RULE 39. COSTS
To Whom Allowed Against Whom Assessed. In all civil cases, except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; and if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court. Unless the law provides or the court orders otherwise:
(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;
(2) if a judgment is affirmed, costs are taxed against the appellant;
(3) if a judgment is reversed, costs are taxed against the appellee;
(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.
(b) [Reserved for Future Use].
(c) [Reserved for Future Use].
(d) [Reserved for Future Use]. (e)
the Trial District Court. Costs incurred in the preparation and transmission of the record, the costs of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for costs of supersedeas bonds or other bonds to preserve rights pending appeal, the reasonable and necessary costs of preparing briefs under the rules (presumed to be $100.00 for appellant's brief and $75.00 for appellee's brief), and the fee for filing the notice of appeal shall be taxed in the trial court as costs of the appeal in favor of the party entitled to costs under this rule. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs:
(e)Costs on Appeal in Civil Cases Taxable in
(1) the preparation and transmission of the record;
(2) the transcript, if necessary to determine the appeal;
(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal;
(4) the fee for filing the notice of appeal.
Taxable in the Supreme Court.
(1) Taxable Costs. In original proceedings before the court, costs as applicable
in (e) above under subdivision (e) may be taxed by the supreme court clerk in favor of the party entitled to costs. (g) (2) Execution for Costs Taxable in the Supreme Court. An execution signed by the supreme court clerk of the supreme court may issue upon direction of the supreme court to enforce any judgment for costs made and entered in a case which originated in that an original proceeding before the court. The execution may issue and be directed to the marshal, or to the sheriff of any county, and may be enforced in any county in the state in which a transcript of the judgment for costs is filed and docketed. (h) (g) Costs on Appeal of in Criminal Actions. Costs incurred in the appeal of a criminal action shall may be taxed in the trial district court only upon motion of a party to the appeal and order of the supreme court.
Rule 39 was amended, effective March 1, 2003.
Although derived from Fed.R.App.P. 39, this rule is revised to simplify taxation of costs in the appellate court and the
trial district court. It provides for taxation of all costs by the clerk of the trial district court, except in proceedings initiated in the Supreme Court supreme court. Because it is assumed that the usual case will involve typewritten papers, a presumed cost figure for briefs is inserted for convenience in assessing costs. This would ordinarily include the cost of the appendix.
(g)(f) generally restates N.D.C.C. § 28-31-11, which has been superseded and deleted from the century code. It provides a method for execution on a judgment for costs incurred in an action originating in the Supreme Court supreme court
Subdivision (e) was amended, effective March 1, 2003, to delete a provision allowing for the recovery of appellate brief preparation costs.
If costs are not to be assessed as specified in
this rule subdivision (a), the Supreme Court supreme court must enter an appropriate order, either in the decision or in the judgment mandate, and any action by the clerk of the Supreme Court in striking cost provisions out of the mandate form constitutes a constructive order that costs are not to be allowed to either party. State v. Hagge, 231 N.W.2d 773 (N.D. 1975).
mandate form judgment used by the Supreme Court supreme court is signed by the Chief Justice chief justice and contains a form provision for awarding costs. If costs on appeal are not awarded the form provisions are crossed out by the clerk and, if costs are awarded, the party receiving costs is designated by the supreme court clerk. The action by the clerk and the signature by the Chief Justice is chief justice are under the direction of the entire court.
Rule 39 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 39. 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 April 26-26, 2002, pages 22-24; June 21, 1984, page 8; May 25-26, 1978, page 19; March 16-17, 1978, pages 7-8. Fed.R.App.P. 39.
SUPERSEDED: N.D.C.C. §§ 28-31-10 and 28-31-11.
CROSS REFERENCE: N.D.C.C. § 27-04-09 (Marshal of Supreme Court).