M E M O
TO:Joint Procedure Committee
FROM:Tom Tudor/Mike Hagburg
RE:Rule 35, N.D.R.App.P.; Scope of Review
The proposed amendments to Rule 35 generally track the form and style of the 1998 amendments to the federal rules-- the language and organization of the rule are amended to make the rule more easily understood and to make style and terminology consistent throughout the rules.
Rule 35(c) was added to incorporate the provisions of N.D.C.C. § 28-27-31. This section provides:
When new trial ordered--Time limited. In every case on appeal in which the supreme court orders a new trial or further proceedings in the court below, the record must be transmitted to such court and such proceedings must be had therein within one year from the date of such order in the supreme court, or in default thereof the action shall be dismissed, unless upon good cause shown the court shall order otherwise.
By adding the proposed Rule 35(c), N.D.C.C. § 28-27-31 would be superseded. Because the proposed Rule 35(c) time requirement relates to actions that would follow the Supreme Court's exercise of its powers under Rule 35, it seems to make more sense to have this requirement in Rule 35 than in the Century Code. As a point of information, in Croonquist v. Walker, 214 N.W. 871, 873 (N.D. 1927), the Court held that the term "proceedings" means any step taken to bring a case on for trial. In Croonquist, within the one-year time period, the plaintiff served a notice of trial upon the defendant and had the case placed upon the calendar for trial, although the case was continued to the next term outside of the one-year period. This was sufficient to meet the time requirement.