M E M O
TO: Joint Procedure Committee
FROM: Jim Harris
RE: N.D.R.App.P. 7
At its September 1999 meeting, the Committee decided to recommend repealing N.D.R.App.P. 7. At the September 2000 meeting, it was indicated N.D.R.App.P. 7 serves a significant purpose for dealing with some litigious pro se litigants and the Committee directed staff to prepare a draft of N.D.R.App.P. 7 following F.R.App.P. 7. That draft is on pages 34-36 of the meeting materials.
The Committee also indicated it wanted to look at statutes that had been superseded by N.D.R.App.P. 7 to see if any further action was necessary because those statutes had been superseded. See Minutes page 13. Rule 7, N.D.R.App.P., lists the following statutes as superseded: N.D.C.C. §§ 28-27-09, 28-27-10, 28-27-20, 28-27-21, 28-27-22, and 28-27-23.
N.D.C.C. § 28-27-09 provided:
28-27-09. Appeal ineffectual without undertaking.--To render an appeal effectual for any purpose, an undertaking must be executed on the part of the appellant by at least two sureties to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal not exceeding two hundred fifty dollars.
N.D.C.C. § 28-27-10 provided:
28-27-10. Deposit for undertaking--Waiver.--In lieu of any undertaking, the appellant, under any provision of this chapter, may deposit a sum of money equal to the amount for which the undertaking is required to be given with the clerk of court in which the judgment or order appealed from is entered, who shall give him a receipt therefor. In lieu of the service of such undertaking, he may serve a notice of the making of the deposit. Such deposit and notice shall have the same effect as the service of the required undertaking and shall be held to answer the event of the appeal upon the terms prescribed for the undertaking in lieu of which the same is deposited. Any such undertaking and deposit may be waived in writing by the respondent for whose benefit the same is required to be made and such waiver shall have the same effect as the giving of the undertaking would have had.
N.D.C.C. § 28-27-20 provided:
28-27-20. When new undertaking required.--The supreme court, in its discretion, upon satisfactory proof that any of the sureties to an undertaking given under this chapter has become insolvent or that his circumstances have become so precarious that there is reason to apprehend that the undertaking is insufficient security, may require the appellant to file and serve a new undertaking with such sureties and in such time as shall be prescribed, and in default thereof the appeal shall be dismissed, or the stay of proceedings vacated, and the execution or performance of the judgment or order allowed to be enforced without further delay.
N.D.C.C. § 28-27-21 provided:
28-27-21. Undertakings in one instrument or several.--The undertakings required by this chapter may be in one instrument or in several at the option of the appellant. The original must be filed with the notice of the appeal and a copy showing the residence of the sureties must be served with the notice of appeal.
N.D.C.C. § 28-27-22 provided:
28-27-22. Determining amount and effect of undertaking--Notice--Supreme court may make order.--When the sum or effect of any undertaking is required under the foregoing provisions to be fixed by the court, at least twenty-four hours' notice of the application therefor shall be given the adverse party. When the court from which the appeal is taken or desired to be taken shall neglect or refuse to make any order or direction, not wholly discretionary, necessary to enable the appellant to stay proceedings upon an appeal, the supreme court, or one of the justices thereof, shall make such order or direction.
N.D.C.C. § 28-27-23 provided:
28-27-23. Sureties must justify.--An undertaking upon an appeal shall be of no effect, unless it is accompanied by the affidavit of the sureties in which each surety shall state that he is worth a certain sum mentioned in such affidavit over and above all his debts and liabilities in property within this state not by law exempt from execution. Such sum so sworn to by such sureties in the aggregate shall be double the amount specified in said undertaking. The respondent, however, may except to the sufficiency of the sureties within ten days after such notice of the appeal and unless they or other sureties justify within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days.
Additionally, N.D.C.C. § 28-27-09.1 currently provides:
28-27-09.1. From whom undertaking not required unless ordered by court. When the state, or any state officer, or state board, in a purely official capacity, or any public corporation, or any municipal corporation within the state, takes an appeal, service of the notice of appeal perfects the appeal and stays the execution or performance of the judgment or order appealed from and no undertaking need be given, but the supreme court on motion may require sureties to be given in such form and manner as it shall prescribe as a condition of the further prosecution of the appeal.