M E M O
TO: Joint Procedure Committee
FROM: Tom Tudor
RE: Conflict Between N.D.C.C. § 28-20-28 and N.D.R.Ct. 7.1(d)
An apparent conflict between N.D.C.C. § 28-20-28 and N.D.R.Ct. 7.1(d) has been brought to the attention of the Committee. Both the statute and the rule establish a procedure for the satisfaction of a judgment by a judgment debtor either when no person having the authority to satisfy the judgment may be found or when the person having authority to satisfy the judgment refuses to do so.
Section 28-20-28 provides that, in either event, the debtor may file an affidavit in the office of the clerk of the district court in which the judgment was rendered and may pay the amount due on the judgment to the clerk. The clerk is required to receive the money and to note satisfaction of the judgment on the judgment docket and on the register of the action in which the judgment was entered. The clerk is then required to deliver to the debtor a certificate reciting the receipt by the clerk of the money in satisfaction of the judgment and that the judgment is fully paid and satisfied of record.
Under Rule 7.1(d), in the same situation, a money judgment may be satisfied by the court upon written motion and affidavit of the judgment debtor. If the motion is granted, the court is required to enter an order directing the clerk to receive the amount of the judgment with interest and costs. After payment, the court is required to enter an order satisfying the judgment and showing the amount deposited with the clerk.
Under the statute, the clerk has independent authority to satisfy a judgment, upon receipt of the affidavit and payment of the judgment amount; under the rule, the clerk has no independent authority to satisfy a judgment -- the judgment may be satisfied only by entry of an order of the court.
Addressing the question of a conflict between a rule and a statute, the North Dakota Supreme Court has stated:
Article VI, Section 3 provides in part that "[t]he supreme court shall have authority to promulgate rules of procedure, including appellate procedure, to be followed by all the courts of this state; . . ." This constitutional provision places "final authority over procedural rules" with our court. (Citation omitted.) Although statutorily-enacted rules of procedure which supplement the rules we have promulgated may remain in effect until superseded or amended by this court (citations omitted), Article VI, Section 3, mandates that a court-promulgated procedural rule prevails in a conflict with a legislatively-enacted rule of procedure. (Citations omitted.)
City of Fargo v. Dawson, 466 N.W.2d 584, 586 n.4 (N.D. 1991). See also N.D.C.C. §§ 27-02-08 and 27-02-09, which provide in relevant part:
27-02-08. Rules of pleading, practice, and procedure may be made by supreme court. The supreme court of this state may make all rules of pleading, practice, and procedure which it may deem necessary for:
1. The administration of justice in all civil and criminal actions, remedies, and proceedings in any and all courts of this state....
27-02-09. Statutes regulating procedure effective as rules of supreme
court. All statutes relating to pleadings, practice, and procedure in civil and criminal actions, remedies, or proceedings, enacted by the legislative assembly, have force and effect only as rules of court and remain in effect unless and until amended or otherwise altered by rules promulgated by the supreme court.
Section 28-20-08 and Rule 7.1 are in conflict and, based upon the above authorities, Rule 7.1 prevails. The explanatory note to Rule 7.1 is amended to reflect this.