RULE 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT
(a) Automatic Stay-Exceptions-Injunctions, Receiverships, and Accountings. Except as stated herein, no execution may issue upon a judgment nor may proceedings be taken for its enforcement until
the expiration of10 days after service of notice of itsentry of judgment if the opposing party appeared, and 10 days after entry of a judgment by default. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action, or a judgment or order directing an accounting, may not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.
(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made
pursuant tounder Rule 59, or of a motion for relief from a judgment or order made pursuant tounder Rule 60, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant tounder Rule 50, or of a motion for amendment to the findings or for additional findings made pursuant tounder Rule 52(b).
(c) Injunction Pending Appeal. If an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.
(d) Stay Upon Appeal. If an appeal is taken, the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a). The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.
(e) Stay in Favor of the State or Agency Thereof. If an appeal is taken by the state,
ora governmental subdivision, thereof oran officer, oran agency thereofor by direction ofany department thereofof the state and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security may be required from the appellant.
(f) Undertaking to Stay Execution for Delivery of Personalty. If the judgment appealed from directs the assignment or delivery of documents or personal property, the execution of the judgment may not be stayed by the appeal unless the things required to be assigned or delivered are brought into court or are placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking is entered into on the part of the appellant by at least two sureties
,. The undertaking must be in suchthe sum as the court shall direct ,to the effect that the appellant will obeyeffectuate obedience to the order of the appellate court on theappeal.
(g) To Stay Execution on Conveyance. If the judgment appealed from directs the execution of a conveyance or other instrument, the execution of the judgment is not stayed by the appeal, unless the instrument has been executed and deposited with the clerk with whom the judgment was entered to abide the judgment of the appellate court.
(h) Undertaking to Stay Execution-To Sell or Deliver Realty. If the judgment appealed from directs the sale or delivery of possession of real property, the execution of the same is not stayed unless an undertaking is executed on the part of the appellant by at least two sureties.
, in such sum as the court shall direct, to the effect that during the possession of such property by the appellant he will not commit nor suffer to be committed any waste thereon and that if the judgment is affirmed he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof pursuant to the judgment.The undertaking must be in the sum as the court shall direct to prevent the appellant from causing or allowing waste to the property, and if the judgment is affirmed, to pay the value for the use or occupation of the property from the time of appeal until delivery of possession of the property as provided in the judgment.
(i) Undertaking to Stay Abatement of Nuisance. If the judgment appealed from directs the abatement or restraint of the continuance of a nuisance, either public or private, the execution of the judgment is not stayed by the appeal unless an undertaking is entered into on the part of the appellant by at least two sureties
,. The undertaking must be in the in suchsum as the court shall direct , to the effect that the appellant will payto effectuate payment for all damages which the opposite party may sustain by the continuance of the nuisance.
(j) Undertaking to Stay Other Executions. If the judgment appealed from directs
the doing ofany particular act or thing and no express provision is made by statute in regard to the undertaking to be given on appeal therefromfrom the judgment, theexecution thereofof the judgment is not stayed by thean appeal therefromunless an undertaking is entered into on the part of the appellant by at least two sureties ,. The undertaking must be in the suchsum as the court shall direct , and by at least two sureties, to the effect that the appellant will payto effectuate payment for all damages which the opposite party may have sustained by not doing the particular thing or act directed to be done by the judgment appealed from and to such further effect as the court in its discretion directs.
(k) To Stay Intermediate Orders. When an appeal is from an order, the execution or performance
thereof mustof the order may not be delayed, except upon compliance with suchthe conditions as the court shall direct, and, when so required, an undertaking must be executed on the part of the appellant by at least two sureties in such sumsthe sum and to suchthe effect as the court directs. The effect of the undertaking must be directed in accordance with the nature of the order appealed from, correspondingand correspond to the provisions of these rules inwith respect to appeals from judgments. , when applicable, and such provisionsProvisions must be made in all cases as willto properly protect the respondent. , and no appeal from judgments, when applicable, and such provisions must be made in all cases as will properly protect the respondent, and no appeal from an intermediate order before judgment stays proceedings unless the court in its discretion orders a stay.
(l) Power of Appellate Court Not Limited. This rule does not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.
(m) Stay of Judgment as to Multiple Claims or Multiple Parties. If a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of the judgment until
the enteringentry of a subsequent judgment or judgments, and the court may prescribe suchconditions as are necessary to secure the benefit thereofof the judgment to the party in whose favor the judgment is entered.
(n) Order Staying Proceedings. The court may not order a stay of proceedings more than 20 days except to stay proceedings under an order or judgment appealed from or upon previous notice to the adverse party.
Rule 62 was amended, effective September 1, 1983; _________________.
Rule 62 is derived from Rule 62, FRCivP, with several added provisions, and changes to subdivisions (a), (b), (c), (d) and (e) to conform to the court system of North Dakota. Subsection (a) was amended in 1983, effective September 1, 1983, to provide
thatno execution shallmay issue upon a judgment nor shallmay proceedings be taken for its enforcement until the expiration of 10 days after "notice of" its entry, rather than its entry; except, in a default judgment the time begins to run from the date of entry. Federal subdivision (f), concerning a stay according to state law, was deleted. In its place, subdivisions (f), (g), (h), (i), (j), and (k), derived from Sections 28-2712 through 28-2717, NDRC 1943, were inserted. These contain mostly provisions requiring an undertaking to stay certain proceedings. Subdivisions (l) and (m) are identicalsimilar to subdivisions (g) and (h) in the federal rule. Subdivision (n), taken from Section 28-2807, NDRC 1943, was added setting a time limit on how long an order may be made effective.
Rule 62 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).
SOURCES: Procedure Committee Minutes of _______________________; September 30-October 1, 1982, pages 6 and 12-15; November 29-30, 1979, page 19; Rule 62, FRCivP.
SUPERSEDED: Section 28-2102, 28-2711, 28-2712, 28-2713, 28-2714, 28-2715, 28-2716, 28-2717, 28-2718, 28-2719, 28-2807, NDRC 1943.
CROSS REFERENCE: Rules 50 (Motion for a Directed Verdict), 52 (Findings by the Court), 54 (Judgment Costs), 59 (New Trials Amendment of Judgments), and 60 (Relief from Judgment or Order), NDRCivP; Rule 8 (Stay or Injunction Pending Appeal), NDRAppP.