RULE 3. APPEAL AS OF RIGHT--HOW TAKEN
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(d) Service of the Notice of Appeal. The clerk of the trial court shall
causemail or send by third-party commercial carrier a copy of the notice of appeal to be mailedto the clerk of the supreme court and to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party's last known address.
In criminal cases, habeas corpus proceedings, or post-conviction proceedings, the clerk shall also
mailedsent the date on which the notice of appeal was filed. Failure of the clerk to causesend the notice to be maileddoes not affect the validity of the appeal. Service is sufficient notwithstanding the death of a party or the party's counsel. The clerk shall note in the docket the names of the parties to whom copies are mailedsent, withand the date of mailingthey were sent.
The title of the action is not to be changed in consequence of the appeal.
Rule 3 was amended, effective January 1, 1988; March 1, 1999.
The federal rules governing appeal as of right are adopted for general use because the appeals by permission contemplated by federal practice are absent from our appellate structure. Rule 3, FRAppP, is substantially adopted in this rule.Rule 3 is patterned after Rule 3, Fed.R.App.P. Nothing other than the timely filing of the notice of appeal in the trial court is required to give the Supreme Court jurisdiction over the appeal. After the party files the notice, the clerk of the trial court mailssends copies to the Clerk of the Supreme Court and to the opposing parties. For the service of other papers, these rules place the responsibility of service on counsel rather than the Clerk.
It should be noted
thatRule 10(b) requires thatproof of service of the order for transcript and a copy of the stipulation of excluded portions, if any, to be filed with the notice of appeal, Rule 12(a) requires the docket fee to accompany the filing of the notice of appeal, and Rule 7 requires thata bond for costs or equivalent security be filed with the notice of appeal in civil cases.
Subdivision (a) provides
thatfailure to follow any Rule may result in dismissal of the appeal, and award of costs, or other appropriate action. For a brief summary of many of the cases decided by the North Dakota Supreme Court on this subject, see Gerhardt v. Fleck, 251 N.W.2d 764, 766-767 (N.D. 1977).
Subdivision (d) was amended, effective January 1, 1988. The amendment tracks in part the 1986 amendment to the Federal Rule. The amendment is technical in nature with no substantive change.
Subdivision (d) was amended, effective March 1, 1999, to allow copies to be sent via a carrier as an alternative to mail.
SOURCES: Procedure Committee Minutes of January 29-30, 1998, page 21; February 19-20, 1987, pages 4-5; September 18-19, 1986, pages 12-13; May 25-26, 1978, page 3; March 16-17, 1978, page 1; January 12-13, 1978, pages 2-3; September 15-16, 1977, pages 4-5. Rule 3, FRAppP; § 3.13(b) ABA Standards Relating to Appellate Courts (Approved Draft, 1977).
SUPERSEDED: §§ 28-18-09, 28-27-05, 28-27-26, 29-28-05, 29-28-20, 29-28-21, NDCC.
CROSS REFERENCE: Rule 7 (Bond for Costs on Appeal in Civil Cases), 10 (The Record on Appeal), 11 (Transmission and Filing of the Record), 12 (Docketing the Appeal), and 31 (Filing and Service of Briefs), NDRAppP; Rule 54(b), NDRCivP (Judgment Upon Multiple Claims or Involving Multiple Parties).