N.D.R.App.P.
RULE 10. THE RECORD ON APPEAL
(a) Composition of the Record on Appeal. The original papers and exhibits filed in the trial court, three copies of the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the trial court constitute the record on appeal in all cases.
(a) Composition of the Record on Appeal. The following items constitute the record on appeal:
(1) the original papers and exhibits filed in the trial court;
(2) three copies of the transcript, if any; and
(3) a certified copy of the docket entries prepared by the clerk of district court.
(b) The Transcript; Duty of Appellant to Order; Time for Ordering. If an appeal is taken in a case in which an evidentiary hearing was held, it is the duty of the appellant to order a transcript of the proceedings. Three copies must be ordered for the supreme court and one copy must be ordered for each party separately represented. The order must be filed with the clerk of the trial court and must be for a complete transcript of the proceedings, unless a stipulation is obtained from all affected parties specifying portions which are not required for the purposes of the appeal. Within three days of filing, the clerk shall transmit the order to the person designated by the trial court to prepare the transcript. If a party affected by the appeal unreasonably refuses to stipulate to exclude from the transcript portions of the record not necessary to the resolution of issues raised by the appellant, the party proposing the stipulation may apply to the trial court for an order requiring the refusing party to pay for the unnecessary portions of the transcript and reasonable attorney's fees for making the application. The order for transcript and a copy of the stipulation of excluded portions, if applicable, must be filed with the clerk of the trial court with the notice of appeal. A party shall include in the order for transcript the following information:
1. Caption of the case;
2. Date or dates of trial;
3. Number of copies required; and
4. Names and addresses of the parties to be served with copies.
(b) Order for Transcript of Proceeding.
(1) Appellant's Duty to Order. If an appeal is taken in a case in which an evidentiary hearing was held, the appellant shall order a transcript of the proceedings as follows:
(A) three copies of the transcript must be ordered for the supreme court;
(B) one copy of the transcript must be ordered for each party separately represented;
(C) in a civil action, a complete transcript must be ordered, unless a stipulation is obtained from all affected parties specifying the portions which are not required for the purposes of the appeal;
(D) in a criminal action, a transcript may only be ordered of the proceedings relevant to the appeal; and
(E) the order for a transcript, and a copy of the stipulation of excluded portions, if applicable, must be filed with the clerk of district court with the notice of appeal.
(2) Information for Order. An order for a transcript must include the following information:
(A) the caption of the case;
(B) the date or dates of trial;
(C) the number of copies required; and
(D) the names and addresses of the parties to be served with copies.
(3) Unreasonable Refusal to Stipulate. If a party affected by the appeal unreasonably refuses to stipulate to exclude from the transcript portions of the record not necessary to the resolution of the issues raised by the appellant, the party proposing the stipulation may apply to the trial court for an order requiring the refusing party to pay for the unnecessary portions of the transcript and reasonable attorney's fees for making the application.
(4) Clerk of District Court's Duty to Transmit Order. Within 3 days after an order for transcript is filed, the clerk shall transmit the order to the person designated by the trial court to prepare the transcript.
(c) Time for Furnishing Transcript; Filing of Transcript; Financial Arrangements. The transcript must be completed within 50 days after the order for the transcript is filed unless the person preparing the transcript or a party applies for and receives an extension of time under subdivision (d). The person preparing the transcript shall file three copies of the transcript and proof of service of other copies of the transcript with the clerk of the supreme court. The other copies must be served on parties designated in the order for transcript. The person preparing the transcript shall also file a 3.5 inch computer diskette of the transcript. In an appeal of the determination of an administrative agency, the agency shall file a diskette of the transcript unless the agency certifies the transcript was not prepared on a computer or word processor. If demanded by the person preparing the transcript, the appellant or a party obliged by an order of the court under subdivision (b) to pay for the transcript or a portion thereof shall advance the payment of his portion of the estimated cost of any transcript ordered, provided a written estimate of the amount and a demand for payment is served on any obligated party within 10 days after receipt of the order for transcript or an order of the trial court under subdivision (b). Failure to furnish a written estimate and make a timely demand for payment waives the right to demand advance payment. No advance payment is required if the transcript is to be paid for by the state or any agency or subdivision thereof. If an obligated party fails to make the advance payment within 10 days after service of the demand, the person preparing the transcript may suspend preparation of the transcript until payment is made.
(c) Preparation of Transcript.
(1) Time for Furnishing Transcript. Within 50 days after the order for transcript is filed with the clerk of district court, the person preparing the transcript shall complete and file the transcript with the clerk of the supreme court unless an extension of time is received under subdivision (d).
(2) Submission of Transcript.
(A) The person preparing the transcript shall serve and file the transcript as follows:
(i) a copy of the transcript must be served on each party designated in the order for transcript;
(ii) proof of service of the transcript must be filed with the clerk of the supreme court;
(iii) three copies of the transcript must be filed with the clerk of the supreme court; and
(iv) a 3.5 inch computer diskette of the transcript must be filed with the clerk of the supreme court.
(B) In an appeal of the determination of an administrative agency, the agency shall file a diskette of the transcript unless the agency certifies the transcript was not prepared on a computer or word processor.
(3) Financial Arrangements. The appellant or a party obligated under subdivision (b)(3) to pay transcription costs shall provide advance payment for the estimated cost of preparing the transcript, provided:
the person preparing the transcript serves a written estimate of the cost and a demand for payment on the appellant within 10 days after receipt of the order for transcript; or
the person preparing the transcript serves a written estimate of the cost and a demand for payment on a party obligated by court order to pay transcription costs within 10 days after receipt of the order.
If the person preparing the transcript fails to serve a timely written estimate and a timely demand for payment, the right to demand advance payment is waived. Advance payment is not required if transcription costs are to be paid by the state or an agency or subdivision of the state. If the appellant or obligated party fails to make the advance payment within 10 days after service of the demand, the person preparing the transcript may suspend preparation of the transcript until paid.
(d) Extension of Time. If the person preparing the transcript is unable to complete and file the transcript within 50 days after the order for transcript is filed, the trial court for good cause shown may extend the time for completion of the transcript.
If preparation of the transcript has been suspended for failure of any party to make a timely advance payment upon demand, the party responsible for the delay, for good cause shown, may move the trial court for an extension of time in which to file the transcript, on such terms as the court may order.
A request for an extension of time must be made within the time originally prescribed or within an extension previously granted for completion of the transcript., but the A trial court may not extend the time to for more than 90 days from the date of the filing of when the first notice of appeal was filed. If the a trial court is without authority to grant that the relief sought or has denied a request for an extension of time, therefor the supreme court may on motion for good cause shown extend the time for completion of the transcript to be filed after the expiration of beyond the time allowed or fixed. If the a request for an extension of time for completion of the transcript has been previously denied, the motion must set forth the denial and must state the reasons therefor for the denial, if any were given.
(e) Form of Transcript. Each transcript must conform to the requirements of Rule 32 except as otherwise provided in this rule. Lines must be numbered on the left margin, and each page may not contain more than 27 lines or less than 25 lines. The left margin may not be more than 1 3/4 inches wide, and the right margin may not be more than 3/8 inches wide. Each question and answer must begin on a new line, and an indentation for a new speaker or paragraph may not be more than 10 spaces from the left margin. Each volume must be indexed as to every witness and exhibit, and each page must be numbered consecutively. The accuracy of the transcript must be certified by the person preparing the transcript.
(e) Form of Transcript. Each transcript must conform to the requirements of Rule 32 except as otherwise provided:
lines must be numbered on the left margin;
each page may not contain more than 27 lines or less than 25 lines;
the left margin may not be more than 1 3/4 inches wide;
the right margin may not be more than 3/8 inches wide;
each question and answer must begin on a new line;
an indentation for a new speaker or paragraph may not be more than 10 spaces from the left margin;
each volume must be indexed as to every witness and exhibit;
each page must be numbered consecutively; and
the accuracy of the transcript must be certified by the person preparing the transcript.
(f) Statement of the Evidence When the Proceedings Were Not Recorded or When a or Proceedings if No Verbatim Record Was Made or Transcript Is Unavailable. If no verbatim record of the evidence or proceedings at a hearing or trial was made or a transcript If a transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his the appellant's recollection. The statement must be served on the appellee, who may serve objections or propose proposed amendments thereto within 10 days after service being served. Thereupon the The statement and any objections or proposed amendments must then be submitted to the trial court for settlement and approval. and, as As settled and approved, the statement must be filed with the clerk of the supreme court by the appellant within 60 days after the notice of appeal is filed.
(g) Agreed Statement as the Record on Appeal. In lieu In place of the record on appeal as defined in subdivision (a), the parties may prepare, and sign, and submit to the trial court a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court. and setting The statement must set forth only so many of the those facts averred and proved or sought to be proved as that are essential to a decision of the issues presented the court's resolution of the issues. If the statement conforms to the truth is truthful, it, -- together with any additions that the trial court may consider necessary to a full presentation of the issues on appeal-- present the issues raised on appeal, shall must be approved by the trial court and shall must then be certified to the supreme court as the record on appeal. The clerk of district court must then send the statement and transmitted thereto to the supreme court by the clerk of the trial court within the time provided by Rule 11.
(h) Correction or Modification of the Record.
(1) If any difference arises as to about whether the record truly discloses what occurred in the trial court, the difference shall must be submitted to and settled by that the trial court and the record made to conform to the truth conformed accordingly.
(2) If anything material to either party is omitted from or misstated in the record by error or accident, or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the supreme court, or the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:
on stipulation of the parties; or
by the trial court before or after the record has been forwarded.
The supreme court, on proper suggestion or of its own initiative, may direct that the an omission or misstatement be corrected, and, if necessary, that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall must be presented to the supreme court.
EXPLANATORY NOTE
Rule 10 was amended, effective 1978; March 1, 1986; January 1, 1995; March 1, 1998; March 1, 1999;_____________________________________.
Rule 10 was amended, effective January 1, 1995. The amendment allows a transcript to be prepared and certified from an electronic recording by someone other than the operator of recording equipment or a court reporter.
Rule 10 was revised stylistically, effective _____________________________. The amendments also limit the transcript in a criminal case to the proceedings relevant to the appeal. Normally, the transcript should be limited to the evidence presented at trial. SOURCES: Joint Procedure Committee Minutes of __________________________; January 30, 1997, pages 9-10; September 26-27, 1996, page 18; April 28-29, 1994, pages 3-4; January 27-28, 1994, page 18; September 23-24, 1993, pages 20-21; March 28-29, 1985, pages 13-14; November 29, 1984, pages 5-6; May 25-26, 1978, pages 7-8; March 16-17, 1978, pages 1, 2, 9-13; January 12-13, 1978, pages 14-15; October 27-28, 1977, pages 2-3; September 15-16, 1977, pages 5-8, 16-18; June 2-3, 1977, pages 2-4. Rule 10, F.R.App.P. Fed.R.App.P. 10.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. §§ 28-18-04, 28-18-05, 28-18-06, 28-18-07, 28-18-08, 28-27-07, 28-27-33, 29-23-01, 29-23-02, 29-23-03, 29-23-04, 29-23-08, 29-23-09, N.D.C.C.
CROSS REFERENCE: Rules N.D.R.App.P. 3 (Appeal as of Right--How Taken), N.D.R.App.P. 7 (Bond for Costs on Appeal in Civil Cases), N.D.R.App.P. 11 (Transmission and Filing of the Record), and N.D.R.App.P. 12 (Docketing the Appeal), N.D.R.App.P.