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 be issued on a judgment, nor may proceedings be taken to enforce it, until 14 days have passed after notice of its entry if the opposing party appeared, and 14 days have passed 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 an agency or subdivision 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 directs the assignment or delivery of documents or personal property, its execution is not stayed on appeal unless:
(1) the matters required to be assigned or delivered are brought into court or are placed in the custody of a court-appointed officer or receiver; or
(2) an undertaking is entered into on behalf of the appellant by at least two sureties, for a sum as directed by the court, providing that the appellant will obey the order of the appellate court on 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
provision is made by statute in regard to the undertaking to be given on appeal therefrom, the
execution thereof is not stayed by the appeal therefrom unless an undertaking is entered into
on the part 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 performing 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 party by not performing 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.
While an appeal is pending, this rule does not limit the power of the appellate court or one of its judges or justices to:
(1) stay proceedings; or
(2) suspend, modify, restore, or grant an injunction; or
(3) 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 21 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 was amended, effective September 1, 1983; March 1, 2011.
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.
Subdivision (a) was amended, effective March 1, 2011, to increase the time of the automatic stay from 10 to 14 days.
Subdivision (n) was amended, effective March 1, 2011, to increase the time for an order staying proceedings from 20 to 21 days.
Rule 62 was amended, effective March 1, 2011, 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 April 29-30, 2010, page 16; January 28-29,
2010, page 12; 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.