RULE 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT

Effective Date: 3/1/2011

(a) Automatic Stay; Exceptions for Injunctions, Receiverships, and Accountings. Except as stated in this rule, no execution may be issued on a judgment, nor may proceedings be taken to enforce it, until 14 days have passed after notice of its entry if the opposing party appeared, and 14 days have passed after entry of a default judgment. But unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken:

(1) an interlocutory or final judgment in an action for an injunction or a receivership; or
(2) a judgment or order that directs an accounting.

(b) Stay Pending the Disposition of a Motion. On appropriate terms for the opposing party's security, the court may stay the execution of a judgment, or any proceedings to enforce it, pending disposition of any of the following motions: (1) under Rule 50, for judgment as a matter of law; (2) under Rule 52(b), to amend the findings or for additional findings; (3) under Rule 59, for a new trial or to alter or amend a judgment; or (4) under Rule 60, for relief from a judgment or order.

(c) Injunction Pending an Appeal. While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party's rights.

(d) Stay with Bond on Appeal. If an appeal is taken, the appellant may obtain a stay by supersedeas bond, except in an action described in Rule 62(a)(1) or (2). The bond may be given on or after filing the notice of appeal. The stay takes effect when the court approves the bond.

(e) Stay Without Bond on an Appeal by the State, Its Officers, or Its Agencies. The court must not require a bond, obligation, or other security from the appellant when granting a stay on an appeal by the State, its officers, or its agencies or on an appeal directed by an agency or subdivision of the state government.

(f) Undertaking to Stay Execution for Delivery of Personal Property on Appeal. If the judgment directs the assignment or delivery of documents or personal property, its execution is not stayed on appeal unless:

(1) the matters required to be assigned or delivered are brought into court or are placed in the custody of a court-appointed officer or receiver; or
(2) an undertaking is entered into on behalf of the appellant by at least two sureties, for a sum as directed by the court, providing that the appellant will obey the order of the appellate court on appeal.

(g) To Stay Execution of Conveyance or Instrument on Appeal. If the judgment directs the execution of a conveyance or other instrument, its execution is not stayed on appeal, unless the instrument has been executed and deposited with the clerk with whom the judgment was entered to abide the appellate court's judgment.

(h) Undertaking to Stay Execution for the Sale or Delivery of Real Property on Appeal. If the judgment directs the sale or delivery of possession of real property, its execution is not stayed on appeal unless an undertaking is executed on behalf of the appellant by at least two sureties, for a sum as directed by the court. The undertaking must provide that during the possession of the property, the appellant:

(1) will not commit or allow to be committed any waste on the property; and
(2) if the judgment is affirmed, will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession under the judgment.

(i) Undertaking to Stay Abatement of Nuisance on Appeal. If the judgment directs the abatement or restraint of the continuance of a public or private nuisance, its execution of is not stayed on appeal unless an undertaking is entered into on behalf of the appellant by at least two sureties, for a sum directed by the court providing that the appellant will pay all damages that the opposing party may sustain by the continuance of the nuisance.

(j) Undertaking to Stay Other Executions on Appeal. If the judgment directs the performing of a particular act and there is no statutory provision regarding the undertaking to be given on appeal, its execution is not stayed on appeal unless an undertaking is executed on behalf of the appellant by at least two sureties, for a sum as directed by the court. The undertaking must provide that the appellant will pay all damages sustained by the opposing party by not performing the particular act directed to be done by the judgment and as further provided by the court.

(k) To Stay Intermediate Orders on Appeal. Unless otherwise directed by the court, the execution or performance of an order must not be delayed on appeal. If required, an undertaking must be executed on behalf of the appellant by at least two sureties in an amount and under terms as directed by the court. The terms of the undertaking must be in accordance with the order, and when applicable, must correspond to the provisions of these rules regarding appeals from judgments and no appeal from judgments. The provisions must be made in all cases that will properly protect the respondent. An appeal from an intermediate order before judgment does not stay proceedings unless the court orders otherwise.

(l) Appellate Court's Power Not Limited. While an appeal is pending, this rule does not limit the power of the appellate court or one of its judges or justices to:

(1) stay proceedings; or
(2) suspend, modify, restore, or grant an injunction; or
(3) issue an order to preserve the status quo or the effectiveness of the judgment to be entered.

(m) Stay with Multiple Claims or Parties. A court may stay the enforcement of a final judgment entered under Rule 54 until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of the stayed judgment for the party in whose favor it was entered.

(n) Order Staying Proceedings. The court may not order a stay of proceedings more than 21 days except to stay proceedings under an order or judgment appealed from or on previous notice to the opposing party.

Rule 62 was amended, effective September 1, 1983; March 1, 2011.

Rule 62 is derived from Fed.R.Civ.P. 62, with several added provisions, and changes to subdivisions (a), (b), (c), (d) and (e) to conform to the court system of North Dakota. Subsection (a) was amended in 1983, effective September 1, 1983, to provide that no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 10 days after "notice of" its entry, rather than its entry except in a default judgment the time begins to run from the date of entry. Federal subdivision (f), concerning a stay according to state law, was deleted. In its place, subdivisions (f), (g), (h), (i), (j), and (k), derived from Sections 28-2712 through 28-2717, NDRC 1943, were inserted. These contain mostly provisions requiring an undertaking to stay certain proceedings. Subdivisions (l) and (m) are identical to subdivisions (g) and (h) in the federal rule. Subdivision (n), taken from Section 28-2807, NDRC 1943, was added setting a time limit on how long an order may be made effective.

Subdivision (a) was amended, effective March 1, 2011, to increase the time of the automatic stay from 10 to 14 days.

Subdivision (n) was amended, effective March 1, 2011, to increase the time for an order staying proceedings from 20 to 21 days.

Rule 62 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. 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.

SOURCES: Joint Procedure Committee Minutes of April 29-30, 2010, page 16; January 28-29, 2010, page 12; September 30-October 1, 1982, pages 6 and 12-15; November 29-30, 1979, page 19; Fed.R.Civ.P. 62.

CROSS REFERENCE: N.D.R.Civ.P. 50 (Motion for a Directed Verdict), N.D.R.Civ.P. 52 (Findings by the Court), N.D.R.Civ.P. 54 (Judgment Costs), N.D.R.Civ.P. 59 (New Trials Amendment of Judgments), and N.D.R.Civ.P. 60 (Relief from Judgment or Order); N.D.R.App.P. 8 (Stay or Injunction Pending Appeal).

Effective Date Obsolete Date
03/01/2011 View
09/30/1982 03/01/2011 View