RULE 77. DISTRICT COURTS AND CLERKS
(a) District Courts Always Open. The district court is deemed to always be open for the purpose of filing any pleading or other proper paper, of issuing and returning mesne and final process, and of making and directing all interlocutory motions, orders, and rules.
(b) Trials and Hearings Orders in Chambers. All trials upon the merits must be conducted in open court and so far as convenient in a regular court room. All other acts or proceedings may be done or conducted by a judge in chambers, without the attendance of the clerk or other court officials and at any place either within or without the district; but no hearing, other than one ex parte, may be conducted outside the district without the consent of all parties affected thereby.
(c) Clerk's Office and Orders by Clerk. All motions and applications in the clerk's office for issuing mesne process, for issuing final process to enforce and execute judgments, and for other proceedings not requiring allowance by or an order of the court are grantable of course by the clerk; but the court upon cause shown may suspend, alter, or rescind the clerk's action.
Notice of Entry of Judgment Served. Within 10 days after entry of judgment in an action in which an appearance has been made, notice of entry of judgment, together with a copy of the judgment or a general description of the nature and amount of relief and damages granted, must be served by the prevailing party upon the adverse party and filed. Service of notice of entry of judgment is not necessary to begin the time for filing a post=judgment motion or an appeal if the record clearly evidences actual knowledge of entry of judgment through the affirmative action of the moving or appealing party.-[Transferred to Rule 58(b)].
Rule 77 was amended, effective March 1, 1990; March 1, 1999; March 1, 2000.
Subdivision (c) was amended, effective March 1, 1990. The amendment is technical in nature and no substantive change is intended.
Although subdivision (d) only refers to a judgment, Rule 54(a) defines a judgment as including "any order from which an appeal lies."
Subdivision (d) varies considerably from the federal rule. In an action where an appearance has been made by an adverse party, the prevailing party has 10 days after entry of judgment in which to serve the adverse party with notice of entry of judgment. The 60-day time period for appeal by the adverse party does not start until notice of entry of judgment is served [see Rule 4(a), N.D.R.App.P.].
Subdivision (d) was amended, effective March 1, 1999, to incorporate the case law exception holding service of notice of entry of judgment is not necessary to start the time running for filing a post-judgment motion or an appeal if the record clearly evidences actual knowledge of entry of judgment by the affirmative action of the moving or appealing party. See Gierke v. Gierke, 1998 ND 100, ¶¶ 6-12, 578 N.W.2d 522, 525-26, Thorson v. Thorson, 541 N.W.2d 692, 694-95 (N.D. 1996).
Subdivision (d) was transferred to Rule 58(b), effective March 1, 2000.
SOURCES: Joint Procedure Committee Minutes of September 24-25, 1998, page 16; April 30-May 1, 1998, pages 12-13; April 20, 1989, page 2; December 3, 1987, page 11; January 17-18, 1980, pages 9-10; Rule 77, FRCivP.
STATUTES AFFECTED: Sections 28-2002, NDRC 1943, and 27-05-07, N.D.C.C.
CROSS REFERENCE: Rule 4 (Appeal When Taken), N.D.R.App.P.