AMENDMENTS TO RULES. SUPREME COURT OF NORTH DAKOTA.1 Rule I. [Clerk's Office-Where.] Until oth- | the original papers used by each party on the erwise directed by a rule of court, the clerk of the supreme court shall keep his office at the capital of the state. When absent from the capital, the office shall be kept open, and the duties of the clerk shall be performed by a deputy. The clerk shall not practice as an attorney or counselor. Rule II. [Clerk-Duties of.] He shall keep a complete record of the proceedings of the court, and shall perform all the duties pertaining to his office. He must not allow any written opinion of the court, or any original record or paper pertaining to his office to be taken therefrom without an order from the court, or one of the judges thereof. He shall promptly announce, by letter, any decision rendered or order entered in any cause or matter, to one of the attorneys of each side, when such attorneys are not in attendance upon the court. Rule III. [Clerk's Fees-Deposit of.] The appellant, on bringing a cause to this court, shall, at or before the filing of the record, deposit with the clerk of said court the sum of eight dollars, to apply on his fees, and in all cases (except habeas corpus) originally brought in this court, the plaintiff or petitioner, at or before the filing of the first papers in the case, shall deposit with the clerk the same amount for the same purpose. Rule IV. [Appeals-Notice How ServedWhen Entitled to be Heard.] The notice of appeal in civil cases shall be signed by the appellant or a licensed attorney residing in this state, and shall be served in the manner indicated in section 5606, Revised Codes; and if not served at least sixty days before the first day of the next succeeding term of the supreme court the case shall not be heard at such term unless a printed abstract and a printed brief shall be served and filed by one party or the other as provided by section 5632, Revised Codes, at least twenty-five days prior to the first day of such term. application for the order as required by section 5607, Revised Codes, with his certificate attached thereto as herein provided. In framing appealable orders the attention of trial courts and of counsel is particularly called to the terms of section 5719 of the Revised Codes. The following or equivalent forms of certificate may be used: [Form of Clerk's Certificate When the Appeal is from a Judgment in Civil Cases.] State of North Dakota, County of } SS. Judicial District. I, A. B., clerk of the district court within and for the said county of in the judicial district of the state of North Dakota, do hereby certify that the above and foregoing papers are the original notice of appeal, with proof of service thereof, and the undertaking given thereon, and also the original judgment pended (or full, true and complete copies of roll and certificate of the judge thereto apsaid judgment roll and certificate, as the case may be) in the above entitled action, wherein is plaintiff and is defendant, as the same now remain of record in said court, and the same are transmitted to the supreme court pursuant to said appeal. In witness whereof, I have hereunto set my hand and affixed the seal of said court this day of A. D. 190—. [Seal.] Clerk. [Form of Clerk's Certificate When the Appeal is from an Order.] State of North Dakota, County of Judicial District. for said county of I, A. B., clerk of the district court within and in the judicial district of the state of North Dakota, do hereby certify that the above and foregoing is the original notice of appeal, with proof of service thereof, and the original undertaking given thereon, also the original order from which an appeal is taken, with all the papers used by each party on the application for such order, to (or full, true and complete copies of such with the certificate of the judge attached thereorder, papers and certificate, as the case may be) in the above entitled action, wherein is defendant, as the same is plaintiff and now remain of record in said court, and the same are transmitted to the supreme court pursuant to said appeal. day of [Seal.] A. D. 190—. Clerk. In witness whereof, I have hereunto set my Rule V. [Papers to be Transmitted-hand and affixed the seal of said court this Clerk's Certificate Appended.] When an appeal is taken either from a judgment or an order (except in cases where by special order of the district court copies are sent to the supreme court in lieu of original papers) the clerk shall transmit the original judgment roll, or in case of an order, the original order and 1 For rules as originally adopted, see 61 N. W. vii; and, as amended, see 74 N. W. vi. 91 N.W. [Form of Clerk's Certificate in a Criminal Case.] State of North Dakota, County of } Judicial District. I, A. B., clerk of the district court within and for said county of in the judicial district of the state of North Dakota, do, pursuant to the notice of appeal filed here(V) The specifications above mentioned are vital parts of the statement of the case and must be included in and settled and allowed by the district courts as parts thereof. in, hereby certify and return that the above | and proceedings and other matters as are necand foregoing is a true and complete transcript essary to explain it and no more. of the record in this case, to wit: The information (or indictment); the minutes of the clerk of the district court; the instructions to the jury, given and refused, with the endorsements thereon; a statement of the case and a copy of the judgment and also the certificate of the judge of the district court, in an action wherein the state of North Dakota is plaintiff and is defendant, as the same now remains of record in the said court, and the same are transmitted to the supreme court pursuant to said appeal. In witness whereof, I have hereunto set my hand and affixed the seal of said court this day of A. D. 190-. [Seal.] Clerk. Rule VI. [Record to be Transmitted on Appeals From Orders-From Judgments.] On appeal from an order, the record transmitted must contain the order appealed from and all of the original papers used by each party on the application for such order, or copies thereof, as provided in section 5607, Revised Codes. When any portion of the record is embraced in the stenographer's minutes the same shall be transcribed and certified to by the presiding judge. All papers and evidence must be described in the order as provided by section 5719, Revised Codes. On appeal from a judgment the record must contain the judgment roll, as defined in section 5489, Revised Codes, and such other orders and papers as have been, by the order of the court, incorporated into and made a part of it, including such order. And in making up such judgment roll the papers constituting the same shall when practicable be securely attached together in the order set forth in rule 12, for the preparation of abstracts. In all cases the record transmitted must contain the certificate of the judge, as provided in rule 9. Whenever copies of any papers included in the record are transmitted to this court, on appeal, in place of the original, such copies must be plainly typewritten, double spaced, on good paper and the pages thereof must be consecutively numbered and the lines on each page must be so numbered. Rule VII. [Settlement and Contents of Statement of the Case in Cases Not to be Tried Anew on Appeal under Section 5630.] The statement of the case in cases not to be tried anew on appeal, under section 5630, must be prepared and settled in conformity with sections 5464, 5465, 5466, 5467, 5468, 5469, and 5470, Revised Codes. If the evidence, or any part thereof, is embraced in the statement, it must be epitomized by excluding all superfluous matter and verbiage. The evidence shall be reduced to a narrative form, except in those particulars in which a transcript of part of the stenographer's minutes becomes necessary to preserve the sense or present the particular points of error. All superfluous matter, including all evidence not bearing upon the specifications, is required to be rigorously excluded. The stenographer's minutes of the trial, if settled and allowed, do not constitute a statement of the case, in this class of cases, within the meaning of the law and will not be so regarded by this court. The portion of such statement containing the evidence shall be clearly typewritten, double spaced, on good paper and the pages shall be consecutively numbered and the lines on each page so numbered. Documents on file in the case and original exhibits offered in evidence, or properly certified or authenticated copies of such documents and such exhibits, may be attached to and made a part of the statement of the case, or their substance stated. In setting out exhibits, exclude all merely formal parts. When it is necessary to embody exhibits in the statement and they are of such a nature that they cannot be readily attached to the remainder of the statement of the case, they, as well as all other exhibits included in the statement must be clearly identified as a part of the statement by a proper reference thereto in the judge's certificate to the settled statement and filed with and transmitted to this court as a part of the record. (For statements under section 5630, see rule 15.) Rule VIII. [Statement may be Settled and Signed by Other than Presiding Judge-When and How.] Where a judge of the district court who may be authorized by law to settle and sign a statement of the case in any action, dies or becomes disqualified by illness, is absent from the state or is removed from office before the statement is settled and signed, any other judge of the district court of any Following the title of the case it shall con- district in this state adjoining that in which tain: First-A specification of the errors of law upon which the appellant intends to rely. Second-If the decision is attacked for insufficiency of the evidence it must contain a specification of the particulars in which the evidence is alleged to be insufficient to justify the verdict or other decision. The errors upon which the party relies must be stated, with so much of the evidence such action is pending, shall, upon a satisfactory showing of the facts, be authorized to settle and sign such statement, and when so settled and signed the same shall when filed in the proper office be in all respects a valid and binding statement of the case in such action: provided, that this rule shall have no application to cases where a judge of the district court whose duty it is to settle and sign a statement wholly refuses to settle and sign any statement in the case or who in substantially the following manner and refuses to allow an exception in accordance form: with the facts. In the Supreme Court. John Doe, Plaintiff and VS. Complaint. Appellant (or Respondent, as case may be), Appellant (or case may be). Rule IX. [Judge's Certificate Required.] In all civil actions and special proceedings which are brought into the supreme court by appeal the judge of the district court shall append to the original judgment roll or record, filed in the court below, a certificate signed by him as follows: In civil actions Richard Roe, Defendant and Respondent, as and special proceedings the certificate shall state in substance that the above and foregoing papers-naming each separately-are conThe plaintiff in his complaint states his cause tained in and constitute the judgment roll (or plaint necessary to an understanding of the of action as follows: (Set out all the comother record as the case may be) and the questions to be presented to this court, and whole thereof. The original certificate (or no more. In setting out exhibits omit all merecopy thereof in cases where a copy is trans-ly formal irrelevant parts; as, for example, if the exhibit be a deed or mortgage and no quesmitted) must be embraced in the record sent tion is raised as to the acknowledgment, omit to this court. the acknowledgment.) The summons is made a part of the record by statute. of Demurrer. Rule X. [Respondent may Require Return to be Filed-When.] The appellant shall cause the proper return to be made and filed To which complaint the defendant demurred, setting up the following grounds: (State only with the clerk of this court within sixty days the grounds of the demurrer, omitting all after the appeal is perfected. If he fails to formal parts. If a pleading was attacked by do so, the respondent may, by notice in writ- motion below, and the ruling thereon is one ing, require such return to be filed within of the questions to be reviewed, set out the motion, omitting all formal parts.) And on twenty days after the service of such notice, the 190, the same was suband if the return is not filed in pursuance of mitted to the court, and the court made the such notice, the appellant shall be deemed to following ruling thereon: (Here set out the have abandoned the appeal, and on an affi- made in the chronological order of the events ruling. In every instance let the abstract be davit proving when the appeal was perfected in the case,-letting each ruling appear in and the service of such notice, and a certifi- the proper connection. If the defendant pleadcate of the clerk of this court that no returned over, and thereby waived his right to appeal from these rulings, no mention of them should has been filed, the respondent may on eight be made in the abstract, but it should condays' notice in writing to the appellant apply tinue.) to any judge of this court for an order dismissing the appeal for want of prosecution, with costs, and the court below may thereupon proceed as though there had been no appeal: provided, nevertheless, that this rule shall have no application to cases where the respondent has elected to cause the record to be transmitted to the supreme court as regulated by the proviso contained in section 5607, Revised Codes. Answer. Which complaint the defendant answered, setting up the following defenses: (Here set If motions or demurrers were interposed to the out the defenses, omitting all formal parts. pleading, proceed as directed with reference to the complaint. Frame the record so that it will properly present all questions to be reviewed and raised before issue is joined. When the transcript shows issue joined, proceed.) On the of -, 190, said cause was tried by a jury (or the court, as the case may be), and on the trial the following proceedings of the case as is necessary to show the rul were had: (Set out so much of the statement ings of the court to which exceptions were taken during progress of the trial.) Instructions. Rule XI. [Defective Return-How Cured.] If the record returned by the clerk of the court below is defective, either party may, on an affidavit specifying the defect or omission, apply to the chief justice or one of the judges of this court for an order that such clerk make a further return and supply the omission or defect without delay. And in a proper case on such application, and in such terms as shall be just, the record may be returned for the use of the district court when that court desires to amend the record of the pro-lowing instructions to the jury: (Set out the ceedings had below. Such application may be made at any time before the case is finally submitted. Rule XII. [Preparation of Abstracts in Cases Which are Not to be Tried Anew on Appeal under Section 5630.] The abstract in cases which are not to be tried anew under section 5630, Revised Codes, shall be prepared fendant, as the case may be) asked the court On the the court, instead of the instructions and verdict of the jury, set out so much of the findings of fact and conclusions of law, and re quests for findings, if any, together with the exceptions relating thereto, as may be necessary to present the errors complained of.) Motion for New Trial. On the day of 190, the plaintiff (or defendant) served notice of intention to move for a new trial, as follows: (Here insert notice of intention, omitting all formal parts.) On the day of 190, the plaintiff (or defendant) moved for a new trial upon the grounds therein specified. On the day of ,190, the court made the following rulings upon said motion: (Set out the record of the ruling to which the plaintiff [or defendant] at the proper time excepted.) Judgment. On the day of 190, the following judgment was entered: (Set out the judgment entry [or order] appealed from.). On the day of 190, the plaintiff (or defendant) perfected an appeal to the supreme court of the state of North Dakota from the judgment (or order as the case may be), by serving upon the defendant (or plaintiff, as the case may be), and the clerk of the district court of county, a notice of appeal. (If supersedeas bond was filed, state the fact.) (This outline is presented for the purpose of indicating the character of the abstract or abridgment of the record contemplated by the rule, which, like all rules, is to be substantially complied with. Of course, no formula can be laid down applicable to all cases. The rule to be observed in abstracting a case is: Preserve everything material to the question to be decided, and omit everything else. When statements of the case are framed in accordance with the statute and rule 7 the work of abstracting the record for use in this court will be reduced to the minimum, and will generally relate only to matters of form.) abstract of such further or additional portions of the record as he shall deem necessary to a full understanding of the questions presented to this court for decision. Rule XIV. [Briefs in Cases Not to be Tried Anew on Appeal under Section 5630, Revised Codes.] The appellant's brief, in cases not to be tried anew on appeal under section 5630, Revised Codes, shall contain: First: A concise and true statement of the facts in the case which are material to the points of law to be argued with proper reference to the pages and folios of the abstract which sustain them. Second: An assignment of errors which need follow no stated form but must, in a way as specific as the case will allow, point out the errors objected to, and only such as he expects to rely on and asks this court to examine. Among several points in the demurrer in a motion, in the instructions, or in other rulings excepted to, it must designate which is relied on as error, and the court will, in its discretion, only regard errors which are assigned with the requisite exactness. (In criminal cases the counsel for the appellant may also file a new assignment of errors in this court, specifically setting forth the errors he desires to have reviewed, as in this rule provided.) The assignments of error need not quote or duplicate the specifications of error set out in the statement, but shall refer to the page of the abstract where the particular specification of error is found and also to the page or pages of the abstract in which the matter is found upon which the error is assigned. In the body of his brief appellant shall present his reasons in support of each error assigned, with a concise statement of the principles of law applicable thereto with authorities supporting the same, treating each assignment relied upon separately, and such errors as are merely assigned and not supported in the body of the brief by reasons or authorities The abstract, when it consists of more than five printed pages, must be followed by an accurate index of its contents, referring to folios and pages. Witnesses shall be indexed by name, and exhibits by the numbers or characters by which they are identified in the rec-will be deemed to have been abandoned. ord. In exceptional cases, where a reference The brief of respondent shall be of like to the record proper is desired, the appellant character with that required of the appellant, must, by apt words, refer the court to such except that no assignment of errors shall be parts of the record as he desires to have ex- required, and no statement of facts unless amined. All material parts of the record that presented by the appellant is controshould be embodied in the abstract or amend-verted. ed abstract, and this court will, as a rule, decline to explore the record coming up from the district court. When maps, surveys or other material exhibits are included in the record, which it is impossible to duplicate in the abstract, the abstract shall state that fact, and the court will then examine such exhibits in the original record. (For abstracts in cases to be tried anew on appeal under section 5630, see rule 16.) Rule XIII. [Respondent's Additional Abstract.] If the respondent shall deem the abstract of the appellant, provided for in rule 12, insufficient, he may prepare an amended When there is no assignment of errors, as required by this rule, counsel will not be heard except at the request of the court; and errors not assigned according to this rule will be disregarded. The court may, however, at its option, notice an error not assigned. (For briefs under section 5630, see rule 17.) Rule XV.2 [Preparation of Statement of the Case.] The statement of the case, in cases to be tried anew on appeal, under the provisions of section 5630, Revised Codes, must conform as to its contents to the provisions 2 Rules 15, 16, and 17 are applicable only to cases to be tried anew on appeal under the provisions of section 5630, Revised Codes. |