RULE 10. THE RECORD ON APPEAL
(a) Composition of Record on Appeal. The following items constitute the record on appeal:
(1) the original papers and exhibits filed in the district court;
(2) two copies of the transcript, if any; and
(3) a certified copy of the docket entries prepared by the clerk of district court.
(b) Order for Transcript of Proceeding.
(1) Appellant's Duty to Order. If an appeal is taken in a case in which an evidentiary hearing was held, the appellant must order a transcript of the proceedings as follows:
(A) two copies of the transcript must be ordered for the supreme court;
(B) one copy of the transcript must be ordered for each unrepresented party and each party separately represented;
(C) a complete transcript must be ordered, unless a stipulation is obtained from all affected parties specifying the portions that are not required for the purposes of the appeal;
(D) a transcript of any record of jury voir dire is not required, unless specifically requested by a party; and
(E) the order for a transcript, and a copy of the stipulation of excluded portions, if applicable, must be filed with the clerk of district court with the notice of appeal.
(2) Information for Order. An order for a transcript must include the following information:
(A) the caption of the case;
(B) the date or dates of trial;
(C) the number of copies required; and
(D) the names and addresses of the parties to be served with copies.
(3) Unreasonable Refusal to Stipulate. If a party affected by the appeal unreasonably refuses to stipulate to exclude from the transcript portions of the record not necessary to the resolution of the issues raised by the appellant, the party proposing the stipulation may apply to the district court for an order requiring the refusing party to pay for the unnecessary portions of the transcript and reasonable attorney's fees for making the application.
(4) Clerk of District Court to Transmit Order. Within 3 seven days after an order for transcript is filed, the clerk must transmit the order to the person designated by the district court to prepare the transcript.
(c) Preparation of Transcript.
(1) Time for Furnishing Transcript. Within 50 days after the order for transcript is filed with the clerk of district court, the person preparing the transcript must complete and file the transcript with the supreme court clerk unless an extension of time is received under subdivision (d).
(2) Submission of Transcript.
(A) The person preparing the transcript must serve and file the transcript as follows:
(i) a copy of the transcript must be served on each party designated in the order for transcript;
(ii) proof of service of the transcript must be filed with the supreme court clerk;
(iii) two copies of the transcript must be filed with the supreme court clerk; and
(iv) an electronic copy of the transcript must be filed with, or the transcript must be electronically transmitted to, the supreme court clerk. All electronic transcripts must contain in a single file all the information contained in the paper transcript, including the cover, table of contents, and certifications, in the same order as in the paper transcript. The electronic transcript must include fixed line number and page numbers corresponding to those in the paper transcript.
(B) In an appeal of the determination of an administrative agency, the agency must file an electronic copy of the transcript or electronically transmit the transcript to the supreme court clerk unless the agency certifies the transcript was not prepared on a computer or word processor.
(3) Financial Arrangements. The appellant or a party obligated under paragraph (b)(3) to pay transcription costs must provide advance payment for the estimated cost of preparing the transcript, provided:
–the person preparing the transcript serves a written estimate of the cost and a demand for payment on the appellant within 10 14 days after receipt of the order for transcript; or
–the person preparing the transcript serves a written estimate of the cost and a demand for payment on a party obligated by court order to pay transcription costs within 10 14 days after receipt of the order.
If the person preparing the transcript fails to serve a timely written estimate and a timely demand for payment, the right to demand advance payment is waived. Advance payment is not required if transcription costs are to be paid by the state or an agency or subdivision of the state. If the appellant or obligated party fails to make the advance payment within 10 14 days after service of the demand, the person preparing the transcript may suspend preparation of the transcript until paid.
(d) Extension of Time.
(1) Good Cause. If the person preparing the transcript is unable to complete and file the transcript within 50 days after the order for transcript is filed, the district court for good cause shown may extend the time for completion of the transcript.
If preparation of the transcript has been suspended for failure of any party to make a timely advance payment upon demand, the district court for good cause shown by the party responsible for the delay, may extend the time for completion of the transcript, on such terms as the court may order.
(2) Request for Extension. A request for an extension of time must be made within the time originally prescribed or within an extension previously granted for completion of the transcript. A district court may not extend the time for more than 90 days from the date when the first notice of appeal was filed. If the district court is without authority to grant the relief sought or has denied a request for an extension of time, the supreme court may on motion for good cause shown extend the time for completion of the transcript beyond the time allowed or fixed. If a request for an extension of time has been previously denied, the motion must set forth the denial and state the reasons for the denial, if any were given by the district court.
(e) Form of Transcript. Each transcript must conform to the requirements of Rules 31(b)(2) and 32 except as otherwise provided:
– lines must be numbered on the left margin;
– each page may not contain more than 27 lines or less than 25 lines;
– the left margin may not be more than 1 3/4 inches wide;
– the right margin may not be more than 3/8 inches wide;
– each question and answer must begin on a new line;
– an indentation for a new speaker or paragraph may not be more than 10 spaces from the left margin;
– each volume must be indexed as to every witness and exhibit;
– each page must be numbered consecutively;
– the accuracy of the transcript must be certified by the person preparing the transcript.
(f) Statement of Evidence When Proceedings Not Recorded or When Transcript Unavailable. If a transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 10 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be filed with the supreme court clerk by the appellant within 60 days after the notice of appeal is filed.
(g) Agreed Statement as Record on Appeal. In place of the record on appeal as defined in subdivision (a) , the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the supreme court's resolution of the issues. If the statement is truthful, it, -- together with any additions that the district court may consider necessary to a full presentation of the issues on appeal -- must be approved by the district court and must then be certified to the supreme court as the record on appeal. The clerk of district court must then send the statement to the supreme court within the time provided by Rule 11.
(h) Correction or Modification of Record.
(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by the district court and the record conformed accordingly.
(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:
– on stipulation of the parties; or
– by the district court before or after the record has been forwarded.
The supreme court, on proper suggestion or of its own initiative, may direct that an omission or misstatement be corrected, and, if necessary, that a supplemental record be certified and transmitted. All other questions as to the form and content of the record must be presented to the supreme court.
Rule 10 was amended, effective 1978; March 1, 1986; January 1, 1995; March 1, 1998; March 1, 1999; March 1, 2001; technical amendments effective August 1, 2001; March 1, 2003; March 1, 2004; March 1, 2005; March 1, 2008; ____________________.
Rule 10 was amended, effective January 1, 1995. The amendment allows a transcript to be prepared and certified from an electronic recording by someone other than the operator of recording equipment or a court reporter.
Rule 10 was amended, effective March 1, 2003. The language and organization of the rule were changed to make the rule more easily understandable and to make style and terminology consistent throughout the rules.
Subdivisions (a) and (c) were amended, effective March 1, 2005, to require only two copies of the transcript to be ordered and submitted to the supreme court.
Subdivision (b) was amended, effective March 1, 2004, to eliminate any requirement to obtain a transcript of the voir dire record, unless such a transcript is specifically requested by a party.
Subdivision (b) was amended, effective March 1, 2008, to require that a copy of the transcript be ordered for each unrepresented party.
Paragraph (b)(4) was amended, effective ______________, to increase the time for a clerk to transmit the order for transcript from three to seven days.
Subdivision (c) was amended, effective March 1, 2008, to eliminate references to computer diskettes.
Paragraph (c)(3) was amended, effective ______________, to increase the time periods regarding transcription costs from 10 to 14 days.
Subdivision (f) was amended, effective ______________, to increase the time for an appellee to serve objections or propose amendments to a statement of the proceedings from 10 to 14 days.
Sources: Joint Procedure Committee Minutes of ______________; January 25, 2007, page 16; January 30-31, 2003, pages 3-4; September 26-27, 2002, pages 14-15; April 26-27, 2001, pages 8-9; January 27-28, 2000, pages 9-12; September 23-24, 1999, pages 19-21; January 30, 1997, pages 9-10; September 26-27, 1996, page 18; April 28-29, 1994, pages 3-4; January 27-28, 1994, page 18; September 23-24, 1993, pages 20-21; March 28-29, 1985, pages 13-14; November 29, 1984, pages 5-6; May 25-26, 1978, pages 7-8; March 16-17, 1978, pages 1, 2, 9-13; January 12-13, 1978, pages 14-15; October 27-28, 1977, pages 2-3; September 15-16, 1977, pages 5-8, 16-18; June 2-3, 1977, pages 2-4. Fed.R.App.P. 10.
Superseded: N.D.C.C. §§ 28-18-04, 28-18-05, 28-18-06, 28-18-07, 28-18-08, 28-27-07, 28-27-33, 29-23-01, 29-23-02, 29-23-03, 29-23-04, 29-23-08, 29-23-09.
Cross Reference: N.D.R.App.P. 3 (Appeal as of Right--How Taken) , N.D.R.App.P. 7 (Bond for Costs on Appeal in Civil Cases) , N.D.R.App.P. 11 (Transmission and Filing of the Record) , and N.D.R.App.P. 12 (Docketing the Appeal).