N.D.R.App.P.
RULE 4. APPEAL--WHEN TAKEN
(a) Appeals in Civil Cases Appeal in Civil Case.
(1) Time For Filing Notice of Appeal. In a civil case, except as provided in paragraph (a)(4), the notice of appeal required by Rule 3 must be filed with the clerk of the trial clerk of district court within 60 days of from service of notice of entry of the judgment or order being appealed from. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the first notice of appeal was filed, or within the time otherwise prescribed by this subdivision, whichever period last expires.
(2) Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this subdivision, whichever period ends later.
(3) Effect of Motion on Notice of Appeal.
(A) If a party timely files with the clerk of district court any of the following motions under the North Dakota Rules of Civil Procedure, the full time to file an appeal runs for all parties from service of notice of the entry of the order disposing of the last such remaining motion:
(i) for judgment under Rule 50(b);
(ii) to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment;
(iii) for attorney's fees under Rule 54;
(iv) to alter or amend the judgment under Rule 59;
(v) for a new trial under Rule 59; or
(vi) for relief under Rule 60 if the motion is served and filed no later than 15 days after notice of entry of judgment;
(B)(i) If a party files with the clerk of district court any motion listed in subparagraph (a)(3)(A) after a notice of appeal is filed, the party filing the motion must notify the supreme court clerk in writing, and the court may remand the case to the district court for disposition of the motion.
(ii) A party intending to challenge an order disposing of any motion listed in subparagraph (a)(3)(A), or a judgment altered or amended upon such a motion, must file a notice of appeal, or an amended notice of appeal, in compliance with Rule 3(c), within the time prescribed by this rule measured from the service of notice of the entry of the order disposing of the last such remaining motion.
(iii) No additional fee is required to file an amended notice.
The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party under the North Dakota Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from service of notice of the entry of any of the following orders made upon a timely motion under such rules: (1) granting or denying a motion for judgment under N.D.R.Civ.P. 50(b); (2) granting or denying a motion under N.D.R.Civ.P. 52(b), to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under N.D.R.Civ.P. 54, for attorneys' fees; (4) granting or denying a motion under N.D.R.Civ.P. 59, to alter or amend the judgment; (5) denying a motion for a new trial under N.D.R.Civ.P. 59; or (6) granting or denying a motion for relief under N.D.R.Civ.P. 60, if the motion is served and filed no later than 15 days after notice of entry of judgment.
(4) Motion for Extension of Time.
(A) The district court may extend the time to file a notice of appeal if:
(i) a party so moves no later than 30 days after the time prescribed by subdivision (a) expires; and
(ii) that party shows excusable neglect or good cause.
(B) If a motion for extension of time is filed, notice must be given to the other parties.
(C) No extension under paragraph (a)(4) may exceed 30 days after the prescribed time.
Upon a showing of excusable neglect, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed for appeal by this subdivision, other rule, or statute. Such an extension may be granted before or after the time otherwise prescribed by this subdivision has expired; but if a request for an extension is made after such time has expired, it must be made by motion with such notice as the trial court deems appropriate.
(b) Appeals in Criminal Cases Appeal in Criminal Case.
(1) Time for Filing Notice of Appeal.
(A) In a criminal case, the notice of appeal by a defendant a defendant's notice of appeal must be filed with the clerk of the trial clerk of district court within 10 30 days after the entry of the judgment or order being appealed from.
(B) If an appeal by the state is authorized by statute, the notice of appeal must be filed with the clerk of district court within 30 days after the entry of the judgment or order being appealed.
(2) Filing Before Entry of Judgment. A notice of appeal filed after the district court announces a decision, sentence, or order, but before the entry of the judgment or order, is treated as filed on the date of and after the entry.
(3) Effect of Motion on Notice of Appeal.
(A) If a defendant timely makes any of the following motions under the North Dakota Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 30 days after the entry of the order disposing of the last such remaining motion, or within 30 days after the entry of the judgment of conviction, whichever period ends later:
(i) for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 30 days after the entry of the judgment;
(ii) for arrest of judgment under Rule 34.
If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 10 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made before or within 10 days after entry of the judgment.
(2) If an appeal by the state is authorized by statute, the notice of appeal must be filed with the clerk of the trial court within 30 days after the entry of the judgment or order appealed from.
(B) If the defendant files with the clerk of district court any motion listed in subparagraph (b)(3)(A) after a notice of appeal is filed, the defendant must notify the supreme court clerk in writing, and the court may remand the case to the district court for disposition of the motion.
(C) A notice of appeal filed after the district court announces a decision, sentence, or order, but before it disposes of any of the motions referred to in subparagraph (b)(3)(A), becomes effective upon the later of the following:
(i) the entry of the order disposing of the last such remaining motion;
(ii) the entry of the judgment of conviction.
(D) A valid notice of appeal is effective, without amendment, to appeal from an order disposing of any of the motions referred to in subparagraph (b)(3)(A).
(3) A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket. A notice of appeal filed after the announcement of a decision, sentence, or order but before entry of the judgment or order must be treated as filed after the entry and on the day thereof.
(4) Motion for Extension of Time. Upon a showing finding of excusable neglect or good cause, the trial district court may,--before or after the time has expired, with or without motion and notice,--extend the time for filing to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
(5) Jurisdiction. The filing of a notice of appeal under this subdivision does not divest a district court of jurisdiction to correct a sentence under N.D.R.Crim.P. 35(a), nor does the filing of a motion under Rule 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion.
(6) Entry Defined. A judgment or order is entered for purposes of this subdivision when it is entered on the criminal docket.
(c) Appeals in Contempt Cases Appeal in Contempt Case. A notice of appeal shall must be filed with the clerk of the trial clerk of district court within 60 days after entry of the judgment or order being appealed from. Upon a showing finding of excusable neglect or for good cause, the trial district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
(d) Appeal in Post-Conviction Proceeding. A notice of appeal must be filed with the clerk of the trial district court within 60 days of service of notice of entry of the judgment or order being appealed. Upon a finding of excusable neglect or good cause, the trial district court may, before or after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision.
(e) Mistaken Filing in Supreme Court. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the supreme court, the supreme court clerk must note on the notice the date when it was received and send it to the clerk of district court. The notice is then considered filed in the district court on the date so noted.
EXPLANATORY NOTE
Rule 4 was amended, effective March 1, 1986; March 1, 1994; March 1, 1997; March 1, 1998; March 1, 1999; August 1, 2001; March 1, 2003.
The time for civil appeals runs from "service of notice of entry" of the order or judgment. However, service of notice of entry of judgment is not necessary to start the time running for filing a post-judgment motion or appeal if the record clearly evidences actual knowledge of entry of judgment by the affirmative action of the moving or appealing party. See N.D.R.Civ.P. 58(b); Gierke v. Gierke, 1998 ND 100, ¶¶ 6-12, 578 N.W.2d 522, 525-26.; Thorson v. Thorson, 541 N.W.2d 692, 694-95 (N.D. 1996).
The responsibility under subdivision (a) is shifted to counsel to serve the notice and commence the period for appeal. This differs from the federal rule, which provides the time for appeal is to run from "the date of entry."
The time limit for taking an appeal does not prevent the taking of an appeal at any time after the entry of the judgment or order and before service of notice of entry.
Subdivision (a) was amended, effective March 1, 1999, to provide the 30 day extension for excusable neglect is to be added to the time for appeal provided by the statute or rule setting the time for appeal. A party seeking an extension of time to appeal should file a notice of appeal with the motion for extension.
Subdivision (b) was amended, effective March 1, 2003, to increase the time for a criminal defendant to appeal from 10 days to 30 days. is similar to N.D.R.Crim.P. 37(b). Paragraphs one and two pertain to appeals by the defendant and prosecution, respectively, and paragraph three pertain to appeals by either the prosecution or defendant.
Subdivision (d) was adopted, effective August 1, 2001, to provide a time for appeal in a post-conviction proceeding.
Subdivision (e) was adopted, effective March 1, 2003, to provide a procedure to be used when a notice of appeal is mistakenly filed in the supreme court.
Rule 4 was amended, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 4. 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 26-27, 2001, pages 4-5; September 28-29, 2000, pages 10-13; January 27-28, 2000, pages 4-9; September 23-24, 1999, pages 11-12; April 30-May 1, 1998, page 13; January 30, 1997, page 8; January 25-26, 1996, pages 7-10; April 29-30, 1993, pages 2-3, 16-18; November 29, 1984, pages 19-20; April 26, 1984, pages 23-24; January 20, 1984, pages 10-15; September 18-19, 1980, page 20; January 12-13, 1978, page 25; Fed.R.App.P. 4.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. § 28-27-04.