RULE 41. MANDATE; CONTENTS; ISSUANCE; EFFECTIVE DATE; STAY
(a) Contents. The mandate consists of a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs.
(b) When Issued. The court's mandate must issue 21 days after the entry of judgment or 7 days after entry of an order denying a timely petition for rehearing. The court may shorten or extend the time.
(c) Effective Date. The mandate is effective when issued.
(d) Staying the Mandate.
(1) On Petition for Rehearing or Motion. The timely filing of a petition for rehearing or a motion for stay of the mandate pending an appeal or a petition to the United States Supreme Court for a writ of certiorari will stay the mandate until disposition of the petition or motion, unless the court orders otherwise.
(2) Pending Appeal or Petition for Certiorari. A stay of the mandate pending an appeal or a petition to the United States Supreme Court for a writ of certiorari may be granted upon motion. The stay may not exceed 30 days unless the period is extended for cause shown. If, while the stay is in effect, the party who has been granted a stay files a copy of the petition for the writ with the supreme court clerk, the stay continues until final disposition by the United States Supreme Court. The court must issue the mandate immediately when a copy of an order of the United States Supreme Court affirming the judgment or denying the petition for writ of certiorari is filed. A bond or other security may be required as a condition to the grant or continuance of a stay of the mandate.
Rule 41 was amended, effective March 1, 2003.
This rule is derived from Fed.R.App.P. 41. A motion to the supreme court for a stay pending appeal or petition to the United States Supreme Court for writ of certiorari should be made pursuant to Rule 27.
The party obtaining the stay must file a copy of the notice of appeal or the petition for writ of certiorari with the supreme court in order to continue the stay until the case is disposed of by the United States Supreme Court.
Subdivision (c) was added, effective March 1, 2003. This amendment is intended to clarify that a mandate is effective when issued, not when received by the district court.
Rule 41 was amended, effective March 1, 2003. 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 25-26, 2002, pages 25-26; May 25-26, 1978, pages 20-21. Fed.R.App.P. 41.
SUPERSEDED: N.D.C.C. § 28-27-30.
CROSS REFERENCE: N.D.R.App.P. 27 (Motions) ; 28 U. S. C. § 1257 (State Courts) ; (Appeal; Certiorari).