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RULE 4. APPEAL--WHEN TAKEN

Effective Date: 3/1/1999

Obsolete Date: 3/1/2000

(a) Appeals in Civil Cases. In a civil case the notice of appeal required by Rule 3 must be filed with the clerk of the trial court within 60 days of service of notice of entry of the judgment or order appealed from. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party under the North Dakota Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from service of notice of the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under Rule 50(b), N.D.R.Civ.P.; (2) granting or denying a motion under Rule 52(b), N.D.R.Civ.P., to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under Rule 54, N.D.R.Civ.P., for attorneys' fees; (4) granting or denying a motion under Rule 59, N.D.R.Civ.P., to alter or amend the judgment; (5) denying a motion for a new trial under Rule 59, N.D.R.Civ.P.; or (6) granting or denying a motion for relief under Rule 60, N.D.R.Civ.P., if the motion is served and filed no later than 15 days after notice of entry of judgment.

Upon a showing of excusable neglect, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed for appeal by this subdivision, other rule, or statute. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it must be made by motion with such notice as the trial court deems appropriate.

(b) Appeals in Criminal Cases.

(1) In a criminal case the notice of appeal by a defendant must be filed with the clerk of the trial court within 10 days after the entry of the judgment or order appealed from. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment.
(2) If an appeal by the state is authorized by statute, the notice of appeal must be filed with the clerk of the trial court within 30 days after the entry of the judgment or order appealed from.
(3) A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. A notice of appeal filed after the announcement of a decision, sentence, or order but before entry of the judgment or order must be treated as filed after the entry and on the day thereof. Upon a showing of excusable neglect the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
(c) Appeals in Contempt Cases. A notice of appeal shall be filed with the clerk of the trial court within 60 days after entry of judgment or order appealed from. Upon a showing of excusable neglect the trial court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

Rule 4 was amended, effective March 1, 1986; March 1, 1994; March 1, 1997; March 1, 1998; March 1, 1999; August 1, 2001; March 1, 2003; March 1, 2007; March 1, 2008; March 1, 2011; May 4, 2011; March 1, 2012; Oct 1, 2014; March 1, 2018; November 1, 2020. The explanatory note was amended effective March 1, 2020.

The time for civil appeals runs from "service of notice of entry" of the order or judgment. However, service of notice of entry of judgment is not necessary to start the time running for filing a post-judgment motion or appeal if the record clearly evidences actual knowledge of entry of judgment by the affirmative action of the moving or appealing party. See N.D.R.Civ.P. 58(b).

The responsibility under subdivision (a) is shifted to counsel to serve the notice and commence the period for appeal. This differs from the federal rule, which provides the time for appeal is to run from "the date of entry."

The time limit for taking an appeal does not prevent the taking of an appeal at any time after the entry of the judgment or order and before service of notice of entry.

Rule 4 was amended, effective Oct 1, 2014, to conform the rule for filing of the notice of appeal in the supreme court.

Subdivision (a) was amended, effective March 1, 1999, to provide the 30 day extension for excusable neglect is to be added to the time for appeal provided by the statute or rule setting the time for appeal. A party seeking an extension of time to appeal should file a notice of appeal with the motion for extension.

Subparagraph (a)(3)(A) was amended, effective Oct 1, 2014, to add the words "however titled" to the language authorizing extension of the appeal period for the filing of certain motions. This amendment is intended to make clear that the substance and not the title of the motion should control. Therefore, a post-judgment motion under any of the listed rules, whether titled as a motion to alter, amend, or vacate, for relief from judgment, or for reconsideration, will toll the time period to file a notice of appeal.

Subparagraph (a)(3)(A) was amended, effective March 1, 2018, to clarify that only a motion filed within the time allowed by the North Dakota Rules of Civil Procedure will toll the appeal time.

Subparagraph (a)(3)(A)(vi) was amended, effective March 1, 2011, to increase the time to file a Rule 60 motion from 15 to 28 days after notice of entry of judgment.

Subparagraph (a)(3)(B) was amended, effective March 1, 2012, to provide that the supreme court retains jurisdiction when remanding a case to the district court to decide a motion unless the supreme court expressly dismisses the appeal.

Subparagraph (a)(3)(B)(ii) was amended, effective March 1, 2011, to track the 2009 amendments to Fed.R.App.P. 4. The amendment changed the phrase "judgment altered or amended" to "judgment's alteration or amendment."

Subdivision (b) was amended, effective March 1, 2003, to increase the time for a criminal defendant to appeal from 10 days to 30 days.

Subdivision (b) was amended, effective March 1, 2008, to clarify that the time for appeal continues to run even if a motion to correct a sentence under N.D.R.Crim.P. 35 is filed.

Subdivision (d) was adopted, effective August 1, 2001, to provide a time for appeal in a post-conviction proceeding.

Subdivision (e) was adopted, effective March 1, 2007, to clarify the time for appeal in a proceeding under the Uniform Juvenile Court Act. Requests for extension of time in juvenile cases must be directed to the supreme court.

Subdivision (e) was amended, effective May 4, 2011, to specify that appeals in termination of parental rights matters and appeals under N.D.C.C. ch. 14-15.1 on child relinquishment proceedings are not governed by the appeal deadlines in this rule. Appeals in termination of parental rights proceedings are expedited under Rule 2.2.

Subdivision (e) was amended, effective November 1, 2020, to add language clarifying the time for appeal in a proceeding under N.D.C.C. Chapter 27-20.1 on the guardianship of a child.

Subdivision (f) was amended, effective Oct 1, 2014, to provide a procedure to be used when a notice of appeal is mistakenly filed in district court.

Rule 4 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 4. 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 4 was amended, effective Oct 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court."

SOURCES: Joint Procedure Committee Minutes of September 24, 2020, page 2; April 26, 2019, page 19; April 27, 2017, page 22; September 26, 2013, pages 14-15, pages 29-30; April 28-29, 2011, page 18; April 29-30, 2010, page 23; January 25, 2007, page 16; September 22-23, 2005, pages 25-26; April 26-27, 2001, pages 4-5; September 28-29, 2000, pages 10-13; January 27-28, 2000, pages 4-9; September 23-24, 1999, pages 11-12; April 30-May 1, 1998, page 13; January 30, 1997, page 8; January 25-26, 1996, pages 7-10; April 29-30, 1993, pages 2-3, 16-18; November 29, 1984, pages 19-20; April 26, 1984, pages 23-24; January 20, 1984, pages 10-15; September 18-19, 1980, page 20; January 12-13, 1978, page 25; Fed.R.App.P. 4

STATUTES AFFECTED:

SUPERSEDED: N.D.C.C.  § 28-27-04.

CONSIDERED: N.D.C.C. chs. 14-15.1, 27-20.1; § 27-20-56.

CROSS REFERENCE: N.D.R.App.P. 2.2 (Termination of Parental Rights - Expedited Appeals)

Effective Date Obsolete Date
11/01/2020 View
03/01/2020 11/01/2020 View
03/01/2018 03/01/2020 View
10/01/2014 03/01/2018 View
03/01/2012 10/01/2014 View
03/04/2011 03/01/2012 View
03/01/2011 03/04/2011 View
03/01/2008 03/01/2011 View
03/01/2007 03/01/2008 View
03/01/2003 03/01/2007 View
08/01/2001 03/01/2003 View
03/01/2000 08/01/2001 View
03/01/1999 03/01/2000 View
03/01/1998 03/01/1999 View
03/01/1997 03/01/1998 View
03/01/1994 03/01/1997 View