M E M O
TO:Joint Procedure Committee
RE:Rule 77, N.D.R.Civ.P.; Notice of Entry of Judgment
In Austin v. Towne, 1997 N.D. 59, 18, in her concurrence, Justice Maring urges Rule 77(d), N.D.R.Civ.P., be amended to allow an affidavit of mailing evidencing service of an order or judgment to be recognized as "notice" of entry of judgment.
In Austin, at issue was whether the defendant's Rule 59(j), N.D.R.Civ.P., motion was timely. Id. at 11-12. Under Rule 59(j), "[a] motion to alter or amend the judgment must be served not later than 10 days after notice of entry of the judgment." However, under case law, notice of entry of judgment is not necessary to start the time period for making a motion to alter or amend if the movant has actual knowledge the judgment has been entered. Cf. Lang v. Bank of North Dakota, 377 N.W.2d 575, 576 (N.D. 1985).
In Austin, the plaintiff did not serve notice. However, an affidavit of mailing indicated copies of the district court's finding and order were mailed to the defendant on January 16, 1996. The defendant did not make his motion until June 24, 1996.
The plaintiff argued service of the district court's finding and order equates with actual notice of entry of the order. The court disagreed and held defendant's motion was timely, based on its previous decision in Thorson v. Thorson, 541 N.W.2d 692 (N.D. 1996).
In Thorson, the court rejected the argument an affidavit of mailing an order equates with actual notice under the precedents establishing an exception to the requirement of service of notice of entry of judgment by the prevailing party. Id. at 694-95. The Thorson court concluded: "[A]ctual knowledge of entry of the judgment or order requires action evident on the record on the part of the appealing party. We are then assured that the appealing party indeed had knowledge even though regular procedures were not followed." Id. at 695.
Justice Meschke dissented in Austin by adhering to his special concurrence in Thorson. In Thorson, Justice Meschke stated his position as follows: "When the record shows an attorney has received notice of entry of an order by a mailed copy, I see no need to formalistically require the 'prevailing attorney' . . . to go through the redundant procedures of preparing additional formal documents to give notice of entry. 541 N.W.2d at 698.
Should Rule 77 be amended to recognize service of a judgment as "notice" of entry of judgment?