COURT RULES RULES OF PRACTICE OF THE SUPREME COURT OF RULE 1. Fees. Upon the filing of a record or any papers in an appeal or in an original proceeding in this court, the appellant or petitioner shall deposit with the clerk $10.00 to apply on fees; provided, that no fees shall be required in habeas corpus proceedings. RULE 2. Terms. General terms of the Supreme Court shall he held monthly at the State Capitol, commencing on the first Tuesday of each month, excepting the months of July and August. Special terms may be held at such times and places as may be designated upon ten days' prior notice thereof. RULE 3. Submission of Cases. A case shall be considered ready for submission upon the calendar whenever the record therein has been on file with the clerk for a period of at least fifteen days, before a general or special term. RULE 4. Calendar. On the tenth day prior to a general or special term, the clerk shall prepare a calendar of the causes to be heard during such term, which calendar shall state the title, calendar number, docket number, the names of the respective counsel, the court from which the appeal is taken, and the date set for the argument thereof. The clerk shall thereupon notify counsel, whose names appear upon such calendar, concerning the date of hearing their respective cases. RULE 5. Continuance. Cases appearing upon the proposed calendar may be continued for cause, only by order of court, upon motion or stipulation. RULE 6. Oral Argument (A) Time Allowed. Upon oral argument, the appellant shall be allowed, for his opening and closing argument, one hour, and the respondent shall be allowed forty-five minutes, unless upon written application, made and filed before the day of the argument, the time, for cause, shall be extended. Upon motions, the counsel will be limited to fifteen minutes on each side, unless otherwise directed by the court. day of submission, upon application in writing made, the court shall so order. (C) Submission Without Oral Argument. Whenever a cause on appeal is placed upon the calendar for oral argument, and, at the time of the call of such cause a party fails to appear, the cause, on his part, shall be submitted without oral argument. Either party, at any time, may submit the cause on appeal, on his part, without oral argument. RULE 7. Filing of Briefs. Upon appeal to the Supreme Court, the appellant shall fully prepare his brief and serve it upon the respondent, and file it with the clerk of the court from which the appeal is taken before or at the time the record of the case is transmitted to the Supreme Court, by the clerk of the district court, and it shall be trans. mitted with such record. Within fifteen days after the service of the appellant's brief, upon the respondent, as aforesaid, the respondent shall prepare his brief, and serve it upon appellant, and file it with the clerk of the Supreme Court. Failure of the appellant to comply with this rule will subject the appeal to dismissal, unless the Supreme Court for sufficient cause, should otherwise order. RULE 8. Briefs (A) Hоw Prepared. The briefs of the parties shall be prepared upon good white or yellow unglazed paper properly paged. If typewritten each sheet shall be 11 inches in length and 81⁄2 inches in width with marginal lines thereupon. Such sheet shall be legibly typed upon one side. The typed matter within marginal lines duly proportioned on each sheet, shall occupy not to exceed 91⁄2 inches in length and 51⁄2 inches in width. If printed, each sheet shall be 101⁄2 inches in length and seven inches in width. The printed page, with proportionate margins, shall not exceed eight inches in length and four inches in width. (B) Contents. The appellant shall set forth in the brief, viz.: 1. The pleadings necessary to understand the nature of the case. 2. The issues. 3. The nature of the appeal, (B) When Not Allowed. In actions upon contracts, or in equity, where the amount involved upon appeal does not exceed $200.00 and in appeals involving only questions or 5. A concise statement of the facts pointpractice, or taxation of costs, no oral argument will be permitted, unless prior to the ing out specifically the page and line in the 180 N.W. (vii) settled case, in verification of each statement | dence becomes necessary, this court, upon so made. 6. The ultimate facts set forth separately. These ultimate facts, as stated by the appellant, shall be set forth on a separate page and separately indexed. Specifications of errors may be assigned in groups. Upon these specifications, the appellant shall separately state his points, argument, and citations of authorities. The respondent, in his brief, following the order of the appellant, shall state separately upon such specifications, his points, argument and citations of authorities. Where the statement of facts is controverted, the respondent, likewise, shall make a concise statement of the facts. The respondent likewise shall prepare a statement of the ultimate facts, separately set forth and separately indexed. Reply and supplemental briefs may be filed by permission of the court when prepared in accordance with the foregoing rules. All briefs shall be fully RULE 9. Application for Original Writs or Orders. All applications for writs or orders of this court, in the exercise of its original jurisdiction, shall be made by filing seven copies of the moving papers, accompanied by a brief upon the law, including citations of authorities. RULE 10. Original Writs or Orders. Upon application for original writs or orders to show cause, the court, in its discretion, may issue an order to show cause, or may direct an alternative writ to be issued by the clerk returnable at a time deemed proper. RULE 11. Writs. All writs issued from or out of this court shall be signed by the clerk, sealed with the seal of the court, and attested upon the day issued. RULE 12. Proceedings in Exercise of Original Jurisdiction. In original causes, whether in response to an order to show cause, or an alternative writ of any kind, the respondent shall appear by (a) written motion to quash, (b) demurrer, or (c) answer and return. These may be submitted to the court with out waiver at one or different times, as may best suit the convenience of the court, and the parties, for purposes of expedition. Upon a hearing, the parties may present, in support of the issues, affidavits and counter affidavits. application made therefor, shall determine the method of taking, and the time for the return of, additional testimony, whether the same be, by additional evidence, by deposition, or by oral testimony taken before this court, or, by reference, either to a trial court, or some designated commissioner or referee. RULE 13. Affirmance or Dismissal Upon Default. The respondent may apply to the court for affirmance or dismissal of a cause, as the case may be, if the appellant shall fail or neglect to serve and file the record, or his brief, as required by law, or by these rules. However, for the default of the respondent, no reversal will be ordered unless the record presents reversible error. RULE 14. Opinions of Court to Parties. Whenever a decision in a case is filed and announced by the clerk, a copy of the written opinion, including the dissenting opinions, if any, on file, shall be mailed to the respective counsel of the parties. RULE 15. Rehearing. A petition for rehearing may be filed if accompanied by seven copies of such petition, at any time within fifteen days after the decision in the case is filed. In all cases, the remittitur shall be stayed until the expiration of the time for the filing of petitions for rehearing, or until the petition therefor shall be denied, unless this court shall otherwise order. RULE 16. Petitions for RehearingForm of. All petitions for rehearing must be legibly typewritten or printed, and must conform to the general rules concerning the preparation of briefs. A copy of the same shall be served upon the opposing counsel at the time of filing with the clerk. Such petitions must not be a restatement or reargument of matters contained in the brief, but must distinctly point out the error complained of in the decision rendered, the statutory provisions of law, or the controlling principles of law overlooked or not called to the attention of the court, upon the argument or in the briefs. RULE 17. Taxation of Costs. In all cases originating in this court the costs and disbursements will be taxed by the clerk of this court. In other cases the costs and disbursements of both courts (except the fees of the clerk of this court, which shall be taxed by him without notice) shall be taxed in the district court after the remittitur is there filed, and the amount as taxed shall be inserted in the judgment of the court below. In civil cases the remittitur will not be transmitted until the fees of the clerk of this court shall first have been paid. In all cases where parties are dissatisfied with any bill of costs taxed by the clerk of this court, costs will be informally retaxed at any time RULE 18. Execution for Costs. Executions signed by the clerk, sealed with the seal of this court, attested as of the day when the same was issued, may issue out of this court to enforce any judgment for costs made and entered in cases which originate in this court. Such executions may issue and be directed to the marshal, or to the sheriff of any county, and may be enforced in any county in the state in which a transcript for such judgment for costs is filed and docketed. If, for the determination of controverted facts, a further hearing and additional evi-on application, (180 N.W.) RULE 19. Record on Appeal (4) From Judgment. Upon appeal from a judgment the record must contain the judgment roll, as prescribed by statute, and such other orders or papers as have been made by order of court, a part thereof, including such order. The same shall be securely fastened together in chronological order and must be duly authenticated by the clerk of the district court. (B) From Orders. Upon appeal from an order, the original papers used by each party on the application therefor, the stenographer's minutes, if any, duly transcribed, and the evidence upon which such order is based, duly certified as correct by the trial judge, shall be filed, duly authenticated, and transmitted by the clerk of the district court. Whenever, for any purpose, copies of papers in the judgment roll or record are required, pursuant to order of the district judge, to be transmitted instead of the original, such copies must be plainly typewritten, double spaced, and on good paper with the pages thereof consecutively numbered. RULE 20. Perfection of Appeal and Return of Record. An appeal is deemed perfected, in civil cases, upon both the service and filing of a notice of appeal, with undertaking on appeal, when required, and in criminal cases, upon service and filing of a notice of appeal. The clerk of the district court shall cause the proper return to be made and the same, together with the statement of the case, if any, to be transmitted to and filed with the clerk of the Supreme Court, within fifteen days after the appeal is perfected, unless, by order of the trial court, made upon the application of any of the parties, such return shall be stayed for purposes of the appeal for an additional time, not exceeding forty-five days. RULE 21. Settlement of Case. The statement of the case in all civil actions and proceedings may be prepared and settled as provided by statute. In case of death, disqualification, removal or absence from the state of the trial judge, the statement of the case may be settled, signed, and certified by and before another district judge in the judicial district; otherwise, application may be made to the Supreme Court as provided by statute. RULE 22. Transcript in Civil CasesHow Prepared. The party desiring to appeal, or to review for any purpose, the proceedings of the trial court, shall procure from the official court reporter a transcript of the evidence and the proceedings had, only certified by him as a true and correct transcript of the original shorthand notes and testimony taken and proceedings had upon the trial of the action. Such transcript shall consist of five copies carefully and legibly typewritten upon plain white or yellow paper of good texture, so that annotations may be made thereupon, with pen and ink. The sheets, typewritten on one side, shall be 81⁄2 by 11 inches, in size, consecutively paged, and the lines numbered on the left hand margin thereof. Such typewritten page shall be double spaced, made with black or purple ribbon or carbon, containing not more than thirty nor less than twenty-five lines, with a margin on the left of not less than 11⁄2 inches. Such transcript shall be securely bound on one side through the covers and shall have a complete index stating therein where may be found the exhibits, aptly described, the examinations of each of the witnesses and the orders and proceedings of the trial court. RULE 23. Transcripts in Civil CasesTime of Preparation and Service. Such transcript shall be prepared by the official court stenographer within fifteen days after the same has been ordered and proper deposit made therefor, unless the trial court by or der, in writing, filed with the cause shall extend such time. The party desiring such transcript, shall pay to the official court reporter or, deposit with the clerk of the district court, at the time of making the order therefor, not less than 25% of the estimated cost thereof, as given by such reporter. In cases of dispute, the trial court shall regulate or otherwise designate the amount of such deposit so to be made. Such transcript shall be served upon the opposite party within the time provided by statute and the opposite party likewise, within the statutory time shall serve any amendment desired. Thereafter, the trial court, after due notice of the settlement of the proposed case shall thereupon settle the transcript according to the facts of the case, and certify that the same is a true and correct settled case, and statement of the evidence and proceedings had. RULE 24. Transcript and Case in Criminal Cases. In criminal cases, the party desiring to appeal, or, to review the proceedings of the trial court, shall procure and serve a transcript of the evidence for settlement in the same manner as hereinbefore prescribed in civil cases. He shall also prepare and cause to be served and settled, a statement of the case as prescribed by statute in criminal cases. RULE 25. Preparation and Transmission of the Record or Judgment Roll in Civil ord or judgment roll shall be prepared and transmitted to the Supreme Court as provided by statute. The provisions of this rule also apply to mandamus and other special proceedings so far as applicable. Cases. Upon appeals, in civil cases, the rec-and supporting affidavits, and the order of RULE 26. Preparation and Transmission of the Record or Judgment Roll in Criminal Cases. Upon appeal in criminal cases, the judgment roll or record shall be prepared and transmitted to the Supreme Court as provided by statute. RULE 27. Preparation of Record in Cases Triable De Novo. In all civil actions triable by the district court without a jury where the party appealing or desiring to review the proceeding, demands a trial de novo, in the Supreme Court, a statement of the case, shall be settled in the manner hereinbefore prescribed for civil actions. If the appellant desires a review of the entire case in the Supreme Court he must so specify. If he desires a review of any particular facts, the specifications must state the particular facts upon which a review is desired. If any material evidence has been excluded, of which the appellant complains, he must also specify distinctly and concisely the respects in which such evidence is material, without argument or citation of authorities. Such specifications shall be particularly made with reference to each and every portion of material evidence claimed to be so excluded. Upon the presentation of the statement of the case to the trial court, he shall review the specifications concerning the materiality of the evidence and, if deemed well taken, shall order such further proceedings to be had either upon new trial, or by means of taking additional testimony, so that the material evidence, deemed excluded improperly may be adduced. Otherwise, the trial court shall specifically review or overrule, by an order in writing and filed in the case, the specifications so made in that regard. Where upon appeal, it is made to appear that the trial court improperly excluded material evidence upon the issues, this court may direct a return or remand of the cause to the trial court for the purpose of taking additional testimony, as if upon a new trial, and thereafter, proceedings shall be taken after a re-determination of the cause by the trial court, the same as in any other cause upon appeal. In these rules the term, "trial court" has reference to the district judge before whom the cause was heard, or determined. RULE 28. Application for Writ of Habeas Corpus. When, upon application for a writ of habeas corpus, it is apparent that no necessity exists for its immediate issuance, and a district court or judge thereof has entertained an application for the writ, and, upon hearing, quashed it, this court will require all the papers, including the application and supporting affidavits, the return such lower court, to accompany the application made to this court. In emergency cases the above requirement may be waived. RULE 29. When State is a Party-Attorney General Served. In all appeal cases in which the state is respondent, and in which the Attorney General is required by law to represent the state, the notice of appeal and briefs shall be served upon the Attorney General, and in criminal cases or where a county is a party, the notice of appeal and briefs shall also be served upon the state's attorney of the proper county. RULE 30. Attorney's Certificate of Clerkship. It shall be the duty of attorneys in this state, with whom students shall commence a course of legal study, to file a certificate to that effect in the office of the clerk of the Supreme Court. Such certificate shall state the time when such legal study commenced and the proposed course of study to be pursued. Such period shall be deemed to commence from the time of such filing and shall be computed by the calendar year. RULE 31. Applications for Admission to Practice Law Upon Examination. All applications for admission to practice as attorneys and counselors at law, upon examination, shall be made as provided by law. (Section 790, C. L. 1913.) RULE 32. Examination of Applicants by the State Board of Bar Examiners. All applicants for admission to practice as attorneys or counselors at law, who do not seek to be admitted as attorneys upon motion, shall be examined by the State Board of Bar Examiners, concerning their legal and moral qualifications as may be made to appear from their respective applications and an examination conducted by such board. RULE 33. Admission to Practice Law After Examination. Applicants for admission to the bar upon examination may be admitted to practice as attorneys and counselors at law in all the courts of this state by the Supreme Court, either in regular or special session, upon the report of the State Board of Bar Examiners. RULE 34. Admission of Attorneys to Practice Upon Motion. Applications for ad mission to practice as a resident attorney of this state may be received pursuant to section 792, C. L. 1913. Such application shall be upon written motion made by a member of the bar of this court, and filed with the clerk; and with such motion shall be filed the applicant's certificate of admission to practice in the foreign state and his affidavit, which shall disclose the place or places where he has practiced law in such foreign state, for a period of more than three years, in the aggregate. He shall also give the name and postoffice address of one or more of the dis (180 N.W.) trict or circuit judges, who have presided during said time, in the court before which he has practiced. Where possible, he shall present the certificate of such judge showing the above facts in support of his application. The affidavit of the applicant shall also disclose whether any proceedings in disbarment or suspension of his license to practice are pending against him, or were pending at the time of his removal from the foreign jurisdiction, and, that he is still an attorney at law in good standing in such foreign state. Provided, however, that any member of the bar of another state, actually engaged in a cause or matter pending in this court, may appear in, or conduct said cause or matter while retaining his residence in another state. RULE 35. Disbarment. Whenever any written complaint is made and filed with the clerk of this court charging any member of the bar of this state with conduct warranting a disbarment or suspension as an attorney at law, the same shall thereupon be referred by the clerk to the. State Bar Board for investigation, and report to this court concern The applicant must also furnish the affidavit of at least two practicing attorneys of the foreign state who were fellow practition-ing further proceedings to be had. Disbar ment proceedings may also be instituted and prosecuted as otherwise provided by law. RULE 36. Cases may be Dismissed for Failure to Comply with Rules. A fallure to comply with any of the requirements contain ers with the applicant, stating that the applicant is of good moral character, and a proper person to be licensed to practice law. Such application shall thereupon be referred to the State Bar Board who shall investigate such application, and its sufficiency, including the moral qualifications of the ap-ed in these rules within the time or in the plicant. Upon the report of the State Bar manner therein provided shall constitute Board in regard thereto, motion for admission upon such application may be made at any regular or special term of this court. grounds for dismissal of the appeal, for an affirmance, or for the imposition of terms, as the case may demand. ORDER ADOPTING RULES OF PRACTICE It is ordered, that the above and forego-The reporter is directed to prepare a suitable ing rules of practice be and the same are hereby adopted as the rules of practice of the Supreme Court of North Dakota. Until abrogated or modified, said rules shall govern the practice of this court in connection with existing statutory provisions of law applicable. The clerk of this court is directed to spread these rules upon the minutes of this court. index for such rules and cause the same to be published in the Northwestern Reporter, the North Dakota Reports and in pamphlet form. It is further ordered, that these rules shall take effect and be in force from and after August 15th, 1920. |