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RULE 35. SCOPE OF REVIEW

Effective Date: 5/25/1978

Obsolete Date: 3/1/2003

(a) Civil Appeals; Intermediate Orders. Upon an appeal from a judgment, the supreme court may review any intermediate order or determination of the court below which involves the merits and necessarily affects the judgment appearing upon the record transmitted or returned from the trial court.

(b) Civil Appeals; Power of Court on Review. Upon an appeal from a judgment or order, the supreme court may reverse, affirm, or modify the judgment or order as to any and all of the parties, and if necessary or proper may order a new trial of the entire cause or of some specific issue or issues, and if the appeal is from a part of the judgment or order, may reverse, affirm, or modify it as to the part appealed from. If, in the consideration of any appeal, it becomes apparent to the supreme court that some issue involved in the case has not been tried, or if tried has not been determined by the trial court, and that it is necessary or desirable to proper disposition of the case on appeal that the issue be determined, the supreme court may remand the case to the trial court for the determination of the issue, without relinquishing jurisdiction of the appeal, and the supreme court may hold the determination of the appeal in abeyance until the issue has been determined by the trial court and the determination certified to the supreme court. In that case the proceedings had and the determination made in the trial court, upon remand, are deemed part of the record on appeal in the case. In all cases the supreme court shall remit its final judgment or decision to the court from which the appeal was taken to be enforced accordingly, and if from a judgment, final judgment thereupon shall be entered in the court below in accordance therewith, except when ordered otherwise.

(c) Criminal Appeals; Intermediate Orders. Upon an appeal from a verdict or judgment, the supreme court may review any intermediate order or ruling which involves the merits or which may have affected the verdict or judgment adversely to the appellant.

(d) Criminal Appeals; Power of Court on Review. The supreme court may reverse, affirm, or modify the verdict or judgment or order appealed from, and may set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the verdict, judgment, or order, and, if proper, may order a new trial. In either case, the action must be remanded to the trial court with proper instructions, together with the opinion of the court.

Rule 35 was amended, effective March 1, 2003; March 1, 2021.

Rule 35 incorporates in these rules statutes relating to the scope of review by the Supreme Court in civil and criminal cases, all of which have been superseded.

Rule 35 was amended, effective March 1, 2003. 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.

Paragraph (a)(3) was amended, effective March 1, 2021, to require a party seeking additional briefing or oral argument after a remand to the district court to make a specific request to the court.

SOURCES: Joint Procedure Committee Minutes of April 24, 2020, pages 5-8; April 25-26, 2002, pages 17-18; May 25-26, 1978, page 18; March 16-17, 1978, pages 5-6; January 12-13, 1978, page 24,28-27-28, 28-27-29, 29-28-27, and 29-28-28, N.D.C.C.

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C. §§ 28-27-28, 28-27-29, 29-28-27, 29-28-28, 29-28-29, and 28-27-31.

CROSS REFERENCE: N.D.R.Civ.P. 52(a) (Findings by the Court).

Effective Date Obsolete Date
03/01/2021 View
03/01/2003 03/01/2021 View
05/25/1978 03/01/2003 View