M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: N.D.R.App.P. 4, Appeal-When Taken
At the last meeting, the Committee approved amendments to N.D.R.App.P. 4 in response to the 1998 revision of Fed.R.App.P. 4. Because of the extensive changes it made by motion, the Committee wanted the opportunity to review the changes. The changes address the situation in which a notice of appeal is filed before disposition of a post-judgment motion. See proposed N.D.R.App.P. 4(a)(4))(B) and (C), and (4)(b)(3)(B) and (C). Ordinarily, when a notice of appeal is filed, the jurisdiction of the Supreme Court attaches and the trial court loses jurisdiction. E.g., J.S.S. v. P.M.Z., 429 N.W.2d 425, 429 (N.D. 1988).
The intent of the amendments is to provide a procedure for remand of the case back to the trial court when a post-judgment motion is filed after a notice of appeal. In addition, under the amendments, if a notice of appeal is filed before disposition of a pending post-judgment motion, the notice does not become effective to appeal the judgment until the order disposing of the post-judgment motion is entered. A new notice of appeal does not need to be filed when a notice of appeal is filed before disposition of a timely post-judgment motion.
The first proposal in the material contains N.D.R.App.P. 4 as approved by the Committee at its January meeting. The second proposal contains additional amendments for the Committee's consideration which are mainly clean-up.
Proposed subdivision (d), however, is new. At the last meeting, the Committee noted this provision is in the federal rule, but not in North Dakota's rule. Subdivision (d) addresses a mistaken filing of a notice of appeal in the Supreme Court.
Penny Miller, Clerk of the Supreme Court, indicates parties do sometimes mistakenly attempt to file notices of appeal with her office instead of the clerk of district court. She sends the notice back with filing instructions. In criminal cases, if pro se, the notice is forwarded to the clerk of district court for filing.
Should subdivision (d) be adopted to provide: "If a notice of appeal in either a civil or a criminal case is mistakenly filed in the supreme court, the clerk of the supreme court must note on the notice the date when it was received and send it to the clerk of district court. The notice is then considered filed in the district court on the date so noted."