Abbildungen der Seite
[blocks in formation]








[ocr errors]


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 application for the order as required by secof the supreme court shall keep his office at tion 5607, Revised Codes, with his certificate the capital of the state. When absent from attached thereto as herein provided. In framthe capital, the office shall be kept open, and ing appealable orders the attention of trial the duties of the clerk shall be performed by courts and of counsel is particularly called to a deputy. The clerk shall not practice as an the terms of section 5719 of the Revised attorney or counselor.

Codes. The following or equivalent forms of

certificate may be used: Rule II. (Clerk-Duties of.] He shall keep a complete record of the proceedings of the (Form of Clerk's Certificate When the Appeal court, and shall perform all the duties per- is from a Judgment in Civil Cases.] taining to his office. He must not allow any State of North Dakota, written opinion of the court, or any original

Judicial District.


County of record or paper pertaining to his office to be I, A. B., clerk of the district court within taken therefrom without an order from the and for the said county of

in the court, or one of the judges thereof. He shall judicial district of the state of North Dakota,

do hereby certify that the above and foregoing promptly announce, by letter, any decision papers are the original notice of appeal, with rendered or order entered in any cause or proof of service thereof, and the undertaking matter, to one of the attorneys of each side, given thereon, and also the original judgment when such attorpeys are not in attendance up- pended (or full, true and complete copies of

roll and certificate of the judge thereto apon the court.

said judgment roll and certificate, as the case Rule III. (Clerk's Fees--Deposit of.] The may be) in the above entitled action, wherein

is plaintiff and

is defendant, as appellant, on bringing a cause to this court, the same now remain of record in said court, shall, at or before the filing of the record, and the same are transmitted to the supreme deposit with the clerk of said court the sum

court pursuant to said appeal.

In witness whereof, I have hereunto set my of eight dollars, to apply on his fees, and in hand and affixed the seal of said court this all cases (except habeas corpus) originally

day of

A. D. 1.90 brought in this court, the plaintiff or petition


Clerk. er, at or before the filing of the first papers [Form of Clerk's Certificate When the Appeal in the case, shall deposit with the clerk the

is from an Order.] same amount for the same purpose.

State of North Dakota,

} County of

Judicial District. Rule IV. (Appeals-Notice How ServedWhen Entitled to be Heard.] The notice of for said county of

I, A. B., clerk of the district court within and

in the

judicial appeal in civil cases shall be signed by the district of the state of North Dakota, do hereappellant or a licensed attorney residing in by certify that the above and foregoing is the this state, and shall be served in the manner ice thereof, and the original undertaking, given

original notice of appeal, with proof of servindicated in section 5606, Revised Codes; and thereon, also the original order from which an if not served at least sixty days before the appeal is taken, with all the papers used by first day of the next succeeding term of the each party on the application for such order, supreme court the case shall not be heard atto (or full, true and complete copies of such

with the certificate of the judge attached theresuch term unless a printed abstract and a order, papers and certificate, as the case may printed brief shall be served and filed by one be) in the above entitled action, wherein party or the other as provided by section 5632, is plaintiff and is defendant, as the same

now remain of record in said court, and the Revised Codes, at least twenty-five days prior are transmitted to the supreme court to the first day of such term.

pursuant to said appeal.

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 ap

day of

A. D. 1904, peal is taken either from a judgment or an


Clerk. order (except in cases where by special order [Form of Clerk's Certificate in a Criminal of the district court copies are sent to the su

Case.] preme court in lieu of original papers) the State of North Dakota,

} Judicial District. clerk shall transmit the original judgment roll, County of or in case of an order, the original order and I, A, B., clerk of the district court within

and for said county of - in the

juFor rules as originally adopted, see 61 N. W. vit; dicial district of the state of North Dakota, aod, as amended, see 74 N. W. vi.

do, pursuant to the notice of appeal filed here91 N.W.




[ocr errors]



in, hereby certify and return that the above and proceedings and other matters as are nec-
and foregoing is a true and complete transcript essary to explain it and no more.
of the record in this case, to wit: The infor-
mation (or indictment); the minutes of the

The specifications above mentioned are vital
clerk of the district court; the instructions to parts of the statement of the case and must
the jury, given and refused, with the endorse- be included in and settled and allowed by the
ments thereon; a statement of the case and district courts as parts thereof.
a copy of the judgment and also the certificate
of the judge of the district court, in an action

If the evidence, or any part thereof, is emwherein the state of North Dakota is plaintiff braced in the statement, it must be epitomized and is defendant, as the same now re- by excluding all superfluous matter and verinains of record in the said court, and the same

biage. are transmitted to the supreme court pursuant to said appeal.

The evidence shall be reduced to a narraIn witness whereof, I have hereunto set my tive form, except in those particulars in which hand and affixed the seal of said court this a transcript of part of the stenograpber's min

day of A. D. 1904, [Seal.]


utes becomes necessary to preserve the sense

or present the particular points of error. All Rule VI. [Record to be Transmitted on Ap- superfluous matter, including all evidence not peals-From Orders-From Judgments.] On bearing upon the specifications, is required to appeal from an order, the record transmitted be rigorously excluded. must contain the order appealed from and all The stenographer's minutes of the trial, if of the original papers used by each party on settled and allowed, do not constitute a statethe application for such order, or copies there- ment of the case, in this class of cases, within of, as provided in section 5607, Revised Codes. the meaning of the law and will not be so reWhen any portion of the record is embraced garded by this court. in the stenographer's minutes the same shall The portion of such statement containing be transcribed and certified to by the presid- the evidence shall be clearly typewritten, ing judge. All papers and evidence must be double spaced, on good paper and the pages described in the order as provided by section shall be consecutively numbered and the lines 5719, Revised Codes.

on each page so numbered. On appeal from a judgment the record must Documents on file in the case and original contain the judgment roll, as defined in sec- exhibits offered in evidence, or properly certion 5489, Revised Codes, and such other or- tified or authenticated copies of such docuders and papers as have been, by the order ments and such exhibits, may be attached to of the court, incorporated into and made a and made a part of the statement of the case, part of it, including such order. And in mak- or their substance stated. In setting out exing up such judgment roll the papers consti-hibits, exclude all merely formal parts. tuting the same shall when practicable be se- When it is necessary to embody exhibits curely attached together in the order set forth in the statement and they are of such a nain rule 12, for the preparation of abstracts. ture that they cannot be readily attached to

In all cases the record transmitted must the remainder of the statement of the case, contain the certificate of the judge, as provid- they, as well as all other exhibits included ed in rule 9.

in the statement must be clearly identified Whenever copies of any papers included in as a part of the statement by a proper referthe record are transmitted to this court, on ence thereto in the judge's certificate to the appeal, in place of the original, such copies settled statement and filed with and transmitmust be plainly typewritten, double spaced, ted to this court as a part of the record. on good paper and the pages thereof must be (For statements under section 5630, see rule consecutively numbered and the lines on each 15.) page must be so numbered.

Rule VIII. (Statement may be Settled and Rule VII. [Settlement and Contents of Signed by Other than Presiding Judge-When Statement of the Case in Cases Not to be and How.) Where a judge of the district Tried Anew on Appeal under Section 5630.] court who may be authorized by law to settle The statement of the case in cases not to be and sign a statement of the case in any action, tried anew on appeal, under section 5630, dies or becomes disqualified by illness, is abmust be prepared and settled in conformity sent from the state or is removed from office with sections 5464, 5165, 5166, 5167, 5468, before the statement is settled and signed, 54169, and 5470, Revised Codes.

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:

such action is pending, shall, upon a satisFirst-A specification of the errors of law factory showing of the facts, be authorized upon which the appellant intends to rely. to settle and sign such statement, and when

Second-If the decision is attacked for in- so settled and signed the same shall when sufficiency of the evidence it must contain a filed in the proper office be in all respects a specification of the particulars in which the valid and binding statement of the case in evidence is alleged to be insufficient to justify such action: provided, that this rule shall the verdict or other decision.

have no application to cases where a judge The errors upon which the party relies of the district court whose duty it is to settle must be stated, with so much of the evidence and sign a statement wholly refuses to settle

[ocr errors]
[ocr errors]

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. Rule IX. (Judge's Certificate Required.)

State of North Dakota. In all civil actions and special proceedings

Term, 190 which are brought into the supreme court by

Appellant for appeal the judge of the district court shall

John Doe, Plaintiff and Respondent, as

case may be), append to the original judgment roll or record, filed in the court below, a certificate

Appellant (or signed by him as follows: In civil actions Richard Roe, Defendant and Respondent, as and special proceedings the certificate shall

case may be). state in substance that the above and forego

Complaint. ing papers-naming each separately-are con

The 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 senttion is raised as to the acknowledgment, omit to this court.

the acknowledgment.) The summons is made

a part of the record by statute. Rule X. (Respondent may Require Return to be Filed-When.] The appellant shall

Demurrer. cause the proper return to be made and filed

To which complaint the defendant demurred, with the clerk of this court within sixty days the grounds of the demurrer, omitting, all

setting up the following grounds: (State only 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 of - 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 darit 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 dis

Answer. missing the appeal for want of prosecution, Which complaint the defendant answered, with costs, and the court below may there- setting up the following defenses: (Here set

out the defenses, omitting all formal parts. upon proceed as though there had been no

If motions or demurrers were interposed to the appeal: provided, nevertheless, that this rule pleading proceed as directed with reference to shall have no application to cases where the the complaint. Frame the record so that it respondent has elected to cause the record to will properly present all questions to be rebe transinitted to the supreme court as regu- the transcript shows issue joined, proceed.)

viewed and raised before issue is joined. When lated by the proviso contained in section 5607, On the of

1904, said cause was Revised Codes.

tried by a jury (or the court, as the case may

be), and on the trial the following proceedings Rule XI. [Defective Return-How Cured.) of the case as is necessary to show the rul

were had:

(Set out so much of the statement If the record returned by the clerk of the ings of the court to which exceptions were takcourt below is defective, either party may, on en during progress of the trial.) an affidavit specifying the defect or omission,

Instructions. apply to the chief justice or one of the judges of this court for an order that such clerk fendant, as the case may be) asked the court

At the proper time the plaintiff (or the demake a further return and supply the omis- to give each of the following instructions to sion or defect without delay. And in a prop- the jury: (Set out the instructions referred er case on such application, and in such terms to, and continue.) Which the court refused as

to each instruction, to which several rulings as shall be just, the record may be returned the plaintiff (or defendant) at the proper time for the use of the district court when that excepted, and thereupon the court gave the folcourt desires to amend the record of the pro- lowing instructions to the jury: (Set out the ceedings had below. Such application may (give the numbers, if numbered), or (if not

instructions.) To the giving of those numbered be made at any time before the case is finally numbered) to the giving of the following porsubmitted.

tions thereof (setting out the portions), and to

the giving of each thereof, plaintiff (or deRule XII. [Preparation of Abstracts in fendant) at the proper time specifically exCases Which are Not to be Tried Anew on


Verdict. Appeal under Section 5630.) The abstract in cases which are not to be tried anew under returned the following verdiet into court:

On the day of - 190, the jury section 5630, Revised Codes, shall be prepared | (Set out the verdict.) (If the cause be tried by the court, instead of the instructions and ver- | abstract of such further or additional portions dict of the jury, set out so much of the find- of the record as he shall deem necessary to a ings of fact and conclusions of law, and re full understanding of the questions presented quests for findings, if any, together with the exceptions relating thereto, as may be nec- to this court for decision. essary to present the errors complained of.)

Rule XIV. [Briefs in Cases Not to be Motion for New Trial.

Tried Anew on Appeal under Section 5630, On the

day of 190, the plain-, Revised Codes.] The appellant's brief, in castiff (or defendant) served notice of intention to move for a new trial, as follows: (Here in- es not to be tried anew on appeal under secsert notice of intention, omitting all formal tion 5630, Revised Codes, shall contain: parts.) On the day of , 190—, the First: A concise and true statement of the plaintiff (or defendant) moved for a new trial facts in the case which are material to the upon the grounds therein specified. On the

day of 190—, the court made the points of law to be argued with proper referfollowing rulings upon said motion: (Set out ence to the pages and folios of the abstract the record of the ruling to which the plaintiff which sustain them. Second: An assignment (or defendant) at the proper time excepted.)

of errors which need follow no stated form Judgment.

but must, in a way as specific as the case On the day of

190—, the fol- will allow, point out the errors objected to, lowing judgment was entered': (Set out the and only such as he expects to rely on and judgment entry (or order] appealed from.). 02 asks this court to examine. the day of

190-, the plaintiff (ör defendant) perfected an appeal to the su

Among several points in the demurrer in a preme court of the state of North Dakota motion, in the instructions, or in other rulings from the judgment (or order as the case may excepted to, it must designate which is rebe), by serving upon the defendant (or plaintiff, as the case may be), and the clerk of the lied on as error, and the court will, in its district court of county, a notice of ap- discretion, only regard errors which are aspeal. (If supersedeas bond was filed, state the signed with the requisite exactness. (In fact.)

criminal cases the counsel for the appellant (This outline is presented for the purpose of may also file a new assignment of errors in indicating the character of the abstract or this court, specifically setting forth the errors abridgment of the record contemplated by the he desires to have reviewed, as in this rule rule, which, like all rules, is to be substantial- provided.) The assignments of error need not ly complied with. Of course, no formula can quote or duplicate the specifications of error be laid down applicable to all cases. The rule set out in the statement, but shall refer to to be observed in abstracting a case is: Pre- the page of the abstract where the particuserve everything material to the question to lar specification of error is found and also to be decided, and omit everything else. When the page or pages of the abstract in which statements of the case are framed in accord- the matter is found upon which the error is ance with the statute and rule 7 the work of assigned. abstracting the record for use in this court In the body of his brief appellant shall prewill be reduced to the minimum, and will gen- sent his reasons in support of each error aserally relate only to matters of form.)

signed, with a concise statement of the prinThe abstract, when it consists of more than ciples of law applicable thereto with authorifive printed pages, must be followed by an ac-ties supporting the same, treating each assigncurate index of its contents, referring to folios ment relied upon separately, and such errors and pages. Witnesses shall be indexed by as are merely assigned and not supported in name, and exhibits by the numbers or char- the body of the brief by reasons or authorities acters 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, de- When there is no assignment of errors, as cline to explore the record coming up from required by this rule, counsel will not be the district court.

heard except at the request of the court; and When maps, surveys or other material ex

errors not assigned according to this rule will hibits are included in the record, which it is be disregarded. The court may, however, at impossible to duplicate in the abstract, the its option, notice an error not assigned. abstract shall state that fact, and the court

(For briefs under section 5630, see rule 17.) will then examine such exhibits in the original record.

Rule XV.2 [Preparation of Statement of (For abstracts in cases to be tried anew on the Case.) The statement of the case, in casappeal under section 5630, see rule 16.)

es to be tried anew on appeal, under the pro

visions of section 5630, Revised Codes, must Rule XIII. (Respondent's Additional Ab- conform as to its contents to the provisions stract.) If the respondent shall deem the abstract of the appellant, provided for in rule

2 Rules 15, 16, and 17 are applicable only to cases

to be tried anew on appeal under the provisions of 12, insufficient, he may prepare an amended l section 5630, Revised Codes.

« ZurückWeiter »