§ 15-6-12(b) — Manner of presenting defenses and objections.

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter; (2) Lack of jurisdiction over the person; (3) Insufficiency of process; (4) Insufficiency of service of process; (5) Failure to state a claim upon which relief can be granted; (6) Failure to join a party under § 15-6-19 . A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (5) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in § 15-6-56 , and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by § 15-6-56 .

Legislative History

SDC 1939 & Supp 1960, § 33.1002; SD RCP, Rule 12 (b), as adopted by Sup. Ct. Order March 29, 1966, effective July 1, 1966; as amended by Sup. Ct. Order No. 2, March 31, 1969, effective July 1, 1969; SL 2006, ch 285 (Supreme Court Rule 06-11), eff. July 1, 2006.