N.D.R.Civ.P.
RULE 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT
(a) Automatic Stay;- Exceptions- for Injunctions, Receiverships, and Accountings.
Except as stated herein, no execution may issue upon a judgment nor may proceedings be
taken for its enforcement until the expiration of 10 days after notice of its entry if the
opposing party appeared, and 10 days after entry of a judgment by default. Unless otherwise
ordered by the court, an interlocutory or final judgment in an action for an injunction or in
a receivership action, or a judgment or order directing an accounting, may not be stayed
during the period after its entry and until an appeal is taken or during the pendency of an
appeal. The provisions of subdivision (c) govern the suspending, modifying, restoring, or
granting of an injunction during the pendency of an appeal.
Except as stated in this rule, no execution may issue on a judgment, nor may proceedings be taken to enforce it, until 10 days have passed after notice of its entry if the opposing party appeared, and 10 days after entry of a default judgment. But unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken:
(1) an interlocutory or final judgment in an action for an injunction or a receivership; or
(2) a judgment or order that directs an accounting.
(b) Stay on Motion for New Trial or for Judgment Pending the Disposition of a
Motion.
In its discretion and on such conditions for the security of the adverse party as are
proper, the court may stay the execution of or any proceedings to enforce a judgment
pending the disposition of a motion for a new trial or to alter or amend a judgment made
pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to
Rule 60, or of a motion for judgment in accordance with a motion for a directed verdict
made pursuant to Rule 50, or of a motion for amendment to the findings or for additional
findings made pursuant to Rule 52(b).
On appropriate terms for the opposing party's security, the court may stay the execution of a judgment, or any proceedings to enforce it, pending disposition of any of the following motions:
(1) under Rule 50, for judgment as a matter of law;
(2) under Rule 52(b), to amend the findings or for additional findings;
(3) under Rule 59, for a new trial or to alter or amend a judgment; or
(4) under Rule 60, for relief from a judgment or order.
(c) Injunction Pending an Appeal. If an appeal is taken from an interlocutory or final
judgment granting, dissolving, or denying an injunction, the court in its discretion may
suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such
terms as to bond or otherwise as it considers proper for the security of the rights of the
adverse party.
While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights.
(d) Stay Upon with Bond on Appeal. If an appeal is taken, the appellant by giving a
supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a).
The bond may be given at or after the time of filing the notice of appeal. The stay is effective
when the supersedeas bond is approved by the court.
If an appeal is taken, the appellant may obtain a stay by supersedeas bond, except in an action described in Rule 62(a)(1) or (2). The bond may be given on or after filing the notice of appeal. The stay takes effect when the court approves the bond.
(e) Stay in Favor of the State or Agency Thereof Stay Without Bond on an Appeal
by the State, Its Officers, or its Agencies.
If an appeal is taken by the state or governmental subdivision thereof or an officer or
agency thereof or by direction of any department thereof and the operation or enforcement
of the judgment is stayed, no bond, obligation, or other security may be required from the
appellant.
The court must not require a bond, obligation, or other security from the appellant when granting a stay on an appeal by the State, its officers, or its agencies or on an appeal directed by a department of the state government.
(f) Undertaking to Stay Execution for Delivery of Personalty Personal Property on
Appeal.
If the judgment appealed from directs the assignment or delivery of documents or
personal property, the execution of the judgment may not be stayed by the appeal unless the
things required to be assigned or delivered are brought into court or are placed in the custody
of such officer or receiver as the court shall appoint, or unless an undertaking is entered into
on the part of the appellant by at least two sureties, in such sum as the court shall direct, to
the effect that the appellant will obey the order of the appellate court on the appeal.
If the judgment appealed from directs the assignment or delivery of documents or
personal property, the its execution of the judgment may is not be stayed by the on appeal
unless:
(1) the things required to be assigned or delivered are brought into court or are placed
in the custody of such a court-appointed officer or receiver as the court shall appoint; or
(2) unless an undertaking is entered into on the part behalf of the appellant by at least
two sureties, in such for a sum as directed by the court shall direct, to the effect providing
that the appellant will obey the order of the appellate court on the appeal.
(g) To Stay Execution on of Conveyance or Instrument on Appeal. If the judgment
appealed from directs the execution of a conveyance or other instrument, the its execution
of the judgment is not stayed by the on appeal, unless the instrument has been executed and
deposited with the clerk with whom the judgment was entered to abide the appellate court's
judgment of the appellate court.
(h) Undertaking to Stay Execution - for the To Sell or Deliver Realty Sale or Delivery
of Real Property on Appeal.
If the judgment appealed from directs the sale or delivery of possession of real
property, the execution of the same is not stayed unless an undertaking is executed on the
part of the appellant by at least two sureties, in such sum as the court shall direct, to the
effect that during the possession of such property by the appellant he will not commit nor
suffer to be committed any waste thereon and that if the judgment is affirmed he will pay the
value of the use and occupation of the property from the time of the appeal until the delivery
of possession thereof pursuant to the judgment.
If the judgment directs the sale or delivery of possession of real property, its execution is not stayed on appeal unless an undertaking is executed on behalf of the appellant by at least two sureties, for a sum as directed by the court. The undertaking must provide that during the possession of the property, the appellant:
(1) will not commit or allow to be committed any waste on the property; and
(2) if the judgment is affirmed, will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession under the judgment.
(i) Undertaking to Stay Abatement of Nuisance on Appeal. If the judgment appealed
from directs the abatement or restraint of the continuance of a public or private nuisance,
either public or private, the its execution of the judgment is not stayed by the on appeal
unless an undertaking is entered into on the part behalf of the appellant by at least two
sureties, in such for a sum as directed by the court shall direct, to the effect providing that
the appellant will pay all damages which that the opposite opposing party may sustain by the
continuance of the nuisance.
(j) Undertaking to Stay Other Executions on Appeal.
If the judgment appealed from directs the doing of any particular act or thing and no
express there is no statutory provision is made by statute in regard to regarding the
undertaking to be given on appeal therefrom, the execution thereof is not stayed by the on
appeal therefrom unless an undertaking is entered into on the part executed on behalf of the
appellant, in such sum as the court shall direct, and by at least two sureties, to the effect that
the appellant will pay all damages which the opposite party may have sustained by not doing
the particular thing or act directed to be done by the judgment appealed from and to such
further effect as the court in its discretion directs.
If the judgment directs the doing of a particular act and there is no statutory provision regarding the undertaking to be given on appeal, its execution is not stayed on appeal unless an undertaking is executed on behalf of the appellant by at least two sureties, for a sum as directed by the court. The undertaking must provide that the appellant will pay all damages sustained by the opposing by not doing the particular act directed to be done by the judgment and as further provided by the court.
(k) To Stay Intermediate Orders on Appeal.
When an appeal is from an order, the execution or performance thereof must not be
delayed, except upon compliance with such conditions as the court shall direct, and, when
so required, an undertaking must be executed on the part of the appellant by at least two
sureties in such sums and to such effect as the court directs. The effect of the undertaking
must be directed in accordance with the nature of the order appealed from, corresponding
to the provisions of these rules in respect to appeals from judgments, when applicable, and
such provisions must be made in all cases as will properly protect the respondent, and no
appeal from judgments, when applicable, and such provisions must be made in all cases as
will properly protect the respondent, and no appeal from an intermediate order before
judgment stays proceedings unless the court in its discretion orders a stay.
Unless otherwise directed by the court, the execution or performance of an order must not be delayed on appeal. If required, an undertaking must be executed on behalf of the appellant by at least two sureties in an amount and under terms as directed by the court. The terms of the undertaking must be in accordance with the order, and when applicable, must correspond to the provisions of these rules regarding appeals from judgments and no appeal from judgments. The provisions must be made in all cases that will properly protect the respondent. An appeal from an intermediate order before judgment does not stay proceedings unless the court orders otherwise.
(l) Power of Appellate Court's Power Not Limited.
This rule does not limit any power of an appellate court or of a judge or justice
thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore,
or grant an injunction during the pendency of an appeal or to make any order appropriate to
preserve the status quo or the effectiveness of the judgment subsequently to be entered.
This rule does not limit the power of the appellate court or one of its judges or justices:
(1) to stay proceedings, or suspend, modify, restore, or grant an injunction, while an appeal is pending; or
(2) to issue an order to preserve the status quo or the effectiveness of the judgment to be entered.
(m) Stay of Judgment as to With Multiple Claims or Multiple Parties.
If a court has ordered a final judgment under the conditions stated in Rule 54(b), the
court may stay enforcement of the judgment until the entering of a subsequent judgment or
judgments and may prescribe such conditions as are necessary to secure the benefit thereof
to the party in whose favor the judgment is entered.
A court may stay the enforcement of a final judgment entered under Rule 54(b) until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of the stayed judgment for the party in whose favor it was entered.
(n) Order Staying Proceedings. The court may not order a stay of proceedings more
than 20 days except to stay proceedings under an order or judgment appealed from or upon
on previous notice to the adverse opposing party.
EXPLANATORY NOTE
Rule 62 is derived from Rule Fed.R.Civ.P. 62, FRCivP, with several added
provisions, and changes to subdivisions (a), (b), (c), (d) and (e) to conform to the court
system of North Dakota. Subsection (a) was amended in 1983, effective September 1, 1983,
to provide that no execution shall issue upon a judgment nor shall proceedings be taken for
its enforcement until the expiration of 10 days after "notice of" its entry, rather than its entry
except in a default judgment the time begins to run from the date of entry. Federal
subdivision (f), concerning a stay according to state law, was deleted. In its place,
subdivisions (f), (g), (h), (i), (j), and (k), derived from Sections 28-2712 through 28-2717,
NDRC 1943, were inserted. These contain mostly provisions requiring an undertaking to
stay certain proceedings. Subdivisions (l) and (m) are identical to subdivisions (g) and (h)
in the federal rule. Subdivision (n), taken from Section 28-2807, NDRC 1943, was added
setting a time limit on how long an order may be made effective.
Rule 62 was amended, effective _______________, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. 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
30-October 1, 1982, pages 6 and 12-15; November 29-30, 1979, page 19; Rule Fed.R.Civ.P.
62, FRCivP.
Statutes Affected:
Superseded: Section 28-2102, 28-2711, 28-2712, 28-2713, 28-2714, 28-2715,
28-2716, 28-2717, 28-2718, 28-2719, 28-2807, NDRC 1943.
Cross Reference: Rules N.D.R.Civ.P. 50 (Motion for a Directed Verdict),
N.D.R.Civ.P. 52 (Findings by the Court), N.D.R.Civ.P. 54 (Judgment Costs), N.D.R.Civ.P.
59 (New Trials Amendment of Judgments), and N.D.R.Civ.P. 60 (Relief from Judgment or
Order), N.D.R.Civ.P.; Rule N.D.R.App.P. 8 (Stay or Injunction Pending Appeal),
N.D.R.App.P.