RULE 4. APPEAL--WHEN TAKEN
(a) Appeals in Civil Cases. In a civil case the notice of appeal required by Rule 3 must be filed with the clerk of the trial court within 60 days of service of notice of entry of the judgment or order appealed from, or within 60 days of actual knowledge by the appealing party of the entry of judgment or order appealed from. The date of actual knowledge must be clearly evidenced by the record with action on the part of the appealing party. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.
The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party under the North Dakota Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from service of notice of the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b), NDRCivP; (2) granting or denying a motion under Rule 52(b), NDRCivP, to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 54, NDRCivP, for attorneys' fees; (4) granting or denying a motion under Rule 59, NDRCivP, to alter or amend the judgment; (5) denying a motion for a new trial under Rule 59, NDRCivP; or (6) granting or denying a motion for relief under Rule 60, NDRCivP, if the motion is served and filed no later than 15 days after notice of entry of judgment.
Upon a showing of excusable neglect, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the trial court shall deem appropriate.
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Rule 4 was amended, effective March 1, 1986; March 1, 1994; March 1, 1997; March 1, 1998;________________________.
Given the existing state practice with respect to entry of orders and judgment, the time for civil appeals runs from "service of notice of entry" of the order or judgment. This differs from the federal rule which provides that the period is to run from "the date of entry." The responsibility under subdivision (a) is shifted to counsel to serve the notice and commence the period for appeal. The time limit for taking an appeal
woulddoes not prevent the taking of an appeal at any time after the entry of the judgment or order and before service of notice of entry.
Subdivision (b) is similar to NDRCrimP 37(b). Paragraphs one and two pertain to appeals by the defendant and prosecution, respectively, and paragraph three pertain to appeals by either the prosecution or defendant.
Rule 4 was amended, effective _____________, to incorporate case law holding: "Actual knowledge of entry of an order, when clearly evidenced by the record, commences the running of the time for appeal." Morley v. Morley, 440 N.W.2d 493, 495 (N.D. 1989); citing Lang v. Bank of North Dakota, 377 N.W.2d 575 (N.D. 1985). "[A]ctual knowledge of entry of the judgment or order requires action evident on the record on the part of the appealing party." Thorson v. Thorson, 541 N.W.2d 692, 695 (N.D. 1996).
SOURCES: Procedure Committee Minutes of __________________; January 30, 1997, page 8; January 25-26, 1996, pages 7-10; April 29-30, 1993, pages 2-3, 16-18; November 29, 1984, pages 19-20; April 26, 1984, pages 23-24; January 20, 1984, pages 10-15; September 18-19, 1980, page 20; January 12-13, 1978, page 25; Rule 4, FRAppP.
SUPERSEDED: § 28-27-04, NDCC.