Legal Question in Civil Litigation in South Dakota
Fraud case in Small Claims Court
My son's vehicle ( 69 chevelle in various stages of restoration)was ran into by an individual with no insurance. We had an estimate done by the body shop in our small town and presented them with the bill. They asked to have someone they know do an estimate. This estimate was considerable less. They have no telephone so my husband went to their house, which he had been to many times before since they have no telephone and told them we found the estimate to be unacceptable. We heard no more from them so I filed the claim in Small Claims for the amount of the estimate. She denied the claim and lo and behold attached a ''counterclaim'' requesting $5000.00 in compensation for harassment, trespassing, and attempted fraud. Can you believe??? My question is: Can she do this thru small claims?. Seems to be that would be making her accuser, judge and jury. Do I need to get a Lawyer to go with me that day. The counterclaim is just attached to her notice of denial of our claim. HELP I live in a very small town which has no lawyers, so will have to seek outside help if needed.
1 Answer from Attorneys
Re: Fraud case in Small Claims Court
Yes, defendant may counterclaim. You should have your repairman with you present and ready to testify as to his appraisal. He can be subpoenaed to attend if necessary. Your husband should be present to testify as well as your son. Your son testifies about how the accident occurred. Your husband testifies about his attempt to collect the debt. Hopefully he will appear to the judge to be calm and collected.
If you have your witnesses, and they haven't brought theirs, you'll probably win.
See:SDCL 15-39-66. *Small claims - Setoff or counterclaim stated by defendant - Notice to plaintiff and postponement of hearing - Answer by plaintiff - Request for jury trial or petition for removal on non-compulsory counterclaims - Provisions not compulsory.
The defendant within the time for answer may, in the manner provided in � 15-39-48, claim any setoff or counterclaim within the jurisdiction of the court in civil cases. Upon the making of such claim by the defendant, the clerk shall give a notice to the plaintiff, at the expense of the defendant, similar to that provided by � 15-39-78, and shall postpone the hearing of the original claim until the time set for hearing the defendant's claim, and shall notify the parties accordingly. The defendant's claim shall be answered within the time and in the manner provided by �� 15-39-64 and 15-39-65, and the penalties upon defendants provided by � 15-39-64 shall apply to plaintiffs in respect to claims by a defendant. The original claim and the claim of setoff or counterclaim shall be deemed one case. The compulsory rule does not apply in small claims court.
Upon the filing of a setoff or counterclaim, plaintiff has the same right of removal . . .
15-39-70. *Small claims - Subpoenas for witnesses.
Subpoenas for witnesses, if requested, will be issued by the clerk and served according to the specifications of �15-6-45(c).
15-6-45(c). Service of subpoena. (Ask clerk what you need to do.)
Don't forget to file your denial of their counterclaim with the clerk.
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