RULE 7. BOND FOR COSTS ON APPEAL
IN CIVIL CASES
(a) Civil Cases. The district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal. Rule 8(b) applies to a surety on a bond given under this rule.
(b) Criminal Cases. No undertaking for costs is required in appeals in criminal cases.
Unless (1) an appellant is exempted by law, (2) an appellant has filed a supersedeas bond or other undertaking which includes security for the payment of costs on appeal, or (3) the appellee waives in writing the requirement, in civil cases a bond for costs on appeal or equivalent security shall be filed by the appellant with the clerk of the trial court with the notice of appeal; but security shall not be required of an appellant who is not subject to costs. The bond or equivalent security shall be in the sum or value of $250 unless the trial court fixes a different amount. A bond for costs on appeal shall have sufficient surety, and it or any equivalent security shall be conditioned to secure the payment of costs if the appeal is finally dismissed or the judgment affirmed, or of such costs as the supreme court may direct if the judgment is modified. The bond must show the place of residence of each surety. If a bond or equivalent security in the sum or value of $250 is given, no approval thereof is necessary. After a bond for costs on appeal is filed, an appellee may raise for determination by the clerk of the trial court objections to the form of the bond or to the sufficiency of the surety. The provisions of Rule 8(b) apply to a surety upon a bond given pursuant to this rule.
Rule 7 was amended, effective March 1, 2003. The amended language is derived from Fed.R.App.P. 7 and replaces language derived from superseded statutes. The amendment removes the requirement that an appellant post a bond in all appeals and instead gives the district court discretion to decide when security for costs on appeal should be required.
This rule incorporates the bond for costs into the Appellate Rules rather than the statutes. The amount of the bond is the same under this adaptation of Fed.R.App.P. 7, as under former N.D.C.C. § 28-27-09. Unless the appellant falls within one of the listed exceptions, Rule 7 requires that a bond for costs or equivalent security be filed with the notice of appeal in civil cases. The rule does not preclude the filing of a supersedeas bond and a bond for costs in the same bond. (See Rule 8.) Rule 10(b) requires that proof of service of the order for transcript and a copy of the stipulation of excluded portions, if any, be filed with the clerk of the trial court with the notice of appeal. Rule 12(a) requires that the docket fee accompany the filing of the notice of appeal. Thus in most civil cases the filing of the notice of appeal, the bond for costs or equivalent security, proof of service of the order for transcript, the stipulation of excluded transcript portions, if any, and payment of the docket fee must occur at the same time. Although filing the bond for costs or equivalent security is not required to invoke the jurisdiction of the Supreme Court and does not affect the validity of the appeal, Rule 3(a) provides that failure of the appellant to take this step is grounds for such action as the Supreme Court deems appropriate, which may include dismissal of the appeal. (See, e.g., Community Memorial Hospital v. Olson, 246 N.W.2d 91 (N.D. 1976).
SOURCES: Joint Procedure Committee Minutes of April 26-27, 2001, pages 3-4; September 28-29, 2000, page 13; January 27-28, 2000, page 9; September 23-24, 1999, pages 17-18; May 25-26, 1978, pages 3-5; March 16-17, 1978, page 1; January 12-13, 1978, pages 3-4; October 27-28, 1977, pages 12-13. Fed.R.App.P. 7.
SUPERSEDED: N.D.C.C. §§ 28-27-09, 28-27-10, 28-27-20, 28-27-21, 28-27-22, and 28-27-23.
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. 8 (Stay or Injunction Pending Appeal), N.D.R.App.P. 10 (The Record on Appeal), and N.D.R.App.P. 12 (Docketing the Appeal).