RULE 3. APPEAL AS OF RIGHT -- HOW TAKEN (a) Filing the Notice of Appeal.
(1) An appeal permitted by law as of right from a district court to the supreme court may
be taken only by filing a notice of appeal with the clerk of the supreme court
within the time allowed by Rule 4.
(2) An appellant's failure to take any step other than the timely filing of a notice of appeal and payment of any required docket fee does not affect the validity of the appeal, but is ground only for the supreme court to act as it considers appropriate, including dismissing the appeal.
(b) Joint or Consolidated Appeals.
When two or more parties are entitled to appeal from a district court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant. Appeals may be consolidated by order of the supreme court upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.
(c) Content of the Notice of Appeal.
The notice of appeal must:
(1) specify the party or parties taking the appeal;
(2) designate the judgment, order, or part thereof being appealed;
(3) name the court to which the appeal is taken; and
(4) in an appeal from a civil case or a post-conviction relief proceeding, include a preliminary statement of issues.
(d) Serving the Notice of Appeal.
The When a notice of appeal is filed, the clerk of
district court the supreme court must
promptly serve notice of the filing of a notice of appeal by mailing or sending by
commercial carrier a copy of the notice of appeal to the supreme court clerk file
filing with the district court clerk using the Odyssey® system and serve notice of
by sending a copy of the notice of appeal and any attachments by mail, third-party
commercial carrier, or electronic means to each party's counsel of record -- excluding the
appellant's counsel -- or, if a party is proceeding pro se
self-represented and does not have
an e-mail address, to the party's last known address. The clerk of district
court the supreme
court must note on each copy the date when the notice of appeal was filed.
In criminal cases, habeas corpus proceedings, or post-conviction proceedings,
of district court must also send a copy of the docket entries to the supreme court clerk with
the copy of the notice of appeal.
(3) The clerk of district court's the supreme
court's failure to serve a copy of the notice of
appeal does not affect the validity of the appeal. The clerk of district court
the supreme court
must note on the docket the names of the parties to whom the clerk sends copies, and the
date they were sent. Service is sufficient despite the death of a party or the party's counsel.
(4) (3) The title of the action is not to be changed as a
consequence of the appeal.
Rule 3 was amended, effective January 1, 1988; March 1, 1999; March 1, 2003; March 1, 2007; October 1, 2014.
Rule 3 is patterned after Fed.R.App.P. 3.
Subdivision (a) was amended, effective October 1, 2014, to require
Nothing other than the
timely filing of the notice of appeal in the trial with the clerk of
the supreme court is required
rather than the clerk of district court. Timely filing of the notice of appeal is
required to give
the supreme court jurisdiction over the appeal. Any required docket fee must be paid before
the appeal will be filed. After a party files a notice of appeal, the clerk of district
copies to the supreme court clerk of the supreme court sends
notice to the district court clerk
and to each of the parties. For the service of other papers
documents, these rules place the
responsibility of service on counsel rather than the clerk of district court
the supreme court.
It should be noted, Rule 10(b) requires proof 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 a bond for costs or equivalent security be filed with the notice of appeal in civil cases.
Subdivision (a) provides failure to follow any rule may result in dismissal of the appeal, an award of costs, or other appropriate action.
Subdivision (c) was amended, effective October 1, 2014, to require the appellant in a civil action or post-conviction proceeding to include a preliminary list of the issues on appeal with the notice of appeal. The purpose of the requirement is to provide the court information to make a preliminary determination whether oral argument is unnecessary. In this list, the appellant is expected to provide the court notice of the issues of which the appellant is aware at the time the notice of appeal is filed.
Subdivision (d) was amended, effective March 1, 1999, to allow copies to be sent via a third-party commercial carrier as an alternative to mail.
Subdivision (d) was amended, effective October 1, 2014, to require the clerk of the supreme court to notify the clerk of district court of the filing of the notice of appeal and to send a copy of the notice of appeal to counsel of record and any self-represented parties.
Paragraph (d)(4) requires the title of the action to remain the same on appeal. Consistent with N.D.R.App.P. 1(c), the party who first files the notice of appeal must be designated as the appellant in the title and the responding party must be designated as the appellee.
Rule 3 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 3. 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.
Rule 3 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court" and "paper" with "document."
Sources: Joint Procedure Committee Minutes of September 26, 2013, pages 14-15; September 22-23, 2005, page 25; September 23-24, 1999, pages 9-10; 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. Fed.R.App.P. 3; § 3.13(b) ABA Standards Relating to Appellate Courts (Approved Draft, 1977).
Superseded: N.D.C.C. §§ 28-18-09, 28-27-05, 28-27-26, 29-28-05, 29-28-20, 29-28-21.
Cross Reference: N.D.R.App.P. 1 (Scope of Rules), N.D.R.App.P. 7 (Bond for Cost on Appeal in Civil Cases), N.D.R.App.P. 10 (The Record on Appeal), N.D.R.App.P. 11 (Transmission and Filing of the Record), N.D.R.App.P. 12 (Docketing the Appeal), and N.D.R.App.P. 31 (Filing and Service of Briefs), N.D.R.Civ.P. 54(b) (Judgment Upon Multiple Claims or Involving Multiple Parties).