Obsolete Date: 3/1/2002
(a) Voluntary Dismissal. If the parties to an appeal or other proceeding sign and file with the clerk of the supreme court an agreement that the proceeding be dismissed, which specifies the terms as to payment of costs, and the parties pay whatever fees are due, the clerk shall enter the case dismissed, but no mandate or other process may issue without an order of the court. An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the court.
(b) Involuntary Dismissal. When an appellant is in violation of any appellate rule and no motion to dismiss has been filed by the appellee, the clerk of the supreme court shall notify the appellant that unless the appellant gives reason within ten days why the case should not be dismissed, the case will be dismissed.
(c) Mootness. When a party believes an appealed issue has become moot due to a change in circumstance, the party shall advise the court in writing about the change in circumstance and explain why appeal of the issue should or should not be dismissed.
[Amended effective March 1, 1990; March 1, 1999.]
This rule is derived from Fed.R.App.P. 42, although subdivision (a) of the federal rule, relating to dismissal in the trial court before the appeal is docketed, has been deleted. All stipulations and motions for dismissal must be filed in the supreme court.
Subdivision (b) was amended, effective March 1, 2021, to require counsel for a criminal defendant to serve a request for voluntary dismissal on the defendant.
Subdivision (b) was added, effective March 1, 1990, to allow involuntary dismissal when an appellant fails to comply with the appellate rules.
Subdivision (c) was added, effective March 1, 1999, because generally the supreme court will not consider a moot issue. See Ashley Education Association v. Ashley Public School, 556 N. W. 2d 666 (N. D. 1996).
Rule 42 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 42 was amended, effective October 1, 2014, to replace "supreme court clerk" with "clerk of the supreme court."
SOURCES: Supreme Court Conference Minutes of October 23, 1989. Joint Procedure Committee Minutes of April 25-26, 2002, page 26; September 28-29, 2000, page 9; September 25-26, 1997, pages 6-7; January 30, 1997, pages 13-14; April 20, 1989, pages 17-18; May 25-26, 1978, page 21; March 16-17, 1978, page 14. Fed.R.App.P. 42.