RULE 41. ISSUANCE OF MANDATE; STAY OF MANDATE
Effective Date: 5/25/1978
Obsolete Date: 3/1/2003
(a) Date of Issuance. The mandate of the supreme court shall issue 21 days after the entry of judgment unless the time is shortened or enlarged by order. A certified copy of the judgment and a copy of the opinion of the court, if any, and any direction as to costs shall constitute the mandate, unless the court directs that a formal mandate issue. The timely filing of a petition for rehearing will stay the mandate until disposition of the petition unless otherwise ordered by the court. If the petition is denied, the mandate shall issue 7 days after entry of the order denying the petition unless the time is shortened or enlarged by order.
(b) Stay of Mandate Pending Appeal or Petition for Certiorari. A stay of the mandate pending an appeal or a petition to the Supreme Court of the United States for a writ of certiorari may be granted upon motion. The stay may not exceed 30 days unless the period is extended for cause shown. If while the stay is in effect, the party who has been granted a stay files a copy of the petition for the writ with the clerk of the supreme court the stay shall continue until final disposition by the Supreme Court of the United States. Upon the filing of a copy of an order of the Supreme Court of the United States affirming the judgment or denying the petition for writ of certiorari the mandate shall issue immediately. A bond or other security may be required as a condition to the grant or continuance of a stay of the mandate.
Rule 41 was amended, effective March 1, 2003; October 1, 2014.
This rule is derived from Fed.R.App.P. 41. A motion to the supreme court for a stay pending appeal or petition to the United States Supreme Court for writ of certiorari should be made pursuant to Rule 27.
The party obtaining the stay must file a copy of the notice of appeal or the petition for writ of certiorari with the supreme court in order to continue the stay until the case is disposed of by the United States Supreme Court.
Subdivision (c) was added, effective March 1, 2003. This amendment is intended to clarify that a mandate is effective when issued, not when received by the district court.
Rule 41 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.
Rule 41 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 25-26; May 25-26, 1978, pages 20-21. Fed.R.App.P. 41.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. § 28-27-30.
CROSS REFERENCE: N.D.R.App.P. 27 (Motions) ; 28 U. S. C. § 1257 (State Courts) ; (Appeal; Certiorari).