RULE 3. APPEAL AS OF RIGHT--HOW TAKEN
1 (a) Filing the Notice of Appeal.
2 (1) An appeal permitted by law as of right from a district court to the
3 supreme court may be taken by filing a notice of appeal with the clerk of the
4 supreme court within the time allowed by Rule 4.
5 (2) An appellant's failure to take any step other than the timely filing of a
6 notice of appeal and payment of any required docket fee does not affect the
7 validity of the appeal, but is ground only for the supreme court to act as it
8 considers appropriate, including dismissing the appeal.
9 (b) Joint or Consolidated Appeals. When two or more parties are entitled to
10 appeal from a district court judgment or order, and their interests make joinder
11 practicable, they may file a joint notice of appeal. They may then proceed on
12 appeal as a single appellant. Appeals may be consolidated by order of the supreme
13 court upon its own motion or upon motion of a party, or by stipulation of the
14 parties to the several appeals.
15 (c) Content of the Notice of Appeal. The notice of appeal must:
16 (1) specify the party or parties taking the appeal;
17 (2) designate the judgment, order, or part thereof being appealed;
18 (3) name the court to which the appeal is taken; and
in an appeal from a civil case or a post-conviction relief
20 include a preliminary statement of issues.
21 (d) Serving the Notice of Appeal.
22 (1) When a notice of appeal is filed, the clerk of the supreme court must
23 promptly file notice of filing with the district court clerk using the Odyssey?
24 system and serve notice of the filing by sending a copy of the notice of appeal and
25 any attachments by mail, third-party commercial carrier, or electronic means to
26 each party's counsel of record - excluding the appellant's counsel - or, if a party is
27 self-represented and does not have an e-mail address, to the party's last known
28 address. The clerk of the supreme court must note on each copy the date when the
29 notice of appeal was filed.
30 (2) The clerk of the supreme court's failure to serve a copy of the notice of
31 appeal does not affect the validity of the appeal. The clerk of the supreme court
32 must note on the docket the names of the parties to whom the clerk sends copies,
33 and the date they were sent. Service is sufficient despite the death of a party or the
34 party's counsel.
35 (3) The title of the action is not to be changed as a consequence of the
37 EXPLANATORY NOTE
38 Rule 3 was amended, effective January 1, 1988; March 1, 1999; March 1,
39 2003; March 1, 2007; Oct 1, 2014;___________________.
40 Rule 3 is patterned after Fed.R.App.P. 3. Subdivision (a) was amended,
41 effective Oct 1, 2014, to require filing of the notice of appeal with the clerk of the
42 supreme court rather than the clerk of district court. Timely filing of the notice of
43 appeal is required to give the supreme court jurisdiction over the appeal. Any
44 required docket fee must be paid before the appeal will be filed. After a party files
45 a notice of appeal, the clerk of the supreme court sends notice to the district court
46 clerk and to each of the parties. For the service of other documents, these rules
47 place the responsibility of service on counsel rather than the clerk of the supreme
49 It should be noted, Rule 10(b) requires proof of service of the order for
50 transcript and a copy of the stipulation of excluded portions, if any, to be filed with
51 the notice of appeal, Rule 12(a) requires the docket fee to accompany the filing of
52 the notice of appeal, and Rule 7 requires a bond for costs or equivalent security be
53 filed with the notice of appeal in civil cases.
54 Subdivision (a) provides failure to follow any rule may result in dismissal
55 of the appeal, an award of costs, or other appropriate action.
56 Subdivision (b) was amended, effective____________, to require a
57 preliminary statement of issues in all cases.
58 Subdivision (c) was amended, effective Oct 1, 2014, to require the appellant
59 in a civil action or post-conviction proceeding to include a preliminary list of the
60 issues on appeal with the notice of appeal. The purpose of the requirement is to
61 provide the court information to make a preliminary determination whether oral
62 argument is unnecessary. In this list, the appellant is expected to provide the court
63 notice of the issues of which the appellant is aware at the time the notice of appeal
64 is filed.
65 Subdivision (d) was amended, effective March 1, 1999, to allow copies to
66 be sent via a third-party commercial carrier as an alternative to mail.
67 Subdivision (d) was amended, effective Oct 1, 2014, to require the clerk of
68 the supreme court to notify the clerk of district court of the filing of the notice of
69 appeal and to send a copy of the notice of appeal to counsel of record and any
70 self-represented parties.
71 Paragraph (d)(4) requires the title of the action to remain the same on
72 appeal. Consistent with N.D.R.App.P. 1(c), the party who first files the notice of
73 appeal must be designated as the appellant in the title and the responding party
74 must be designated as the appellee.
75 Rule 3 was amended, effective March 1, 2003, in response to the December
76 1, 1998, amendments to Fed.R.App.P. 3. The language and organization of the rule
77 were changed to make the rule more easily understood and to make style and
78 terminology consistent throughout the rules.
79 Rule 3 was amended, effective Oct 1, 2014, to replace "supreme court
80 clerk" with "clerk of the supreme court" and "paper" with "document."
81 SOURCES: Joint Procedure Committee Minutes of
82 ______________________; September 26, 2013, pages 14-15; September 22-23,
83 2005, page 25; September 23-24, 1999, page 10; January 29-30, 1998, page 21;
84 February 19-20, 1987, pages 4-5; September 18-19, 1986, pages 12-13; May
85 25-26, 1978, page 3; March 16-17, 1978, page 1; January 12-13, 1978, pages 2-3;
86 September 15-16, 1977, pages 4-5. Fed.R.App.P. 3; § 3.13(b) ABA Standards
87 Relating to Appellate Courts (Approved Draft, 1977).
88 STATUTES AFFECTED:
89 SUPERSEDED: N.D.C.C. § § 28-18-09, 28-27-05, 28-27-26, 29-28-05,
90 29-28-20 and 29-28-21.
91 CROSS REFERENCE: N.D.R.App.P. 1 (Scope of Rules), N.D.R.App.P. 7
92 (Bond for Costs on Appeal in Civil Cases) , N.D.R.App.P. 10 (The Record on
93 Appeal) , N.D.R.App.P. 11 (Transmission and Filing of the Record) ,
94 N.D.R.App.P. 12 (Docketing the Appeal) , and N.D.R.App.P. 31 (Filing and
95 Service of Briefs) ; N. D. R. Civ. P. Rule 54(b) (Judgment Upon Multiple Claims
96 or Involving Multiple Parties).