RULE 4. APPEAL--WHEN TAKEN

Obsolete Date: 3/1/2011

(a) Appeal in Civil Case.

(1) Time For Filing Notice of Appeal. In a civil case, except as provided in paragraph (a) (4) , the notice of appeal required by Rule 3 must be filed with the clerk of district court within 60 days from service of notice of entry of the judgment or order being appealed.

(2) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this subdivision, whichever period ends later.

(3) Effect of Motion on Notice of Appeal.

(A) If a party timely files with the clerk of district court any of the following motions under the North Dakota Rules of Civil Procedure, the full time to file an appeal runs for all parties from service of notice of the entry of the order disposing of the last such remaining motion:

(i) for judgment under Rule 50(b) ;

(ii) to amend or make additional factual findings under Rule 52(b) , whether or not granting the motion would alter the judgment;

(iii) for attorney's fees under Rule 54;

(iv) to alter or amend the judgment under Rule 59;

(v) for a new trial under Rule 59; or

(vi) for relief under Rule 60 if the motion is served and filed no later than 15 days after notice of entry of judgment;

(B)

(i) If a party files with the clerk of district court any motion listed in subparagraph (a) (3) (A) after a notice of appeal is filed, the party filing the motion must notify the supreme court clerk in writing, and the court may remand the case to the district court for disposition of the motion.

(ii) A party intending to challenge an order disposing of any motion listed in subparagraph (a) (3) (A) , or a judgment altered or amended upon such a motion, must file a notice of appeal, or an amended notice of appeal, in compliance with Rule 3(c) , within the time prescribed by this rule measured from the service of notice of the entry of the order disposing of the last such remaining motion.

(iii) No additional fee is required to file an amended notice.

(4) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(i) a party so moves no later than 30 days after the time prescribed by subdivision (a) expires; and

(ii) that party shows excusable neglect or good cause.

(B) If a motion for extension of time is filed, notice must be given to the other parties.

(C) No extension under paragraph (a) (4) may exceed 30 days after the prescribed time. 

(b) Appeal in Criminal Case.

(1) Time for Filing Notice of Appeal.

(A) In a criminal case, a defendant's notice of appeal must be filed with the clerk of district court within 30 days after the entry of the judgment or order being appealed.

(B) If an appeal by the state is authorized by statute, the notice of appeal must be filed with the clerk of district court within 30 days after the entry of the judgment or order being appealed.

(2) Filing Before Entry of Judgment. A notice of appeal filed after the district court announces a decision, sentence, or order, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.

(3) Effect of Motion on Notice of Appeal.

(A) If a defendant timely makes any of the following motions under the North Dakota Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 30 days after the entry of the order disposing of the last such remaining motion, or within 30 days after the entry of the judgment of conviction, whichever period ends later:

(i) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 30 days after the entry of the judgment;

(ii) for arrest of judgment under Rule 34.

(B) If the defendant files with the clerk of district court any motion listed in subparagraph (b) (3) (A) after a notice of appeal is filed, the defendant must notify the supreme court clerk in writing, and the court may remand the case to the district court for disposition of the motion.

(C) A notice of appeal filed after the district court announces a decision, sentence, or order, but before it disposes of any of the motions referred to in subparagraph (b) (3) (A) , becomes effective upon the later of the following:

(i) the entry of the order disposing of the last such remaining motion;

(ii) the entry of the judgment of conviction.

(D) A valid notice of appeal is effective, without amendment, to appeal from an order disposing of any of the motions referred to in subparagraph (b) (3) (A).

(4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may -- before or after the time has expired, with or without motion and notice -- extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.

(5) Jurisdiction. The filing of a notice of appeal under this subdivision does not divest a district court of jurisdiction to correct a sentence under N. D. R. Crim. P. 35(a) , nor does the filing of a motion under Rule 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under N.D.R.Crim.P. 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.

(6) Entry Defined. A judgment or order is entered for purposes of this subdivision when it is entered on the criminal docket.

(c) Appeal in Contempt Case. A notice of appeal must be filed with the clerk of district court within 60 days after entry of the judgment or order being appealed. Upon a finding of excusable neglect or for good cause, the district 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.

(d) Appeal in Post-Conviction Proceeding. A notice of appeal must be filed with the clerk of district court within 60 days of service of notice of entry of the judgment or order being appealed. Upon a finding of excusable neglect or good cause, the district 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.

(e) Appeal in Proceeding Under Uniform Juvenile Court Act. A notice of appeal must be filed with the clerk of district court within 30 days of service of notice of entry of the judgment, order or decree being appealed. Upon a finding of excusable neglect or good cause, the supreme 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.

(f) Mistaken Filing in Supreme Court. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the supreme court, the supreme court clerk must note on the notice the date when it was received and send it to the clerk of district court. The notice is then considered filed in the district court on the date so noted.