RULE 3. APPEAL AS OF RIGHT--HOW TAKEN
(a) Filing the Notice of Appeal.
(1) An appeal permitted by law as of right from a
trial district court to the supreme court shall may be taken only by filing a notice of appeal with the clerk of the trial district court within the time allowed by Rule 4. Failure of an appellant
(2) An appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for
such action as the court deems appropriate, which may include the supreme court to act as it considers appropriate, including dismissal of dismissing the appeal.
(b) Joint or Consolidated Appeals.
If two or more persons parties are entitled to appeal from a district court judgment or order, of a trial court and their interests are such as to make joinder practicable, they may file a joint notice of appeal. , or may join in appeal after filing separate timely notices of appeal, and they They may thereafter then proceed on appeal as a single appellant. Appeals may be consolidated by order of the supreme court upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.
(c) Content of the Notice of Appeal. The notice of appeal
(1) specify the party or parties taking the appeal;
shall designate the judgment, order, or part thereof appealed from; and shall being appealed;
(3) name the court to which the appeal is taken.
Service of Serving the Notice of Appeal.
(1) The clerk of
the trial court shall district court must promptly serve notice of the filing of a notice of appeal mail or send by mailing or sending by third-party commercial carrier a copy of the notice of appeal to the clerk of the supreme court clerk and to counsel of record for each party other than the appellant, each party's counsel of record - excluding the appellant's - or, if a party is not represented by counsel proceeding pro se, to the party's last known address. The clerk of district court must note on each copy the date when the notice of appeal was filed.
(2) In criminal cases, habeas corpus proceedings, or post-conviction proceedings, the clerk of district court
shall must also send a copy of the docket entries to the clerk of the supreme court clerk with the copy of the notice of appeal. The clerk shall note on each copy sent the date on which the notice of appeal was filed.
Failure of the clerk The clerk of district court's failure to send the serve a copy of the notice of appeal does not affect the validity of the appeal. Service is sufficient notwithstanding the death of a party or the party's counsel. The clerk of district court shall must note in on the docket the names of the parties to whom the clerk sends copies are sent, and the date they were sent. Service is sufficient despite the death of a party or the party's counsel.
(4) The title of the action is not to be changed
in as a consequence of the appeal.
Rule 3 was amended, effective January 1, 1988; March 1, 1999; March 1, 2003 .
Rule 3 is patterned after Fed.R.App.P. 3. Nothing other than the timely filing of the notice of appeal in the trial court is required to give the
Supreme Court supreme court jurisdiction over the appeal. After the a party files the a notice of appeal, the clerk of the trial district court sends copies to the Clerk of the Supreme Court supreme court clerk and to the opposing each of the parties. For the service of other papers, these rules place the responsibility of service on counsel rather than the Clerk clerk of district court.
It should be noted, Rule 10(b) requires proof of service of the order for transcript and a copy of the stipulation of excluded portions, if any, to be filed with the notice of appeal, Rule 12(a) requires the docket fee to accompany the filing of the notice of appeal, and Rule 7 requires a bond for costs or equivalent security be filed with the notice of appeal in civil cases.
Subdivision (a) provides failure to follow any
Rule rule may result in dismissal of the appeal, and an award of costs, or other appropriate action.
Subdivision (d) was amended, effective March 1, 1999, to allow copies to be sent via a third-part commercial carrier as an alternative to mail.
Rule 3 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 3. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.
SOURCES: Joint Procedure Committee Minutes of September 23-24, 1999, page 10; January 29-30, 1998, page 21; February 19-20, 1987, pages 4-5; September 18-19, 1986, pages 12-13; May 25-26, 1978, page 3; March 16-17, 1978, page 1; January 12-13, 1978, pages 2-3; September 15-16, 1977, pages 4-5.
Rule 3, Fed.R.App.P. 3; § 3.13(b) ABA Standards Relating to Appellate Courts (Approved Draft, 1977).
SUPERSEDED: N.D.C.C. §§ 28-18-09, 28-27-05, 28-27-26, 29-28-05,
N.D.R.App.P. 7 (Bond for Costs on Appeal in Civil Cases), N.D.R.App.P. 10 (The Record on Appeal), N.D.R.App.P. 11 (Transmission and Filing of the Record), N.D.R.App.P. 12 (Docketing the Appeal), and N.D.R.App.P. 31 (Filing and Service of Briefs); N.D.R.Civ.P. 54(b) (Judgment Upon Multiple Claims or Involving Multiple Parties).