RULE 60. RELIEF FROM JUDGMENT OR ORDER
(a) Clerical Mistakes.
Clerical mistakes in judgments, orders or other parts of the records and errors therein arising from oversights or omissionA clerical mistake or an error caused by an oversight or omission in a judgment, order, or other part of the record may be corrected by the court: (1) at any timeon its own initiative; or (2) on the motion of any party. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the Supreme Court , and thereafter while the appeal is pending may be so corrected with leave of the supreme courtAfter an appeal is docketed in the Supreme Court, such mistakes may be corrected only with permission from the Supreme Court.
(b) Mistakes-Inadvertence-Excusable Neglect-Newly Discovered Evidence-Fraud-Etc. On motion and upon
suchterms as are just, the court may relieve a party or a party's legal representative from a final judgment or order in any action or proceeding for the following reasons: (i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged, or a previous judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment. The motion must be made within a reasonable time, and for reasons (i), (ii), and (iii) not more than one year after service of notice that theof entry of the judgment or order was enteredin the action or proceeding if the opposing party appeared, but not more than one year after a judgment by default has been entered. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from any appellate courtthe supreme court except while an appeal from the judgment is actually pending before that courtthe supreme court. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Rule 4(e)(7), or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment must be by motion as prescribed in these rules or by an independent action.
Rule 60 was amended, effective July 1, 1981; September 1, 1983; March 1, 1990; March 1, 1994; ________________.
Rule 60 is nearly identical to Rule 60, FRCivP, except for minor changes to conform to the court system of North Dakota and addition of a provision to subdivision (b) regarding obtaining leave from an appellate court to make a motion for relief.Subdivision (b) was amended in 1983, effective September 1, 1983, to provide that aany motion for relief for reasons (i), (ii), and (iii) must be made not more than one year after service of notice of entry of the judgment or order "notice that" the judgment or order was entered; except, for default judgments the time starts to run from the date of entry.
Subdivision (b) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
Subdivision (a) was amended, effective March 1, 1994, by deleting the phrase "and after such notice, if any, as the court orders." The purpose of the amendment is to clarify that notice should be given. See Disciplinary Action Against Wilson, 461 N.W.2d 105 (N.D. 1990).
Rule 60 was amended, effective __________________. The amendments are stylistic and no substantive changes are intended.
A party should be aware notice of entry of judgment or an order is not necessary to start the time running for filing a post-judgment motion. Actual knowledge of entry of a judgment or an order, when clearly evidenced by the record, starts the time running for filing a post-judgment motion. See Lang v. Bank of North Dakota, 377 N.W.2d 575, 578 (N.D. 1985). Actual knowledge of entry of the judgment or order requires action evident on the record on the part of the moving party. See Thorson v. Thorson, 541 N.W.2d 692, 695 (N.D. 1996).
Supreme Court Conference Minutes of March 31, 1983;Procedure Committee Minutes of _____________________; April 29-30, 1993, page 11; January 28-29, 1993, pages 9-10; April 20, 1989, page 2; December 3, 1987, page 11; September 30-October 1, 1982, pages 6 and 11; November 29-30, 1979, pages 18-19; Rule 60, FRCivP.
SUPERSEDED: Section 28-2901, NDRC 1943.
CROSS REFERENCE: Rules 4 (Persons Subject to Jurisdiction-Process-Service); 52 (Findings by the Court); and 59 (New Trials-Amendment of Judgments), NDRCivP; Rule 7.1 (Judgments, Orders and Decrees), NDROC.