RULE 62. STAY OF PROCEEDINGS TO ENFORCE A JUDGMENT

Effective Date: 9/30/1982

Obsolete Date: 3/1/2011

(a) Automatic Stay-Exceptions-Injunctions, Receiverships, and Accountings.Except as stated herein, no execution may issue upon a judgment nor may proceedings be taken for its enforcement until the expiration of 10 days after notice of its entry if the opposing party appeared, and 10 days after entry of a judgment by default. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction or in a receivership action, or a judgment or order directing an accounting, may not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. The provisions of subdivision (c) govern the suspending, modifying, restoring, or granting of an injunction during the pendency of an appeal.

(b) Stay on Motion for New Trial or for Judgment. In its discretion and on such conditions for the security of the adverse party as are proper, the court may stay the execution of or any proceedings to enforce a judgment pending the disposition of a motion for a new trial or to alter or amend a judgment made pursuant to Rule 59, or of a motion for relief from a judgment or order made pursuant to Rule 60, or of a motion for judgment in accordance with a motion for a directed verdict made pursuant to Rule 50, or of a motion for amendment to the findings or for additional findings made pursuant to Rule 52(b).

(c) Injunction Pending Appeal. If an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

(d) Stay Upon Appeal. If an appeal is taken, the appellant by giving a supersedeas bond may obtain a stay subject to the exceptions contained in subdivision (a). The bond may be given at or after the time of filing the notice of appeal. The stay is effective when the supersedeas bond is approved by the court.

(e) Stay in Favor of the State or Agency Thereof. If an appeal is taken by the state or governmental subdivision thereof or an officer or agency thereof or by direction of any department thereof and the operation or enforcement of the judgment is stayed, no bond, obligation, or other security may be required from the appellant.

(f) Undertaking to Stay Execution for Delivery of Personalty. If the judgment appealed from directs the assignment or delivery of documents or personal property, the execution of the judgment may not be stayed by the appeal unless the things required to be assigned or delivered are brought into court or are placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking is entered into on the part of the appellant by at least two sureties, in such sum as the court shall direct, to the effect that the appellant will obey the order of the appellate court on the appeal.

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

(h) Undertaking to Stay Execution-To Sell or Deliver Realty. If the judgment appealed from directs the sale or delivery of possession of real property, the execution of the same is not stayed unless an undertaking is executed on the part of the appellant by at least two sureties, in such sum as the court shall direct, to the effect that during the possession of such property by the appellant he will not commit nor suffer to be committed any waste thereon and that if the judgment is affirmed he will pay the value of the use and occupation of the property from the time of the appeal until the delivery of possession thereof pursuant to the judgment.

(i) Undertaking to Stay Abatement of Nuisance. If the judgment appealed from directs the abatement or restraint of the continuance of a nuisance, either public or private, the execution of the judgment is not stayed by the appeal unless an undertaking is entered into on the part of the appellant by at least two sureties, in such sum as the court shall direct, to the effect that the appellant will pay all damages which the opposite party may sustain by the continuance of the nuisance.

(j) Undertaking to Stay Other Executions. If the judgment appealed from directs the doing of any particular act or thing and no express provision is made by statute in regard to the undertaking to be given on appeal therefrom, the execution thereof is not stayed by the appeal therefrom unless an undertaking is entered into on the part of the appellant, in such sum as the court shall direct, and by at least two sureties, to the effect that the appellant will pay all damages which the opposite party may have sustained by not doing the particular thing or act directed to be done by the judgment appealed from and to such further effect as the court in its discretion directs.

(k) To Stay Intermediate Orders. When an appeal is from an order, the execution or performance thereof must not be delayed, except upon compliance with such conditions as the court shall direct, and, when so required, an undertaking must be executed on the part of the appellant by at least two sureties in such sums and to such effect as the court directs. The effect of the undertaking must be directed in accordance with the nature of the order appealed from, corresponding to the provisions of these rules in respect to appeals from judgments, when applicable, and such provisions must be made in all cases as will properly protect the respondent, and no appeal from judgments, when applicable, and such provisions must be made in all cases as will properly protect the respondent, and no appeal from an intermediate order before judgment stays proceedings unless the court in its discretion orders a stay.

(l) Power of Appellate Court Not Limited. This rule does not limit any power of an appellate court or of a judge or justice thereof to stay proceedings during the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.

(m) Stay of Judgment as to Multiple Claims or Multiple Parties. If a court has ordered a final judgment under the conditions stated in Rule 54(b), the court may stay enforcement of the judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.

(n) Order Staying Proceedings. The court may not order a stay of proceedings more than 20 days except to stay proceedings under an order or judgment appealed from or upon previous notice to the adverse 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