RULE 8. STAY OR INJUNCTION PENDING APPEAL
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(b) Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. Relief available in the supreme court under this rule may be conditioned upon the filing of a bond or other appropriate security in the trial court. If security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the trial court and irrevocably appoints the clerk of the trial court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. A surety's liability may be enforced on motion in the trial court without the necessity of an independent action. The motion and the notice of the motion the trial court prescribes may be filed with the clerk of the trial court, who shall forthwith mail or send by third-party commercial carrier copies to the sureties if their addresses are known.
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Rule 8 was amended, effective January 1, 1988; March 1, 1999.
Derived from Rule 8, FRAppP, this rule provides
a clear statement ofthe procedure for obtaining a stay or similar relief with respect to the action of the court, pending appeal. The previous appellate practice rules provided no clear definition of this matter, except as to the statutes governing stays in criminal cases.
Subdivision (b) was amended, effective March 1, 1999, to allow copies of the motion to be sent via a commercial carrier as an alternative to mail.
Subdivision (c) assures
thatthe procedure for staysa stay in a criminal mattersmatter is consistent with Rule 38, North Dakota Rules of Criminal Procedure.
In this rule the authority of a single justice to act on procedural matters is first mentioned. These rules contemplate that many applications for procedural relief may be handled by a single justice, with substantial savings in time and reduction of the actions requiring a quorum of the Court.
Subdivision (b) was amended, effective January 1, 1988, to track the 1986 amendment to the Federal Rule. The amendment is technical in nature with no substantive change.
SOURCES: Procedure Committee Minutes of January 29-30, 1998, page 21; February 19-20, 1987, pages 5-6; September 18-19, 1986, pages 13-14; May 25-26, 1978, page 5; March 16-17, 1978, page 16. Rule 8, FRAppP.
SUPERSEDED: § 28-27-22, NDCC.
CROSS REFERENCE: Rules 7 (Bond for Costs on Appeal in Civil Cases), and 9 (Release in Criminal Cases), NDRAppP Rule 38, NDRCrimP (Stay of Execution and Relief Pending Appeal).