RULE 39. COSTS
Effective Date: 3/16/1978
Obsolete Date: 3/1/2003
(a) To Whom Allowed. In all civil cases, except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; and if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the court.
(b) [Reserved for Future Use].
(c) [Reserved for Future Use].
(d) [Reserved for Future Use].
(e) Costs on Appeal in Civil Cases Taxable in the Trial Court. Costs incurred in the preparation and transmission of the record, the costs of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for costs of supersedeas bonds or other bonds to preserve rights pending appeal, the reasonable and necessary costs of preparing briefs under the rules (presumed to be $100.00 for appellant's brief and $75.00 for appellee's brief), and the fee for filing the notice of appeal shall be taxed in the trial court as costs of the appeal in favor of the party entitled to costs under this rule.
(f) Costs Taxable in the Supreme Court. In original proceedings before the court, costs as applicable in (e) above may be taxed by the clerk in favor of the party entitled to costs.
(g) Execution for Costs Taxable in the Supreme Court. An execution signed by the clerk of the supreme court may issue upon direction of the supreme court to enforce any judgment for costs made and entered in a case which originated in that court. The execution may issue and be directed to the marshal, or to the sheriff of any county, and may be enforced in any county in the state in which a transcript of the judgment for costs is filed and docketed.
(h) Costs on Appeal of Criminal Actions. Costs incurred in the appeal of a criminal action shall be taxed in the trial court only upon motion of a party to the appeal and order of the supreme court.
Rule 39 was amended, effective March 1, 2003; October 1, 2014.
Although derived from Fed.R.App.P. 39, this rule is revised to simplify taxation of costs in the appellate court and the district court. It provides for taxation of all costs by the clerk of district court, except in proceedings initiated in the supreme court.
Subdivision (f) generally restates N.D.C.C. § 28-31-11, which has been superseded and deleted from the century code. It provides a method for execution on a judgment for costs incurred in an action originating in the supreme court.
Subdivision (e) was amended, effective March 1, 2003, to delete a provision allowing for the recovery of appellate brief preparation costs.
If costs are not to be assessed as specified in subdivision (a) , the supreme court must enter an appropriate order, either in the decision or in the judgment.
The judgment used by the supreme court is signed by the chief justice and contains a provision for awarding costs. If costs are awarded, the party receiving costs is designated by the supreme court clerk. The action by the clerk and the signature by the chief justice are under the direction of the entire court.
Rule 39 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 39. 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 39 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court."
SOURCES: Joint Procedure Committee Minutes of April 25-26, 2002, pages 22-24; June 21, 1984, page 8; May 25-26, 1978, page 19; March 16-17, 1978, pages 7-8. Fed.R.App.P. 39.
SUPERSEDED: N.D.C.C. §§ 28-31-10 and 28-31-11.