointed to represent infant or incompetent party defendants, the clerk of courts has no authority to charge and attempt to collect a "guardianship" fee authorized by SDCL 16-10-8(6). (I might say that if in a guardian or other probate proceedings it were necessary to appoint a guardian ad litem to represent minor beneficiaries, heirs, and the like, the opinion would be the same, such "guardianship fee" provided by SDCL 16-10-8(6) is not applicable or collectible.)

Respectfully submitted,

Gordon Mydland
Attorney General