RULE 49. SERVICE AND FILING OF PAPERS
Effective Date: 3/1/1999
Obsolete Date: 3/1/2006
(a) Service: When Required. Written motions other than those which are heard ex parte, written notices, designations of record on appeal and similar papers shall be served upon each of the parties.
(b) Service: How Made. Whenever under these Rules or by an order of the court service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party personally is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided in Rule 5(b), N.D.R.Civ.P.
(c) Notice of Orders. Immediately upon entry of an order made on a written motion after arraignment, the clerk shall mail mail, or send by third-party commercial carrier, or otherwise serve on each party affected a notice of the entry and note the service in the docket. Lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted by Rule 37(b) of these Rules and Rule 4(b) of the N.D.R.App.P.
(d) Filing. Papers required to be served shall be filed with the clerk of court. Papers shall be filed in the manner provided in civil actions.
(e) Proof of Service. Proof of service of all papers required by law or these Rules to be served shall be filed in the clerk's office promptly and in any event before action is to be taken thereon by the court or the parties, unless excused by the court. The proof shall be the same as in civil actions.
Rule 49 was amended, effective March 1, 1990; March 1, 1999; March 1, 2006.
Rule 49 is an adaptation of Fed.R.Crim.P. 49.
Under Rule 45(c), when service is by mail or third-party commercial carrier, three days are added to any period of time within which a party is required to act.
Rule 49 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal 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.
Subdivision (c) is substantially in the language of its federal counterpart with minor differences in the first sentence to add flexibility in serving notice and to make it clear only a party affected by the order needs to be served with the notice. The second sentence of subdivision (c) provides lack of notice of entry does not affect the time to appeal, except insofar as it may give rise to a claim of excusable neglect under Rule 37 or N.D.R.App.P. 4.
Subdivision (c) was amended, effective March 1, 1999, to allow the clerk to send notice by commercial carrier as an alternative to the Postal Service.
Subdivision (d) incorporates by reference the provisions of N.D.R.Civ.P. 5(d) and (e).
Subdivision (e) has no federal counterpart and was adapted from the Alaska Rules of Criminal Procedure and regulates the manner for proving service has been made.
SOURCES: Joint Procedure Committee Minutes of April 28-29, 2005, pages 9-10; January 29-30, 1998, page 21; April 20, 1989, page 4;December 3, 1987, page 15; February 20-23, 1973, page 10; December 10-12, 1970, pages 17-19; Fed.R.Crim.P. 49.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. § 29-28-10.
CROSS REFERENCE: N.D.R.Crim.P. 37 (Appeal as of Right to District Court; How Taken); N.D.R.Crim.P. 45 (Computing and Extending Time); N.D.R.Civ.P. 5 (Service and Filing of Pleadings and Other Papers); N.D.R.App.P. 4 (Appeal—When Taken).