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RULE 3. APPEAL AS OF RIGHT--HOW TAKEN

Effective Date: 1/1/1988

Obsolete Date: 3/1/1999

(a) Filing the Notice of Appeal. An appeal permitted by law as of right from a trial court to the supreme court shall be taken by filing a notice of appeal with the clerk of the trial court within the time allowed by Rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court deems appropriate, which may include dismissal of the appeal.

(b) Joint or Consolidated Appeals. If two or more persons are entitled to appeal from a judgment or order of a trial court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter 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 shall specify the party or parties taking the appeal; shall designate the judgment, order, or part thereof appealed from; and shall name the court to which the appeal is taken.

(d) Service of the Notice of Appeal. The clerk of the trial court shall cause a copy of the notice of appeal to be mailed to the clerk of the supreme court and to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party's last known address.

In criminal cases, habeas corpus proceedings, or post-conviction proceedings, the clerk shall also mail a copy of the docket entries to the clerk of the supreme court. The clerk shall note on each copy mailed the date on which the notice of appeal was filed. Failure of the clerk to cause the notice to be mailed does not affect the validity of the appeal. Service is sufficient notwithstanding the death of a party or the party's counsel. The clerk shall note in the docket the names of the parties to whom copies are mailed, with the date of mailing.

The title of the action is not to be changed in consequence of the appeal.

[Amended effective January 1, 1988.]

Rule 3 was amended, effective January 1, 1988; March 1, 1999; March 1, 2003; March 1, 2007; Oct 1, 2014; March 1, 2019.

Rule 3 is patterned after Fed.R.App.P. 3. Subdivision (a) was amended, effective Oct 1, 2014, to require filing of the notice of appeal with the clerk of the supreme court 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 the supreme court sends notice to the district court clerk and to each of the parties. For the service of other documents, these rules place the responsibility of service on counsel rather than the clerk of 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 March 1, 2019, to require the appellant in all appeals include a concise preliminary list of the issues on appeal in the notice of appeal.

Subdivision (c) was amended, effective Oct 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 Oct 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 Oct 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, page 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).

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C.  § § 28-18-09, 28-27-05, 28-27-26, 29-28-05, 29-28-20 and 29-28-21.

CROSS REFERENCE: N.D.R.App.P. 1 (Scope of Rules), N.D.R.App.P. 7 (Bond for Costs 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).

Effective Date Obsolete Date
03/01/2019 View
10/01/2014 03/01/2019 View
03/01/2007 03/01/2014 View
03/01/2003 03/01/2007 View
03/01/1999 03/01/2003 View
01/01/1988 03/01/1999 View