RULE 8. STAY OR INJUNCTION PENDING APPEAL
(a) Stay Must Ordinarily Be Sought in the First Instance in Trial Court; Motion for Stay in Supreme Court. Application for a stay of the judgment or order of a trial court pending appeal, or for approval of a supersedeas bond, or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the trial court. A motion for such relief may be made to the supreme court or to a justice thereof, but the motion shall show that application to the trial court for the relief sought is not practicable, or that the trial court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the trial court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other sworn statements or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk and normally will be considered by the court, but in exceptional cases where such procedure would be impracticable due to the requirements of time, the application may be made to and considered by a single justice of the court. (b) Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. Relief available in the supreme court under this rule may be conditioned upon the filing of a bond or other appropriate security in the trial court. If security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the trial court and irrevocably appoints the clerk of the trial court as the surety's agent upon whom any papers affecting the surety's liability on the bond or undertaking may be served. A surety's liability may be enforced on motion in the trial court without the necessity of an independent action. The motion and the notice of the motion the trial court prescribes may be filed with the clerk of the trial court, who shall forthwith mail or send by third-party commercial carrier copies to the sureties if their addresses are known. (c) Stays in Criminal Cases. Stays of execution in criminal cases shall be had in accordance with the provisions of Rule 38(a), North Dakota Rules of Criminal Procedure.
(a) Motion for Stay.
(1) Initial Motion in the District Court. A party must ordinarily move first in the district court for the following relief:
(A) a stay of the judgment or order of a district court pending appeal.
(B) approval of a supersedeas bond.
(C) an order suspending, modifying, restoring, or granting an injunction while an appeal is pending.
(2) Motion in the Supreme Court; Conditions on Relief. A motion for the relief mentioned in paragraph (a)(1) may be made to the supreme court or to one of its justices.
(A) The motion must:
(i) show that moving first in the district court would be impracticable; or
(ii) state that, a motion having been made, the district court denied the motion or failed to afford the relief requested and state any reasons given by the district court for its action.
(B) The motion must also include:
(i) the reasons for granting the relief requested and the facts relied on.
(ii) originals or copies of affidavits or other sworn statements supporting facts subject to dispute.
(iii) relevant parts of the record.
(C) The moving party must give reasonable notice of the motion to all parties.
(D) A motion under paragraph (a)(2) must be filed with the supreme court clerk and normally will be considered by the court. But in an exceptional case in which time requirements make that procedure impracticable, the motion may be made to and considered by a single justice.
(E) The court may condition relief on a party's filing a bond or other appropriate security in the district court.
(b) Proceeding Against a Surety. If a party gives security in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the district court and irrevocably appoints the clerk of district court as the surety's agent on whom any papers affecting the surety's liability on the bond or undertaking may be served. On motion, a surety's liability may be enforced in the district court without the necessity of an independent action. The motion and any notice the district court prescribes may be filed with the clerk of district court, who must promptly mail or send by third-party commercial carrier a copy to each surety whose address is known.
(c) Stay in a Criminal Case. Rule 38(a) of the North Dakota Rules of Criminal Procedure governs a stay in a criminal case.
Rule 8 was amended, effective January 1, 1988; March 1, 1999; March 1, 2003.
Derived from Fed.R.App.P. 8, this rule Rule 8 provides the procedure for obtaining a stay or similar relief with respect to the action of the court, pending appeal.
Subdivision (b) was amended, effective March 1, 1999, to allow copies of the motion to be sent via a commercial carrier as an alternative to mail.
Subdivision (c) assures the procedure for a stay in a criminal matter is consistent with N.D.R.Crim.P.
Rule 38 , North Dakota Rules of Criminal Procedure. In this rule the The authority of a single justice to act on procedural matters is first mentioned in this rule. These rules contemplate This rule contemplates that many applications for procedural relief may be handled by a single justice, with substantial savings in time and reduction of the actions requiring a quorum of the Court court.
Rule 8 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 8. 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 September 23-24, 1999, page 18; January 29-30, 1998, page 21; February 19-20, 1987, pages 5-6; September 18-19, 1986, pages 13-14; May 25-26, 1978, page 5; March 16-17, 1978, page 16. Fed.R.App.P. 8.
SUPERSEDED: N.D.C.C. § 28-27-22.
N.D.R.App.P. 7 (Bond for Costs on Appeal in Civil Cases), and N.D.R.App.P. 9 (Release in Criminal Cases), N.D.R.Crim.P. 38 (Stay of Execution and Relief Pending Appeal).