RULE 39. COSTS
(a) Against Whom Assessed. Unless the law provides or the court orders otherwise:
(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;
(2) if a judgment is affirmed, costs are taxed against the appellant;
(3) if a judgment is reversed, costs are taxed against the appellee;
(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.
(b) [Reserved for Future Use].
(c) [Reserved for Future Use].
(d) [Reserved for Future Use].
(e) Costs on Appeal in Civil Cases Taxable in District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs:
(1) the preparation and transmission of the record;
(2) the transcript, if necessary to determine the appeal;
(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal;
(4) the fee for filing the notice of appeal.
(f) Costs in Supreme Court.
(1) Taxable Costs. In original proceedings before the court, costs as applicable under subdivision (e) may be taxed by the supreme court clerk in favor of the party entitled to costs.
(2) Execution for Costs. An execution signed by the supreme court clerk may issue upon direction of the court to enforce any judgment for costs made and entered in an original proceeding before the court. The execution may issue and be directed to the sheriff of any county, and may be enforced in any county in the state in which a transcript of the judgment for costs is filed and docketed.
(g) Costs on Appeal in Criminal Actions. Costs incurred in the appeal of a criminal action may be taxed in the district court upon motion of a party to the appeal and order of the supreme court.
Rule 39 was amended, effective March 1, 2003.
Although derived from Fed.R.App.P. 39, this rule is revised to simplify taxation of costs in the appellate court and the district court. It provides for taxation of all costs by the clerk of district court, except in proceedings initiated in the supreme court.
Subdivision (f) generally restates N.D.C.C. § 28-31-11, which has been superseded and deleted from the century code. It provides a method for execution on a judgment for costs incurred in an action originating in the supreme court.
Subdivision (e) was amended, effective March 1, 2003, to delete a provision allowing for the recovery of appellate brief preparation costs.
If costs are not to be assessed as specified in subdivision (a) , the supreme court must enter an appropriate order, either in the decision or in the judgment.
The judgment used by the supreme court is signed by the chief justice and contains a provision for awarding costs. If costs are awarded, the party receiving costs is designated by the supreme court clerk. The action by the clerk and the signature by the chief justice are under the direction of the entire court.
Rule 39 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 39. 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 April 25-26, 2002, pages 22-24; June 21, 1984, page 8;May 25-26, 1978, page 19;March 16-17, 1978, pages 7-8. Fed.R.App.P. 39.
SUPERSEDED: N.D.C.C. §§ 28-31-10 and 28-31-11.