RULE 35. SCOPE OF REVIEW
(a) Civil Appeals
(1) Power of Court on Appeal. Upon an appeal from a judgment or order, the court may reverse, affirm, or modify the judgment or order of the district court as to any party. If the appeal is from a part of the judgment or order, the court may reverse, affirm, or modify that part of the judgment or order.
(2) Intermediate Orders. Upon an appeal from a judgment, the
supreme court may review any intermediate order or determination ruling of the district court below which involves the merits and necessarily affects the judgment appearing upon the record transmitted or returned from the trial court. (b) Civil Appeals; Power of Court on Review (3) Order for New Trial or Determination of Issue. Upon an appeal from a judgment or order, the supreme court may reverse, affirm, or modify the judgment or order as to any and all of the parties, and if necessary or proper may order a new trial of the entire cause or of some specific issue or issues, and if the appeal is from a part of the judgment or order, may reverse, affirm, or modify it as to the part appealed from. The court may order a new trial of the case or of an issue or issues. If, in the consideration of any appeal, it becomes apparent to the supreme court that some issue involved in the case has not been tried, or if tried has not been determined by the trial court, and that it is necessary or desirable to proper disposition of the case on appeal that the issue be determined If an issue or issues have not been tried or, if tried, not determined, the supreme court may remand the case to the trial district court for the a determination of the issue or issues, without relinquishing jurisdiction of the appeal , and the supreme. The court may hold defer the determination of the appeal in abeyance until the issue has or issues have been determined by the trial court and the determination certified to the supreme court by the district court. In that case the The proceedings had and the determination made in the trial of the district court, upon remand, are deemed to be part of the record on appeal in the case.
(4) Judgment or Decision of Court.
In all cases the The supreme court shall must remit its final judgment or decision to the district court from which the appeal was taken to be enforced accordingly , and if . If the appeal was from a judgment, final judgment thereupon shall be entered in the court below in accordance therewith, except when the district court must enter final judgment in accordance with the court's judgment or decision, unless the court ordered orders otherwise. (c) (b) Criminal Appeals ; Intermediate Orders. Upon an appeal from a verdict or judgment, the supreme court may review any intermediate order or ruling which involves the merits or which may have affected the verdict or judgment adversely to the appellant. (d) Criminal Appeals;
(1) Power of Court on Review. Upon an appeal from a verdict, judgment, or order, the
supreme court may reverse, affirm, or modify the verdict, judgment, or order appealed from, and may do any of the following:
(A) set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the verdict, judgment, or order
, and, if proper,;
may order a new trial .;
(C) review any intermediate order or ruling which involves the merits or which may
have affected the verdict or the judgment adversely to the appellant.
In either case, the action must be remanded to the trial court The court must remand the case, with proper instructions , together with the and its opinion, to the district court of the court.
(c) District Court Proceedings upon Remand--Time Limitation. Upon remand by the supreme court for a new trial or other further proceedings in the district court, the proceedings must be commenced within one year from the date of the judgment, order, or opinion of the supreme court. If proceedings are not commenced in the district court within that time, the action must be dismissed unless, for good cause shown, the district court orders otherwise.
Rule 35 was amended, effective .
represents an effort by the Committee to codify incorporates in these rules four statutes relating to the scope of review by the Supreme Court in civil and criminal cases, all of which have been superseded. Subdivision (a) is taken from former N.D.C.C. § 28-27-28, except the last sentence of the statute regarding exceptions and a settled statement of the case was deleted. Subdivision (b) is a restatement of former § 28-27-29. Subdivision (c) is derived from § 29-28-27, and is similar in scope to subdivision (a), but it relates to criminal appeals. Subdivision (d) is derived from former § 29-28-28. The rule does not change existing appellate practice.
Rule 35 was amended, effective __________________. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Subdivision (c) was added, effective , to incorporate the provisions of N.D.C.C. § 28-27-31.
SOURCES: Joint Procedure Committee Minutes of ; May 25-26, 1978,page 18; March 16-17, 1978, pages 5-6; January 12-13, 1978, page 24, N.D.C.C. §§ 28-27-28, 28-27-29, 29-28-27, and 29-28-28.
SUPERSEDED: N.D.C.C. §§ 28-27-28, 28-27-29, 29-28-27, 29-28-28,
and 29-28-29, and 28-27-31. CONSIDERED: N.D.C.C. § 28-27-31.
See N.D.R.Civ.P. 52(a) (Findings by the Court).