March 12, 1980

The Honorable Tim Johnson 
State Representative 
102 North Plum Street 
Vermillion, South Dakota 57069

Official Opinion No. 80-19

Tolling of statute of limitations

Dear Mr. Johnson:

You have requested an official opinion from this office in regard to the following factual situation:

FACTS: 

A Sioux City, Iowa, construction firm has periodically performed work in the State of South Dakota.  The principal place of business for this company is in the State of Iowa; however, it is registered with the Secretary of State in Pierre as a foreign corporation and is authorized to do business in the State of South Dakota.  A registered agent exists in South Dakota for service of process.

Based upon the above facts you have asked the following question:

QUESTION: 

Does registration with the Secretary of State of South Dakota by a foreign corporation construction company and appointment of an agent for service of process create a sufficient presence within the state to permit the running of the six year statute of limitations found at SDCL 15-2-9, and avoid the tolling of that statute because of absence from the state under SDCL 15-2-20? 

In the case of Busby v. Shafer, 66 N.W.2d 910 (1954), the South Dakota Supreme Court appears to me to have stated the law in regard to your question. In that case, the court noted that the 'absent' party was not really absent in  that there was a statute whereby the Secretary of State could be served in any action against such person growing out of the operation of a motor vehicle. The factual circumstances of that case appear to be very similar to those in the issue you present.  The court there stated in part: 

Decisions in other states are generally to the effect that when the remedy of a party is complete and unaffected by the absence of the defendant from the state a tolling statute is without application.  (Citations omitted.) And in accord with this majority view the decisions reason that where provision is made by statute for substituted service of process upon a state official in cases arising out of motor accidents within the state the provision makes the defendant as amenable to process as if he resided within the state and has the effect of nullifying any statute suspending the period of limitations.  (Citations omitted.)

Respectfully submitted,

Mark V. Meierhenry
Attorney General