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RULE 10. THE RECORD ON APPEAL

Effective Date: 3/1/1998

Obsolete Date: 3/1/1999

(a) Composition of the Record on Appeal. The original papers and exhibits filed in the trial court, three copies of the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the trial court constitute the record on appeal in all cases.

(b) The Transcript; Duty of Appellant to Order; Time for Ordering. If an appeal is taken in a case in which an evidentiary hearing was held, it is the duty of the appellant to order a transcript of the proceedings. Three copies must be ordered for the supreme court and one copy must be ordered for each party separately represented. The order must be filed with the clerk of the trial court and must be for a complete transcript of the proceedings, unless a stipulation is obtained from all affected parties specifying portions which are not required for the purposes of the appeal. Within three days of filing, the clerk shall transmit the order to the person designated by the trial court to prepare the transcript. If a party affected by the appeal unreasonably refuses to stipulate to exclude from the transcript portions of the record not necessary to the resolution of issues raised by the appellant, the party proposing the stipulation may apply to the trial court for an order requiring the refusing party to pay for the unnecessary portions of the transcript and reasonable attorney's fees for making the application. The order for transcript and a copy of the stipulation of excluded portions, if applicable, must be filed with the clerk of the trial court with the notice of appeal. A party shall include in the order for transcript the following information:

1. Caption of the case;
2. Date or dates of trial;
3. Number of copies required; and
4. Names and addresses of the parties to be served with copies.

(c) Time for Furnishing Transcript; Filing of Transcript; Financial Arrangements. The transcript must be completed within 50 days after the order for the transcript is filed unless the person preparing the transcript or a party applies for and receives an extension of time under subdivision (d). The person preparing the transcript shall file three copies of the transcript and proof of service of other copies of the transcript with the clerk of the supreme court. The other copies must be served on parties designated in the order for transcript. The person preparing the transcript shall also file a computer diskette of the transcript. If demanded by the person preparing the transcript, the appellant or a party obliged by an order of the court under subdivision (b) to pay for the transcript or a portion thereof shall advance the payment of his portion of the estimated cost of any transcript ordered, provided a written estimate of the amount and a demand for payment is served on any obligated party within 10 days after receipt of the order for transcript or an order of the trial court under subdivision (b). Failure to furnish a written estimate and make a timely demand for payment waives the right to demand advance payment. No advance payment is required if the transcript is to be paid for by the state or any agency or subdivision thereof. If an obligated party fails to make the advance payment within 10 days after service of the demand, the person preparing the transcript may suspend preparation of the transcript until payment is made.

(d) Extension of Time. If the person preparing the transcript is unable to complete and file the transcript within 50 days after the order for transcript is filed, the trial court for good cause shown may extend the time for completion of the transcript.

If preparation of the transcript has been suspended for failure of any party to make a timely advance payment upon demand, the party responsible for the delay, for good cause shown, may move the trial court for an extension of time in which to file the transcript, on such terms as the court may order.

A request for extension must be made within the time originally prescribed or within an extension previously granted, but the trial court may not extend the time to more than 90 days from the date of the filing of the first notice of appeal. If the trial court is without authority to grant the relief sought or has denied a request therefor the supreme court may on motion for good cause shown extend the time for completion of the transcript to be filed after the expiration of the time allowed or fixed. If the request for extension of time for completion of the transcript has been previously denied, the motion must set forth the denial and must state the reasons therefor, if any were given.

(e) Form of Transcript. Each transcript must conform to the requirements of Rule 32 except as otherwise provided in this rule. Lines must be numbered on the left margin, and each page may not contain more than 27 lines or less than 25 lines. The left margin may not be more than 1 3/4 inches wide, and the right margin may not be more than 3/8 inches wide. Each question and answer must begin on a new line, and an indentation for a new speaker or paragraph may not be more than 10 spaces from the left margin. Each volume must be indexed as to every witnesses and exhibit, and each page must be numbered consecutively. The accuracy of the transcript must be certified by the person preparing the transcript.

(f) Statement of the Evidence or Proceedings if No Verbatim Record Was Made or Transcript Is Unavailable. If no verbatim record of the evidence or proceedings at a hearing or trial was made or a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement must be served on the appellee, who may serve objections or propose amendments thereto within 10 days after service. Thereupon the statement and any objections or proposed amendments must be submitted to the trial court for settlement and approval and, as settled and approved, must be filed with the clerk of the supreme court by the appellant within 60 days after the notice of appeal is filed.

(g) Agreed Statement as the Record on Appeal. In lieu of the record on appeal as defined in subdivision (a), the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the trial court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with any additions the trial court may consider necessary to present the issues raised on appeal, shall be approved by the trial court and shall then be certified to the supreme court as the record on appeal and transmitted thereto by the clerk of the trial court within the time provided by Rule 11.

(h) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court either before or after the record is transmitted to the supreme court, or the supreme court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and, if necessary, that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the supreme court.

Rule 10 was amended, effective 1978; March 1, 1986; January 1, 1995; March 1, 1998; March 1, 1999; March 1, 2001; technical amendments effective August 1, 2001; March 1, 2003; March 1, 2004; March 1, 2005; March 1, 2008; March 1, 2011; October 1, 2014; March 1, 2020.

Rule 10 was amended, effective January 1, 1995. The amendment allows a transcript to be prepared and certified from an electronic recording by someone other than the operator of recording equipment or a court reporter.

Rule 10 was amended, effective March 1, 2003. The language and organization of the rule were changed to make the rule more easily understandable and to make style and terminology consistent throughout the rules.

Subdivisions (a), (b), and (c) were amended, effective October 1, 2014, to require that an electronic copy of the transcript in portable document format (PDF) be filed in the supreme court. When the mandate of the supreme court is issued, an electronic copy of the transcript will be filed in Odyssey.

Subdivision (b) was amended, effective March 1, 2004, to eliminate any requirement to obtain a transcript of the voir dire record, unless such a transcript is specifically requested by a party.

Subdivision (b) was amended, effective March 1, 2008, to require that a copy of the transcript be ordered for each self-represented party.

Paragraph (b)(2) was amended, effective March 1, 2020, to require a party to designate how many electronic or paper copies of the transcript are to be prepared and identify who is to receive which type of copy.

Paragraph (b)(4) was amended, effective March 1, 2011, to increase the time for a clerk to transmit the order for transcript from three to seven days.

Subdivision (c) was amended, effective March 1, 2008, to eliminate references to computer diskettes.

Paragraph (c)(1) was amended, effective October 1, 2014, to allow 60 days after the order for transcript is transmitted to the preparer for the transcript to be prepared.

Paragraph (c)(3) was amended, effective March 1, 2011, to increase the time periods regarding transcription costs from 10 to 14 days.

Subdivision (d) was amended, effective October 1, 2014, to indicate that the time begins to run on the transcript preparation period when the order for transcript is transmitted to the preparer.

Subdivision (f) was amended, effective March 1, 2011, to increase the time for an appellee to serve objections or propose amendments to a statement of the proceedings from 10 to 14 days.

Rule 10 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 28, 2018, pages 2-5; September 26, 2013, pages 16-20; April 29-30, 2010, page 20; January 25, 2007, page 16; January 30-31, 2003, pages 3-4; September 26-27, 2002, pages 14-15; April 26-27, 2001, pages 8-9; January 27-28, 2000, pages 9-12; September 23-24, 1999, pages 19-21; January 30, 1997, pages 9-10; September 26-27, 1996, page 18; April 28-29, 1994, pages 3-4; January 27-28, 1994, page 18; September 23-24, 1993, pages 20-21; March 28-29, 1985, pages 13-14; November 29, 1984, pages 5-6; May 25-26, 1978, pages 7-8; March 16-17, 1978, pages 1, 2, 9-13; January 12-13, 1978, pages 14-15; October 27-28, 1977, pages 2-3; September 15-16, 1977, pages 5-8, 16-18; June 2-3, 1977, pages 2-4. Fed.R.App.P. 10.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C.  § § 28-18-04, 28-18-05, 28-18-06, 28-18-07, 28-18-08, 28-27-07, 28-27-33, 29-23-01, 29-23-02, 29-23-03, 29-23-04, 29-23-08, 29-23-09.

CROSS REFERENCE: N.D.R.App.P. 3 (Appeal as of Right—How Taken), N.D.R.App.P. 7 (Bond for Costs on Appeal in Civil Cases), N.D.R.App.P. 11 (Transmission and Filing of the Record), and N.D.R.App.P. 12 (Docketing the Appeal).

Effective Date Obsolete Date
03/01/2020 View
10/01/2014 View
03/01/2011 10/01/2014 View
03/01/2011 10/01/2014 View
03/01/2008 03/01/2011 View
03/01/2005 03/01/2008 View
03/01/2004 03/01/2005 View
03/01/2003 03/01/2004 View
08/01/2001 03/01/2003 View
03/01/2001 08/01/2001 View
03/01/1999 03/01/2001 View
03/01/1998 03/01/1999 View
03/01/1986 03/01/1998 View