RULE 3. APPEAL AS OF RIGHT -- HOW TAKEN
(a) Filing the Notice of Appeal.
(1) An appeal permitted by law as of right from a district court to the supreme court may be taken only by filing a notice of appeal with the clerk of district court within the time allowed by Rule 4.
(2) An appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the supreme court to act as it considers appropriate, including dismissing the appeal.
(b) Joint or Consolidated Appeals. When two or more parties are entitled to appeal from a district court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant. Appeals may be consolidated by order of the supreme court upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.
(c) Content of the Notice of Appeal. The notice of appeal must:
(1) specify the party or parties taking the appeal;
(2) designate the judgment, order, or part thereof being appealed;
(3) name the court to which the appeal is taken.
(d) Serving the Notice of Appeal.
(1) The clerk of district court must promptly serve notice of the filing of a notice of appeal by mailing or sending by third-party commercial carrier a copy of the notice of appeal to the supreme court clerk and to each party's counsel of record -- excluding the appellant's -- or, if a party is proceeding pro se, to the party's last known address. The clerk of district court must note on each copy the date when the notice of appeal was filed.
(2) In criminal cases, habeas corpus proceedings, or post-conviction proceedings, the clerk of district court must also send a copy of the docket entries to the supreme court clerk with the copy of the notice of appeal.
(3) The clerk of district court's failure to serve a copy of the notice of appeal does not affect the validity of the appeal. The clerk of district court must note on the docket the names of the parties to whom the clerk sends copies, and the date they were sent. Service is sufficient despite the death of a party or the party's counsel.
(4) The title of the action is not to be changed as a consequence of the appeal, but if the State of North Dakota is a real party in interest and was not named as a party in the original title, its name must be added to the title on appeal.
Rule 3 was amended, effective January 1, 1988; March 1, 1999; March 1, 2003.
Rule 3 is patterned after Fed.R.App.P. 3. Nothing other than the timely filing of the notice of appeal in the trial court is required to give the supreme court jurisdiction over the appeal. After a party files a notice of appeal, the clerk of district court sends copies to the supreme court clerk and to each of the parties. For the service of other papers, these rules place the responsibility of service on counsel rather than the clerk of district court.
It should be noted, Rule 10(b) requires proof of service of the order for transcript and a copy of the stipulation of excluded portions, if any, to be filed with the notice of appeal, Rule 12(a) requires the docket fee to accompany the filing of the notice of appeal, and Rule 7 requires a bond for costs or equivalent security be filed with the notice of appeal in civil cases.
Subdivision (a) provides failure to follow any rule may result in dismissal of the appeal, an award of costs, or other appropriate action.
Subdivision (d) was amended, effective March 1, 1999, to allow copies to be sent via a third-party commercial carrier as an alternative to mail.
Paragraph (d)(4) requires the title of the action to remain the same on appeal. Consistent with N.D.R.App.P. 1(c), the party who first files the notice of appeal must be designated as the appellant in the title and the responding party must be designated as the appellee. Paragraph (d)(4) was amended, effective ___________, to specify that, if the State of North Dakota is a real party in interest to an action, it must be named as a party on appeal, regardless of whether it was named as a party in the original title.
Rule 3 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 3. 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.
SOURCES: Joint Procedure Committee Minutes of September 22-23, 2005, page 25; September 23-24, 1999, pages 9-10; January 29-30, 1998, page 21; February 19-20, 1987, pages 4-5; September 18-19, 1986, pages 12-13; May 25-26, 1978, page 3; March 16-17, 1978, page 1; January 12-13, 1978, pages 2-3; September 15-16, 1977, pages 4-5. Fed.R.App.P. 3; § 3.13(b) ABA Standards Relating to Appellate Courts (Approved Draft, 1977).
SUPERSEDED: N.D.C.C. § 28-18-09, 28-27-05, 28-27-26, 29-28-05, 29-28-20, 29-28-21.
CONSIDERED: N.D.C.C. § 14-09-09.26
CROSS REFERENCE: N.D.R.App.P. 1 (Scope of Rules); N.D.R.App.P. 10 (The Record on Appeal), N.D.R.App.P. 11 (Transmission and Filing of the Record), N.D.R.App.P. 12 (Docketing the Appeal), and N.D.R.App.P. 31 (Filing and Service of Briefs), N.D.R.Civ.P. 54(b) (Judgment Upon Multiple Claims or Involving Multiple Parties).