CHAPTER 31-01 Witnesses, Their Qualifications, Rights, and Duties

31-01-01. Persons competent to testify as witnesses generally — Exception. [Repealed]

Superseded by N.D.R.Ev. 601.

31-01-02. Competency of husband or wife as witness — Communications made during marriage — Exceptions. [Repealed]

Superseded by N.D.R.Ev. 501, 504.

31-01-03. Competency of party or officers of corporate party as to transactions or conversations with decedent — Exceptions. [Repealed]

Superseded by N.D.R.Ev. 601.

31-01-04. When husband or wife may testify to transactions and conversations had with deceased spouse. [Repealed]

Superseded by N.D.R.Ev. 601.

31-01-05. When transactions or conversations with decedent may be testified to by party to action. [Repealed]

Superseded by N.D.R.Ev. 601.

31-01-06. Public officers cannot testify regarding confidential communications.

A person cannot be examined as a witness in the following cases:

  1. Superseded by N.D.R.Ev. 501, 502.
  2. Superseded by N.D.R.Ev. 501, 505.
  3. Superseded by N.D.R.Ev. 501, 503.
  4. A public officer cannot be examined as to communications made to the public officer in official confidence when the public interests would suffer by the disclosure.

Source:

C. Civ. P. 1877, § 499; R.C. 1895, § 5703; R.C. 1899, § 5703; R.C. 1905, § 7304; C.L. 1913, § 7923; R.C. 1943, § 31-0106; S.L. 1965, ch. 230, § 1.

Note.

Subsection 1 related to communications by an attorney; subsection 2 related to communications by a clergyman or priest; and subsection 3 related to communications by a physician or surgeon.

Notes to Decisions

Attorneys.

An attorney who was employed for the purpose of drawing certain conveyances was permitted to testify as to what was said and done at the time of their execution as bearing on issue of their being absolute or conditional. O'Neill v. Murray, 50 N.W. 619, 6 Dakota 107, 1888 Dakota LEXIS 69 (Dakota 1888).

The confidential communication by a client to an attorney is inadmissible, even though the relation has terminated. Fosston Mfg. Co. v. Lemke, 44 N.D. 343, 175 N.W. 723, 1919 N.D. LEXIS 221 (N.D. 1919).

The privilege arising from the relation of attorney and client is personal to the client and is waived where he does not assert the privilege. Weisser v. Preszler, 62 N.D. 75, 241 N.W. 505, 1932 N.D. LEXIS 153 (N.D. 1932).

It is not necessary, in order to render communications to an attorney privileged, that he should require or be paid a regular retainer or should charge or receive any fee for his service. Shong v. Farmers' & Merchants' State Bank, 70 N.W.2d 907, 1955 N.D. LEXIS 112 (N.D. 1955).

Communications made between attorney and client may be waived by the client’s executor or administrator. Shong v. Farmers' & Merchants' State Bank, 70 N.W.2d 907, 1955 N.D. LEXIS 112 (N.D. 1955).

Subsection 1 of this section applies to communications between attorney and client with reference to an unexecuted will, even though no actual employment results from such consultation and no retainer is paid. In re Estate of Graf, 119 N.W.2d 478, 1963 N.D. LEXIS 67 (N.D. 1963).

Subsection 1 of this section does not apply and communications to an attorney can be shown after the death of the client in litigation between parties all of whom claim under the client. In re Estate of Graf, 119 N.W.2d 478, 1963 N.D. LEXIS 67 (N.D. 1963).

Testimony of attorney for decedent regarding the drafting of lost deeds, advice given, and work done with regard to those deeds was admissible where there was no attempt on the part of decedent to keep the transactions confidential, and witnesses other than the attorney and his secretary were not necessary parties to the purpose or objective of the visit to the attorney’s office. Bolyea v. First Presbyterian Church, 196 N.W.2d 149, 1972 N.D. LEXIS 162 (N.D. 1972).

Burden of Proof.

When a party to an action seeks to exclude evidence on the ground that it is privileged, the burden is on such party to show the evidence is within the terms of the statute. Booren v. McWilliams, 26 N.D. 558, 145 N.W. 410, 1914 N.D. LEXIS 155 (N.D. 1914); Stormon v. Weiss, 65 N.W.2d 475, 1954 N.D. LEXIS 94 (N.D. 1954).

Communications to Nurse.

Communications to a nurse are not privileged unless made when she is acting as a physician’s assistant or agent, but communications of the patient to the nurse necessary to enable the physician to prescribe or act for the patient are privileged. Meyer v. Russell, 55 N.D. 546, 214 N.W. 857, 1926 N.D. LEXIS 103 (N.D. 1926).

Determination by Court.

The question of the privileged character of the testimony is for the court, taking into consideration all of the circumstances, and, if necessary, the opinion of the physician and the belief of the patient. Booren v. McWilliams, 26 N.D. 558, 145 N.W. 410, 1914 N.D. LEXIS 155 (N.D. 1914).

Physicians.

Where, in a criminal trial, a doctor was called by the prosecution to prove a certain conversation had with defendant and the state’s attorney, the doctor’s testimony was admissible, even though the conversation involved statements that the doctor had previously treated defendant and that defendant had a venereal disease. State v. Werner, 16 N.D. 83, 112 N.W. 60, 1907 N.D. LEXIS 26 (N.D. 1907).

The object of the statute is to protect against disclosure by a physician of the condition of a patient, particularly where the patient is afflicted with a disease which might bring reproach and criticism upon the patient if known. Booren v. McWilliams, 26 N.D. 558, 145 N.W. 410, 1914 N.D. LEXIS 155 (N.D. 1914).

In a prosecution for rape it was error to receive the testimony of a physician who examined the accused at the request of the sheriff that the accused had a venereal disease. State v. Moore, 52 N.D. 633, 204 N.W. 341, 1924 N.D. LEXIS 135 (N.D. 1924).

A plaintiff, by examining his physician as to the diagnosis and treatment of his injury, waived his privilege, so that defendant might call the physician and examine him as to all relevant matters with respect to plaintiff’s condition at the time of the examination. McDonnell v. Monteith, 59 N.D. 750, 231 N.W. 854, 1930 N.D. LEXIS 193 (N.D. 1930).

Where an attending physician is requested by a testator to witness his will, the testator waives the restrictions on the competency of the physician as a witness. Stormon v. Weiss, 65 N.W.2d 475, 1954 N.D. LEXIS 94 (N.D. 1954).

In action contesting the validity of a will, the trial court properly permitted the testator’s attending physician to give his opinion concerning the mental capacity of the testator; the objective of the statute securing the privilege is in no way thwarted by permitting those who stand in the place of, or represent, decedents to waive the physician-patient privilege and justice will be more apt to result from such waiver because it will aid in reaching the truth as to the existence of testamentary capacity. Lembke v. Unke, 171 N.W.2d 837, 1969 N.D. LEXIS 75 (N.D. 1969).

Plaintiff in bringing malpractice action waived doctor-patient privilege and such waiver applied to treatment for the ailment by nondefendant doctors subsequent to treatment by defendant. Sagmiller v. Carlsen, 219 N.W.2d 885, 1974 N.D. LEXIS 193 (N.D. 1974).

Public Officer.

The privilege to withhold the identity of persons who furnished information of violations of law to officers charged with the enforcement of the law is based primarily on the need for the furtherance and protection of the public interest in effective law enforcement. State v. Mertens, 268 N.W.2d 446, 1978 N.D. LEXIS 249 (N.D. 1978).

Many citizens will be encouraged to provide information on the commission of crimes to law enforcement officials if they are assured or if there is reasonable certainty that they will remain anonymous. State v. Mertens, 268 N.W.2d 446, 1978 N.D. LEXIS 249 (N.D. 1978).

If disclosure of informants were required in every instance, the sources of information on law violations would dry up. State v. Mertens, 268 N.W.2d 446, 1978 N.D. LEXIS 249 (N.D. 1978).

No hard-and-fast rule has been fashioned governing disclosure of the informer’s identity. The determination whether a disclosure is or is not justified requires balancing the public interest with the interest of the defendant, which takes into account the totality of the particular circumstances of each case and particularly such matters as the crime charged, the probable defenses, the possible significance of the informant’s testimony, and other relevant factors. State v. Mertens, 268 N.W.2d 446, 1978 N.D. LEXIS 249 (N.D. 1978).

If the disclosure of the informer’s identity or the substance of his communication will be relevant or helpful to the defendant in his defense or is essential to a fair determination of the charge, the privilege to withhold the identity of persons who furnished information of violations of law to officers charged with the enforcement of the law must give way. State v. Mertens, 268 N.W.2d 446, 1978 N.D. LEXIS 249 (N.D. 1978).

Collateral References.

Witnesses 197-217.

81 Am. Jur. 2d, Witnesses, §§ 508 et seq.

98 C.J.S. Witnesses, §§ 316, 317, 321-333, 335-341, 343, 347-353, 355, 359-362, 367, 368.

Right of one against whom testimony is offered to invoke privilege of communication between others, 2 A.L.R.2d 645.

Compromise: admissibility of testimony by attorney as to unperformed compromise agreement, 26 A.L.R.2d 858, 864.

Court’s power to determine, upon government’s claim of privilege, whether official information contains state secrets or other matters disclosure of which is against public interest, 32 A.L.R.2d 391.

Police records and reports, privilege of custodian, apart from statute or rule, from disclosure, in civil action, of official, 36 A.L.R.2d 1318.

Accountant and client, privilege against disclosure of matters arising out of transactions or relationship between, 38 A.L.R.2d 670.

Nurse or attendant, privilege of communications by or to, 47 A.L.R.2d 742.

Waiver by party of privilege as to communications with counsel by taking stand and testifying, 51 A.L.R.2d 521.

Sound recordings, admissibility in evidence as affected by privileged nature of communications, 58 A.L.R.2d 1024.

Right of physician, notwithstanding physician-patient privilege, to give expert testimony based on hypothetical question, 64 A.L.R.2d 1056.

Privilege as to communications to attorney in connection with drawing of will, 66 A.L.R.2d 1302.

Pretrial or other disclosure, production, or inspection, privilege or immunity as affecting statements of parties or witnesses as subject of, 73 A.L.R.2d 12, 84.

Persons other than client or attorney affected by, or included within, attorney-client privilege, 96 A.L.R.2d 125.

Death: who may waive privilege of confidential communication to physician by person since deceased, 97 A.L.R.2d 393.

Corporation’s right to assert attorney-client privilege, 98 A.L.R.2d 241; 26 A.L.R.5th 628; 27 A.L.R.5th 76.

Mental condition of patient treated for other condition, testimony as to communications or observations as to, 100 A.L.R.2d 648.

Contemplated tortious acts, applicability of attorney-client privilege with respect to, 2 A.L.R.3d 861.

Waiver of privilege as regards one physician as a waiver as to other physicians, 5 A.L.R.3d 1244.

Applicability in criminal proceedings of privilege as to communications between physician and patient, 7 A.L.R.3d 1458.

Several attorneys, attorney-client privilege as affected by communications between, 9 A.L.R.3d 1420.

Crime already committed, attorney-client privilege as affected by its assertion as to communications, or transmission of evidence, relating to, 16 A.L.R.3d 1029.

Disclosure of name, identity, address, occupation, or business of client as violation of attorney-client privilege, 16 A.L.R.3d 1047.

Discovery proceedings, commencing action involving physical condition of plaintiff or decedent as waiving physician-patient privilege as to, 21 A.L.R.3d 912.

Pretrial testimony or disclosure on discovery by party to personal injury action as to nature of injuries or treatment as waiver of physician-patient privilege, 25 A.L.R.3d 1401.

Bankruptcy trustee: power of trustee in bankruptcy to waive privilege of communications available to bankrupt, 31 A.L.R.3d 557.

Judge’s comments: propriety and prejudicial effect of comment or instruction by court with respect to party’s refusal to permit introduction of privileged testimony, 34 A.L.R.3d 775.

Pretrial discovery proceedings, assertion of privilege in, as precluding waiver of privilege at trial, 36 A.L.R.3d 1367.

Medical examinations, admissibility of physician’s testimony as to patient’s statements or declarations, other than res gestae, during, 37 A.L.R.3d 778.

Psychiatrist or psychologist and patient, privilege, in judicial or quasi-judicial proceedings, arising from relationship between, 44 A.L.R.3d 24.

Who is “clergyman” or the like entitled to assert privilege attaching to communications to clergymen or spiritual advisers, 49 A.L.R.3d 1205.

Social workers: communications to social workers as privileged, 50 A.L.R.3d 563.

Matters to which the privilege covering communications to clergyman or spiritual adviser extends, 71 A.L.R.3d 794.

Admissibility under state law of hospital record relating to intoxication or sobriety of patient, 80 A.L.R.3d 456.

Privilege as to communications between lay representative in judicial or administrative proceedings and client, 31 A.L.R.4th 1226.

Physician’s tort liability for unauthorized disclosure of confidential information about patient, 48 A.L.R.4th 668.

Insured-insurer communications as privileged, 55 A.L.R.4th 336.

Involuntary disclosure or surrender of will prior to testator’s death, 75 A.L.R.4th 1144.

Admissibility of hospital records under Federal Business Records Act (28 USCS sec. 1732(a)), 9 A.L.R. Fed. 457.

31-01-06.1. Counselors shall be immune from disclosing information given by pupils.

For the purpose of counseling in a school system, any elementary or secondary school counselor possessing a valid North Dakota guidance credential from the department of public instruction, and who has been duly appointed a counselor for a school system by its proper authority, shall be legally immune from disclosing any privileged or confidential communication made to such counselor in a counseling interview. Such communication shall be disclosed when requested by the counselee.

Source:

S.L. 1969, ch. 309, § 1.

31-01-06.2. Disclosure of news sources and information required only on court order.

No person shall be required in any proceeding or hearing to disclose any information or the source of any information procured or obtained while the person was engaged in gathering, writing, photographing, or editing news and was employed by or acting for any organization engaged in publishing or broadcasting news, unless directed by an order of a district court of this state which, after hearing, finds that the failure of disclosure of such evidence will cause a miscarriage of justice.

Source:

S.L. 1973, ch. 258, § 1.

Notes to Decisions

Alternative Sources of Information.

Finding that the only method by which the evidence can be obtained is from the news gatherer is not required as an absolute condition of disclosure, but district court may consider the availability of the evidence from other sources in determining whether or not a miscarriage of justice would occur if disclosure were not ordered. Grand Forks Herald v. District Court, 322 N.W.2d 850, 1982 N.D. LEXIS 368 (N.D. 1982).

Confidential Sources.

The application of this section is not limited to those instances in which the information sought has been obtained from a confidential source; however, confidentiality is a factor the district court may consider in determining whether or not the failure to require disclosure would result in a miscarriage of justice. Grand Forks Herald v. District Court, 322 N.W.2d 850, 1982 N.D. LEXIS 368 (N.D. 1982).

Disclosure Ordered.

District court did not abuse its discretion in requiring newspaper photographer to disclose his photographs, including those unpublished in the newspaper, of an automobile accident scene on the public streets to a party involved in civil lawsuits arising from the accident where: the lawsuits were not frivolous; the photographs were the only ones made of the accident scene and the party made an adequate showing that she exhausted other available means of securing the information sought; the information sought involved the point of impact of the accident, which was in issue in the lawsuits, and the photographs may have contained unique evidence involving such issue; requiring disclosure would not violate any confidentiality of the newspaper or persons appearing in the photographs; and, under the facts of the case, disclosure would not have a chilling effect on First Amendment rights. Grand Forks Herald v. District Court, 322 N.W.2d 850, 1982 N.D. LEXIS 368 (N.D. 1982).

Subpoena Quashed.

Trial court quashed a subpoena of a television reporter, finding that the information sought was procured or obtained while the reporter was employed by and acting for an organization engaged in broadcasting news, and the failure to disclose such evidence would not cause a miscarriage of justice. Thus, pursuant to N.D.C.C. § 31-01-06.2, the trial court did not abuse its discretion in quashing the subpoena. Moore v. State, 2006 ND 8, 711 N.W.2d 606, 2006 N.D. LEXIS 29 (N.D. 2006).

Collateral References.

81 Am. Jur. 2d, Witnesses, §§ 525 et seq.

Privilege of newsgatherer against disclosure of confidential sources or information, 99 A.L.R.3d 37.

31-01-06.3. Addiction counselor — Client privilege — Definitions.

As used in sections 31-01-06.3 through 31-01-06.6:

  1. “Client” means a person who consults or is examined or interviewed by a counselor.
  2. “Confidential communication” means a communication which is not intended to be disclosed to third parties, except persons present to further the interest of the client in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the counselor, including members of the client’s family.
  3. “Counselor” means an addiction counselor who has been licensed under chapter 43-45 or who is reasonably believed by the client so to be, while engaged in the diagnosis or treatment of a physical, mental, or emotional condition, including alcohol or any addiction.
  4. “Privilege” means the counselor-client privilege authorized under sections 31-01-06.3 through 31-01-06.6.

Source:

S.L. 1981, ch. 349, § 1; 1983, ch. 82, § 67; 1987, ch. 536, § 3.

31-01-06.4. General rule of privilege.

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the client’s physical, mental, or emotional condition, including alcohol or drug addiction, among the client, the client’s counselor, and persons who are participating in the diagnosis or treatment under the direction of the counselor, including members of the client’s family.

Source:

S.L. 1981, ch. 349, § 2.

Notes to Decisions

Waiver of Privilege.

Client’s failure to conceal his identity during treatment by using a pseudonym does not constitute a waiver of privilege of confidentiality. Heartview Found. v. Glaser, 361 N.W.2d 232, 1985 N.D. LEXIS 248 (N.D. 1985).

Collateral References.

Constitutionality, with respect to accused’s rights to information or confrontation, of statute according confidentiality to sex crime victim’s communications to sexual counselor, 43 A.L.R.4th 395.

31-01-06.5. Who may claim the privilege.

The privilege may be claimed by the client, the client’s guardian or conservator, or the personal representative of a deceased client. The person who was the counselor at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.

Source:

S.L. 1981, ch. 349, § 3.

31-01-06.6. Exceptions to the privilege.

  1. There is no privilege under sections 31-01-06.3 through 31-01-06.6 for communications relevant to an issue in proceedings to hospitalize the client for mental illness, including alcohol or drug addiction, if the counselor in the course of diagnosis or treatment has determined the client is in need of hospitalization.
  2. If the court orders an examination of the physical, mental, or emotional condition of a client, whether a party or a witness, communications made in the course thereof are not privileged under sections 31-01-06.3 through 31-01-06.6 with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.
  3. There is no privilege under sections 31-01-06.3 through 31-01-06.6 as to a communication relevant to an issue of the physical, mental, or emotional condition of the client in any proceeding in which the client relies on a condition as an element of the client’s claim or defense or, after the client’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.

Source:

S.L. 1981, ch. 349, § 4.

Collateral References.

Constitutionality, with respect to accused’s rights to information or confrontation, of statute according confidentiality to sex crime victim’s communications to sexual counselor, 43 A.L.R.4th 395.

31-01-07. Act constituting consent to disclosure of confidential communications. [Repealed]

Superseded by N.D.R.Ev. 510.

31-01-08. When conviction of perjury or subornation thereof disqualifies witness — Effect on innocent rights if received. [Repealed]

Repealed by S.L. 1973, ch. 116, § 41; 1975, ch. 106, § 673.

31-01-09. Privilege against self-incrimination — Grant of immunity.

No person may be compelled to be a witness against himself or herself in a criminal action. Notwithstanding any provision of law to the contrary, in any criminal proceedings before a court or grand jury or state’s attorney’s inquiry, if a person refuses to answer a question or produce evidence of any kind on the ground that the person may be incriminated thereby, and if the prosecuting attorney, in writing and with approval of the attorney general, requests the court to order that person to answer the question or produce the evidence, the court after notice to the witness and hearing may so order, and that person shall comply with the order. In the case of a state’s attorney’s inquiry, such application must be made to the district court. No testimony or other information compelled under the order, or any information directly or indirectly derived from the testimony, may be used against the witness in any criminal proceeding, except a prosecution for perjury, giving a false statement, or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order.

Source:

C. Crim. P. 1877, § 13; R.C. 1895, § 7751; R.C. 1899, § 7751; R.C. 1905, § 9559; C.L. 1913, § 10395; R.C. 1943, § 31-0109; S.L. 1967, ch. 265, § 1; 1975, ch. 106, § 343; 1987, ch. 398, § 1.

Cross-References.

Defendant witness in own behalf, see N.D.C.C. § 29-21-11.

Privilege against self-incrimination, see N.D. Const. Art. I, § 12.

Notes to Decisions

In General.

The state is not required to grant immunity to defense witnesses and, generally, a defendant cannot compel the state to grant immunity. State v. Schroeder, 485 N.W.2d 795, 1992 N.D. LEXIS 111 (N.D. 1992).

Approval of Attorney General.

The direction that “application must be made to the district court” does not displace the prior direction in this section for the attorney general’s approval, but specifies that a request for immunity in a state’s attorney’s inquiry must be made to the district court that authorized the inquiry, rather than to another court. Grajedas by & Through Takes the Horse v. Holum (In re Grajedas), 515 N.W.2d 444, 1994 N.D. LEXIS 93 (N.D. 1994).

Constitutional Considerations.

When the state does not grant immunity to a defense witness, it does not violate the defendant’s Sixth Amendment rights. State v. Schroeder, 485 N.W.2d 795, 1992 N.D. LEXIS 111 (N.D. 1992).

Defense Witnesses.

Neither the Sixth Amendment to the federal constitution nor article I, section 12 of the state constitution requires the state to grant immunity to defense witnesses in a criminal prosecution. State v. Dachtler, 318 N.W.2d 769, 1982 N.D. LEXIS 253 (N.D. 1982).

Prosecutor’s refusal to grant immunity to defense witness or to drop the charges against her did not violate defendant’s right to a fair trial or to call witnesses on his own behalf where the prosecutor made no attempt to interfere with or discourage the witness from testifying; neither the sixth amendment of the federal constitution nor article I, section 12 of the state constitution requires the state to grant immunity to defense witnesses. State v. Perbix, 349 N.W.2d 403, 1984 N.D. LEXIS 317 (N.D. 1984).

Field Sobriety Tests.

Miranda warnings are not required to be given to drunken driving suspects before administering field sobriety tests consisting of having the suspect walk heel to toe on a line, putting his finger to his nose, standing on one leg, and having his eyes observed after shining a flashlight in them; such tests are physical and real evidence and do not activate the protections, including the right against self-incrimination, afforded by the fifth amendment. City of Wahpeton v. Skoog, 300 N.W.2d 243, 1980 N.D. LEXIS 340 (N.D. 1980).

How Claim Made.

The privilege against self-incrimination must be claimed in person under the sanctity of oath and with sufficient definiteness to render the claim clear to the court. State v. McKay, 54 N.D. 801, 211 N.W. 435, 1926 N.D. LEXIS 85 (N.D. 1926).

Jurisdiction.

The district court could not properly grant a prosecutor’s application for immunity without the attorney general’s approval, and because it did not grant sufficient immunity, the court exceeded its jurisdiction by ordering witnesses to incriminate themselves. Grajedas by & Through Takes the Horse v. Holum (In re Grajedas), 515 N.W.2d 444, 1994 N.D. LEXIS 93 (N.D. 1994).

Standing.

In a case involving assault and drug offenses, defendant was unable to challenge a decision to grant a witness use immunity because the ability to challenge a grant of immunity is personal, like the ability to assert the privilege against self-incrimination, and therefore a defendant does not have standing to challenge a grant of immunity to another person. State v. Falconer, 2007 ND 89, 732 N.W.2d 703, 2007 N.D. LEXIS 84 (N.D. 2007).

State’s Attorney’s Inquiry.

Defendant who was subpoenaed to appear at state’s attorney’s inquiry relating to a murder was not constitutionally required to be given the full Miranda warnings, and although defendant’s testimony furnished probable cause for issuance of a search warrant, there was no violation of his privilege against self-incrimination. State v. Iverson, 225 N.W.2d 48, 1974 N.D. LEXIS 137 (N.D. 1974).

Collateral References.

Witnesses 297-310.

81 Am. Jur. 2d, Witnesses, §§ 78-148.

98 C.J.S. Witnesses, §§ 522, 524-529, 531-558.

Conviction in another jurisdiction as disqualifying witness, 2 A.L.R.2d 579.

Waiver of privilege against self-incrimination in exchange for immunity from prosecution as barring reassertion of privilege on account of prosecution in another jurisdiction, 2 A.L.R.2d 631.

Subsequent civil case: right to show in civil case that party or witness refused to testify on same matter under claim of privilege in previous criminal proceeding, 2 A.L.R.2d 1297.

Use in subsequent prosecution of self-incriminating testimony given without invoking privilege, 5 A.L.R.2d 1404.

Governmental requirement of oath of allegiance or loyalty as requiring one to be a witness against himself, 18 A.L.R.2d 268.

Clothing: pretrial requirement that suspect or accused wear or try on particular apparel as violating constitutional privilege against self-incrimination, 18 A.L.R.2d 796.

Right of witness to refuse to answer, on the ground of self-incrimination, as to membership in or connection with party, society, or similar organization or group, 19 A.L.R.2d 388.

Sexual psychopaths, statutes relating to, as violating privilege against self-incrimination, 24 A.L.R.2d 350, 376.

Physical examination or test, requiring submission to, as violation of privilege against self-incrimination, 25 A.L.R.2d 1407, 1409.

Fingerprint, palm print, or bare footprint evidence as violating privilege against self-incrimination, 28 A.L.R.2d 1115, 1136.

Psychiatric examination of accused to determine mental condition, privilege as violated by statute providing for, 32 A.L.R.2d 434, 444.

Grand jury, right of witness to claim privilege on subsequent criminal trial after testifying to same matter before, 36 A.L.R.2d 1403.

Grand jury, privilege against self-incrimination as to testimony before, 38 A.L.R.2d 225.

Removal or discharge of public officer or employee because of assertion of immunity, constitutional privilege against self-incrimination as violated by, 44 A.L.R.2d 789, 790.

Blood grouping tests, 46 A.L.R.2d 1000.

Sufficiency of witness’ claim of privilege against self-incrimination, 51 A.L.R.2d 1178.

Adequacy of immunity offered as condition of denial of privilege against self-incrimination, 53 A.L.R.2d 1030, 29 A.L.R.5th 1.

Severance where codefendant has incriminated himself, 54 A.L.R.2d 830.

Admissibility of sound recordings in evidence, 58 A.L.R.2d 1024.

Waiver of privilege, testifying in civil proceeding as, 72 A.L.R.2d 830.

Fish or game: infringement of right against self-incrimination by statute or regulation making possession of fish or game, or of specified hunting or fishing equipment, prima facie evidence of violation, 81 A.L.R.2d 1093, 1096.

Plea of guilty or conviction as resulting in loss of privilege against self-incrimination as to crime in question, 9 A.L.R.3d 990.

Voice: requiring suspect or defendant in criminal case to demonstrate voice for purposes of identification, 24 A.L.R.3d 1261.

Production of documents: privilege against self-incrimination as ground for refusal to produce noncorporate documents in possession of person asserting privilege but owned by another, 37 A.L.R.3d 1373.

Handwriting exemplar, propriety of requiring accused to give, 43 A.L.R.3d 653.

Prior statements or admissions, witness’ refusal to testify on ground of self-incrimination as justifying reception of evidence of, 43 A.L.R.3d 1413.

Production of corporate books or records, right of member, officer, agent, or director of private corporation or unincorporated association to assert personal privilege against self-incrimination with respect to, 52 A.L.R.3d 636.

Disbarment proceeding, use of testimony given by attorney in criminal proceeding under grant of immunity, 62 A.L.R.3d 1145.

Right of defendant in criminal proceeding to have immunity from prosecution granted to defense witness, 4 A.L.R.4th 617.

Prosecutor’s power to grant prosecution witness immunity from prosecution, 4 A.L.R.4th 1221.

Propriety and prejudicial effect of prosecution’s calling as witness, to extract claim of self-incrimination privilege, one involved in offense charged against accused, 19 A.L.R.4th 368.

Admissibility in criminal case of evidence that accused refused to take test of intoxication, 26 A.L.R.4th 1112.

Admissibility and weight of blood-grouping tests in disputed paternity cases, 43 A.L.R.4th 579.

Admissibility of bare footprint evidence, 45 A.L.R.4th 1178.

Use of plea bargain or grant of immunity as improper vouching for credibility of witness — state cases, 58 A.L.R.4th 1229.

Availability of sole shareholder’s Fifth Amendment privilege against self-incrimination to resist production of corporation’s books and records—modern status, 87 A.L.R. Fed. 177.

Propriety, under state constitutional provisions, of granting use or transactional immunity for compelled incriminating testimony — post-Kastigar cases, 29 A.L.R.5th 1.

Admissibility of evidence of voice identification of defendant as affected by allegedly suggestive voice lineup procedures, 55 A.L.R.5th 423.

Law Reviews.

The Admissibility of Lie Detector Evidence, 51 N.D. L. Rev. 679 (1975).

The Constitutional Right to Defense Witness Immunity, 57 N.D. L. Rev. 188 (1975).

31-01-10. Presiding judge or any juror may be called as a witness. [Repealed]

Superseded by N.D.R.Ev. 605, 606.

31-01-11. Interpreter for witness — When required — How subpoenaed — Oath or affirmation. [Repealed]

Superseded by N.D.R.Crim.P., Rule 28.

31-01-12. Fees for interpreters. [Repealed]

Superseded by N.D.R.Civ.P., Rule 43.

31-01-13. Places where persons may be compelled to attend as witnesses in civil matters. [Repealed]

Superseded by N.D.R.Civ.P. 45(d)(3), now 45(c)(3).

31-01-14. Places where persons may be compelled to attend as witnesses in criminal matters.

No person is obliged to attend as a witness in a criminal action or proceeding in this state before a court or magistrate outside of the county in which the person resides or is served with the subpoena, unless the committing magistrate before whom the defendant is brought, or the judge of the court in which the offense is triable, or a judge of the district court, or a judge of the supreme court, upon an affidavit of the state’s attorney or prosecutor, or of the defendant, or the defendant’s counsel, stating that the affiant believes the evidence of the witness is material, and the witness’s attendance at the examination or trial necessary, shall endorse upon the subpoena an order for the attendance of the witness.

Source:

C. Crim. P. 1877, § 510; R.C. 1895, § 8369; S.L. 1899, ch. 175, § 1; R.C. 1899, § 8369; R.C. 1905, § 10178; C.L. 1913, § 11034; R.C. 1943, § 31-0114.

Cross-References.

Subpoenas in criminal actions, see N.D.R.Crim.P. 17.

Transfer of criminal actions, see N.D.R.Crim.P. 21.

Witness compelled to attend criminal prosecution in another state, see N.D.C.C. § 31-03-25.

Collateral References.

Witnesses 6.

81 Am. Jur. 2d, Witnesses, §§ 1-49.

97 C.J.S. Witnesses, §§ 14, 16, 18, 19.

Uniform Act to Secure Attendance of Witnesses from without a 44 A.L.R.2d 732.

Accused’s right to interview witness held in public custody, 14 A.L.R.3d 652.

Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of subpoena duces tecum, 7 A.L.R.4th 836.

Sufficiency of evidence to support or require finding that out-of-state witness in criminal case is “material witness” justifying certificate to secure attendance under Uniform Act to Secure the Attendance of Witnesses from 12 A.L.R.4th 742.

Sufficiency of evidence to support or require finding that in-state witness in criminal case is “material and necessary” justifying issuance of summons directing attendance of witness under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, 12 A.L.R.4th 771.

Court’s witnesses (other than expert) in state criminal prosecution, 16 A.L.R.4th 352.

Calling and interrogation of witnesses by court under Rule 614 of the Federal Rules of Evidence, 53 A.L.R. Fed. 498.

31-01-15. Witness exempt from suit out of county.

A person shall not be liable to be sued in a county in which that person does not reside by being served with a summons in such county while going, returning, or attending as a witness in obedience to a subpoena.

Source:

C. Civ. P. 1877, § 460; R.C. 1895, § 5662; R.C. 1899, § 5662; R.C. 1905, § 7262; C.L. 1913, § 7880; R.C. 1943, § 31-0115.

Derivation:

Harston’s (Cal.) Practice, 2067.

Cross-References.

Witness passing through state to testify in other state, see N.D.C.C. § 31-03-31.

Notes to Decisions

Common-Law Rule Extended.

A nonresident of the county or state is exempt from the service of all forms of civil process during his attendance before a judicial tribunal and for the time reasonably required in going to or returning from place of trial. Hicks v. Besuchet, 7 N.D. 429, 75 N.W. 793, 1898 N.D. LEXIS 88 (N.D. 1898).

Collateral References.

Other than strictly judicial proceedings, immunity from service of process of nonresident witness appearing in, 35 A.L.R.2d 1353.

Relationship: immunity from service of process as affected by relationship between subject matter of litigation in which process was issued, and litigation which nonresident served was attending, 84 A.L.R.2d 421.

31-01-16. Compensation and mileage and travel expense of witness.

A witness in a civil or criminal case is entitled to receive:

  1. A sum of twenty-five dollars for each day necessarily in attendance before the district court or before any other board or tribunal, except municipal court.
  2. A sum for mileage and travel expense reimbursement equal to the reimbursement rates provided for state employees in sections 44-08-04 and 54-06-09.

In all criminal cases in district court, the attorney general shall pay prosecution witness fees and expenses, in an amount not to exceed twenty-five thousand dollars per county per biennium, and the commission on legal counsel for indigents shall pay witness fees and expenses for witnesses in those cases in which counsel has been provided by the commission. Prisoners may not be compensated as witnesses under this section.

Source:

Pol. C. 1877, ch. 39, § 25; R.C. 1895, § 2097; R.C. 1899, § 2097; S.L. 1905, ch. 88, § 1; R.C. 1905, § 2615; C.L. 1913, § 3535; R.C. 1943, § 31-0116; S.L. 1951, ch. 214, § 1; 1957 Supp., § 31-0116; S.L. 1959, ch. 265, § 1; 1973, ch. 259, § 1; 1975, ch. 291, § 1; 1981, ch. 320, § 77; 1987, ch. 74, § 2; 1987, ch. 399, § 1; 1989, ch. 388, § 4; 1991, ch. 326, § 130; 1993, ch. 335, § 1; 1995, ch. 54, § 21; 2007, ch. 119, § 17; 2019, ch. 28, § 4, effective July 1, 2019.

Cross-References.

Administrative Agencies Practice Act, witness fees and mileage, see N.D.C.C. § 28-32-33.

Another state, witnesses summoned to or from, see N.D.C.C. §§ 31-03-27, 31-03-29.

Execution, witness fees in proceedings supplementary to, see N.D.C.C. § 28-25-15.

Expert witness fees, see N.D.C.C. § 28-26-06.

State’s right to require services of any person within its limits as a witness either with or without compensation, see N.D.C.C. § 54-01-19.

Taxation of witness fees as costs, see N.D.C.C. § 28-26-06.

Undertaking, fees for witness confined for inability to furnish, see N.D.C.C. § 31-03-24.

Notes to Decisions

Attorney As Witness.

An attorney appearing in a case as counsel for one of the parties is not entitled to witness fees upon being called as a witness. Wilkins v. National Union Fire Ins. Co., 48 N.D. 1295, 189 N.W. 317, 1922 N.D. LEXIS 177 (N.D. 1922).

Called to Testify in Number of Cases.

A witness called to testify in a number of cases at the same term is entitled to receive in a particular case the fee for only the number of days he was actually in attendance before the court for the purpose of testifying in that case. Wilkins v. National Union Fire Ins. Co., 48 N.D. 1295, 189 N.W. 317, 1922 N.D. LEXIS 177 (N.D. 1922).

Days Witness Fees May Be Taxed.

The intent of the legislature in using the words “for each day’s attendance” in this section prior to its amendment seems to have been to allow witness fees to be taxed only for days of attendance at trial, while testifying, waiting to testify, or waiting to give rebuttal testimony. United Dev. Corp. v. State Highway Dep't, 133 N.W.2d 439, 1965 N.D. LEXIS 137 (N.D. 1965).

Discretion of Trial Court.

Allowance of disbursements under the statutes lies within the discretion of the trial court, which is in a better position to determine the reasonableness and necessity of the disbursements sought by the prevailing party, and the trial court’s decision will be overturned only if an abuse of discretion is shown. Richter v. Jones, 378 N.W.2d 209, 1985 N.D. LEXIS 439 (N.D. 1985).

Maximum Number of Witnesses.

No party should be permitted to call an unlimited number of witnesses and then charge his opponent with the expense. The number of witnesses allowed to prove any one fact must be left to the sound discretion of the trial court. United Dev. Corp. v. State Highway Dep't, 133 N.W.2d 439, 1965 N.D. LEXIS 137 (N.D. 1965).

Mileage Fees.

The statute does not take into account the boundaries of judicial districts, therefore all actual mileage within the state may be taxed. Wilkins v. National Union Fire Ins. Co., 48 N.D. 1295, 189 N.W. 317, 1922 N.D. LEXIS 177 (N.D. 1922).

Parties Not Entitled to Fees.

A party to an action cannot recover fees for his attendance and mileage as a witness therein in his own behalf. Gunsch v. Gunsch, 67 N.W.2d 311, 1954 N.D. LEXIS 115 (N.D. 1954).

Per Diem Fees.

A witness is not entitled to the per diem fee for time spent in going to and returning from the place of trial. Tritchler v. Smith, 57 N.D. 105, 220 N.W. 903, 1928 N.D. LEXIS 101 (N.D. 1928).

Travel Expense.

N.D.C.C. §§ 28-26-06, 54-06-09 and this section do not limit allowable disbursements for travel expense to travel within this state. Richter v. Jones, 378 N.W.2d 209, 1985 N.D. LEXIS 439 (N.D. 1985).

Voluntary Witnesses.

The right to have witness fees taxed does not depend on whether the witness was served with a subpoena, and fees for witnesses who attend voluntarily and testify without compulsion are entitled to be taxed as costs. United Dev. Corp. v. State Highway Dep't, 133 N.W.2d 439, 1965 N.D. LEXIS 137 (N.D. 1965).

Witness Not Called Entitled to Fees.

Where witnesses have been subpoenaed in good faith and attend at the trial, a dismissal at the close of plaintiff’s case, making it unnecessary for the defendant to call the witnesses, does not deprive him of taxing as costs the allowance for their fees and mileage. Thompson v. Hannah Farmers Coop. Elevator Co., 79 N.W.2d 31, 1956 N.D. LEXIS 148 (N.D. 1956).

Collateral References.

Witnesses 23-34.

81 Am. Jur. 2d, Witnesses, §§ 66 et seq.

98 C.J.S. Witnesses, §§ 35-48.

Uniform Act to secure attendance of witnesses from without a state in criminal proceedings, 44 A.L.R.2d 732.

Right of witness detained in custody for future appearance to fees for such detention, 50 A.L.R.2d 1439.

Corporate litigant, allowance, as taxable costs, of witness fees and mileage of stockholders, directors, officers, and employees of, 57 A.L.R.2d 1243.

Allowance of mileage or witness fees with respect to witnesses who were not called to testify or not permitted to do so when called, 22 A.L.R.3d 675.

Contingent fee informant testimony in state prosecutions, 57 A.L.R.4th 643.

31-01-16.1. Witness fees and expenses of municipal police officers.

Police officers of municipalities in this state shall be entitled to and be paid the witness fees and expenses allowed by law for other witnesses, when such officers are off duty and are subpoenaed to testify in actions in which a plea of guilty was not entered. Police officers of municipalities in this state, appearing as witnesses while on duty, shall be compensated by their employer at the regular rate for their position.

Source:

S.L. 1961, ch. 230, § 1; 1975, ch. 291, § 2.

31-01-16.2. Compensation of municipal court witnesses.

A witness in municipal court is entitled to receive compensation for time necessarily spent in municipal court. The governing body of the city shall establish the amount of compensation, but in no instance may compensation be more than twenty-five dollars, or less than five dollars, for each day necessarily spent in municipal court.

Source:

S.L. 1975, ch. 291, § 3; 1983, ch. 370, § 1; 1989, ch. 407, § 1.

31-01-17. Duplicate witness fees not permissible.

A witness who is subpoenaed in two or more cases by the same party shall be entitled to one compensation only from such party for the same day’s attendance or travel.

Source:

S.L. 1890, ch. 194, § 1; R.C. 1895, § 2098; R.C. 1899, § 2098; R.C. 1905, § 2616; C.L. 1913, § 3536; R.C. 1943, § 31-0117.

31-01-18. Expenses of witness paid by city or state upon court order in criminal or municipal court action.

When a person, as a witness in a criminal or municipal court action, appears before a magistrate, grand jury, or court, upon a subpoena or in pursuance of an undertaking and it appears that the person:

  1. Has come from a place outside the county; or
  2. Is poor and unable to pay the expenses of such attendance,

the court, if the attendance of the witness is upon a trial, by order upon its minutes, or in any other case, the judge, by a written order, may direct the state in district court cases or the city in municipal court cases to pay the witness a reasonable sum to be specified in the order for the necessary expenses of the witness’s attendance. Upon the production of the order or a certified copy thereof, the state or city, to whichever entity the order is directed, must pay the witness the sum specified. In district court cases, the attorney general shall pay prosecution witness expenses and the supreme court shall pay other witness expenses.

Source:

C. Crim. P. 1877, §§ 508, 509; R.C. 1895, §§ 8367, 8368; R.C. 1899, §§ 8367, 8368; R.C. 1905, §§ 10176, 10177; C.L. 1913, §§ 11032, 11033; R.C. 1943, § 31-0118; S.L. 1981, ch. 320, § 78; 1987, ch. 393, § 2; 1989, ch. 388, § 5; 1991, ch. 326, § 131.

31-01-19. Witness for indigent defendants subpoenaed and paid by city, county, or state under court order in criminal or municipal court action.

If it appears to the court before which a criminal action or municipal ordinance violation is about to be tried that the defendant is unable to pay the witnesses to appear on the defendant’s behalf, such court shall make an order that such witnesses as may be deemed reasonable, naming them, be subpoenaed to attend at such trial at the expense of the city, the county, or the state, whichever is liable to pay the costs of the prosecution of such action, and such witnesses must be paid accordingly.

Source:

R.C. 1895, § 8408; R.C. 1899, § 8408; R.C. 1905, § 10217; C.L. 1913, § 11073; R.C. 1943, § 31-0119; S.L. 1981, ch. 320, § 79; 1987, ch. 393, § 3.

Notes to Decisions

Change of Venue.

Additional expense necessarily incurred by reason of a change of venue is not a matter that will warrant the supreme court in holding that an order of transfer is an abuse of discretion. Murphy v. District Court of Eighth Judicial Dist., 14 N.D. 542, 105 N.W. 728, 1905 N.D. LEXIS 87 (N.D. 1905); Zinn v. District Court, 17 N.D. 135, 114 N.W. 472, 1908 N.D. LEXIS 2 (N.D. 1908).

No Obvious Error.

Indigent defendant’s argument that he was not provided adequate financial resources to retain necessary experts for an effective defense was not preserved for appeal, and the court did not find obvious error, pursuant to N.D.R.Crim.P. 52(b), because the defendant’s experts were not disproportionately outnumbered by the State’s experts. State v. Gibbs, 2009 ND 44, 763 N.W.2d 430, 2009 N.D. LEXIS 64 (N.D. 2009).

31-01-20. Advance payment of fees — Return of service of subpoena to state demand and nonpayment. [Repealed]

Superseded by N.D.R.Civ.P. 45(c)(3), now 45(b).

31-01-21. Fees may be demanded daily by witness. [Repealed]

Superseded by N.D.R.Civ.P. 45(c)(3), now 45(b).

31-01-22. Oath of witness. [Repealed]

Superseded by N.D.R.Civ.P. 43(d).

CHAPTER 31-02 Examination of Adverse Parties [Repealed]

[Superseded by North Dakota Rules of Civil Procedure]

31-02-01. Action for discovery abolished — Provisions of chapter exclusive. [Repealed]

Superseded by N.D.R.Civ.P. 27(c).

31-02-02. Cross-examination of adverse party on trial of civil matter — Conclusiveness of testimony. [Repealed]

Superseded by N.D.R.Civ.P. 43(b).

31-02-03. Examination of adverse party before trial — Notice — Reference — Compelling attendance. [Repealed]

Superseded by N.D.R.Civ.P. 26(a), now Rules 30(a), 31(a).

31-02-04. Taking and filing of testimony of examination before trial required — Readable in evidence by whom. [Repealed]

Superseded by N.D.R.Civ.P. 26(d), now Rules 32(a), 32(c), and Rule 26(f).

31-02-05. Refusal to testify punishable as contempt and pleading may be stricken. [Repealed]

Superseded by N.D.R.Civ.P. 37(b), (d).

31-02-06. Party may be examined on own behalf. [Repealed]

Superseded by N.D.R.Civ.P. 26(a), 27(a), 43(b), now Rules 30(a), 31(a), 27(a), 43(b).

CHAPTER 31-03 Means of Compelling Attendance of Witnesses

31-03-01. Subpoena defined.

The process by which the attendance of a witness is required is a subpoena.

Source:

C. Crim. P. 1877, § 499; R.C. 1895, § 8358; R.C. 1899, § 8358; R.C. 1905, § 10167; C.L. 1913, § 11023; R.C. 1943, § 31-0301.

31-03-02. Requisites of subpoenas and subpoenas duces tecum. [Repealed]

Superseded by N.D.R.Civ.P. 45(a)(b).

31-03-03. Form for subpoena duces tecum. [Repealed]

Superseded by N.D.R.Civ.P. 45(b).

31-03-04. Form of subpoena in criminal actions. [Repealed]

Superseded by N.D.R.Crim.P. 17, 58.

31-03-05. Who to issue subpoenas. [Repealed]

Superseded by N.D.R.Civ.P. 45(a).

31-03-06. Issuance of subpoenas by persons authorized to take depositions. [Repealed]

Superseded by N.D.R.Civ.P. 45(d).

31-03-07. Issuance of subpoenas by magistrate in criminal proceedings. [Repealed]

Superseded by N.D.R.Crim.P. 17.

31-03-08. Issuance of subpoena by state’s attorneys. [Repealed]

Superseded by N.D.R.Crim.P. 17.

31-03-09. Court clerks required to issue blank subpoenas for defendants. [Repealed]

Superseded by N.D.R.Crim.P. 17.

31-03-10. Who may make service of subpoena. [Repealed]

Superseded by N.D.R.Civ.P. 45(c)(1), now 45(b)(2).

31-03-11. Methods of service of subpoena — Exception. [Repealed]

Superseded by N.D.R.Civ.P. 45(c)(1), now 45(b)(2).

31-03-12. Service of subpoena by mail, telegraph, or telephone. [Repealed]

Superseded by N.D.R.Civ.P. 45(c)(2), now 45(b).

31-03-13. Service of subpoenas — Proof — Peace officers required to make. [Repealed]

Superseded by N.D.R.Crim.P. 17.

31-03-14. Contempt and manner of punishment for failure to obey subpoena, to be sworn, or to testify. [Repealed]

Superseded by N.D.R.Civ.P. 45(f), now 45(e).

31-03-15. Civil penalty for failure to obey subpoena when called for defendant in criminal action.

A witness disobeying a subpoena issued on the part of the defendant in a criminal action, unless the witness shows good cause for the witness’s nonattendance, is liable to the defendant in the sum of fifty dollars, which may be recovered in a civil action.

Source:

C. Crim. P. 1877, § 512; R.C. 1895, § 8371; R.C. 1899, § 8371; R.C. 1905, § 10180; C.L. 1913, § 11036; R.C. 1943, § 31-0315.

Collateral References.

Witnesses 22.

97 C.J.S. Witnesses, §§ 62-64.

Tort or statutory liability for failure or refusal of witness to give testimony, 61 A.L.R.3d 1297.

31-03-16. Prisoners may be ordered to appear as witnesses — Depositions.

Any court, by order, may require an officer having the custody of any person confined in any prison in this state to produce such person before it for oral examination in the county where the person is imprisoned. In all other cases, except as otherwise provided in section 31-03-18, such person must be examined by deposition.

Source:

C. Civ. P. 1877, § 458; R.C. 1895, § 5660; R.C. 1899, § 5660; R.C. 1905, § 7260; C.L. 1913, § 7878; R.C. 1943, § 31-0316.

Derivation:

Harston’s (Cal.) Practice, 1879, 1995.

Collateral References.

81 Am. Jur. 2d, Witnesses, § 5.

Accused’s right to interview witness held in public custody, 14 A.L.R.3d 652.

31-03-17. Prisoner in custody of officer while deposition is taken — Officer to provide facilities for taking deposition.

While a prisoner’s deposition is being taken, the prisoner shall remain in the custody of the officer having the prisoner in charge and such officer shall provide reasonable facilities for the taking of the deposition.

Source:

C. Civ. P. 1877, § 459; R.C. 1895, § 5661; R.C. 1899, § 5661; R.C. 1905, § 7261; C.L. 1913, § 7879; R.C. 1943, § 31-0317.

31-03-18. Attendance of prisoners as witnesses for state in criminal actions — How effected.

When the testimony of a witness for the state is required in a criminal action, before a court of record of this state, and such witness is confined in the penitentiary or in a county jail, an order for the witness’s temporary removal from the penitentiary or such jail, and for the witness’s production before such court, may be made by the court in which the action is pending or by the judge authorized by law to preside at the trial of such action. If the penitentiary or such jail is not located in the county in which the application is made, such order shall be made only upon the affidavit of the state’s attorney or some other person on behalf of the state showing that the testimony is material and necessary, and even then the granting of the order shall be in the discretion of the court or such judge. The order must be executed by the sheriff of the county in which it is made by delivering to the warden or jailer having such witness in charge a copy of such order, and the warden or jailer shall deliver the person so required to such officer and shall take such officer’s receipt for the person endorsed upon the copy of such order. The officer receiving any such person shall take the person before the proper court, shall keep the person safely, and when the person is required no longer as a witness, shall return the person to the custody from which the person was received. Neither the warden nor the jailer shall be responsible for any such person until the person’s return, and upon the return of any such person the warden or jailer, as the case may be, shall endorse the warden’s or jailer’s receipt upon the original order. The sheriff executing any such order shall return the same to the clerk of the district court of the county from which it was issued, and said clerk shall file and preserve the same among the papers in the action. The expense of executing such order shall be paid by the county in which the order shall be made.

Source:

R.C. 1895, § 8373; R.C. 1899, § 8373; R.C. 1905, § 10182; C.L. 1913, § 11038; R.C. 1943, § 31-0318.

Collateral References.

Closed-circuit television witness examination, 61 A.L.R.4th 1155.

31-03-19. Undertaking for appearance of material witness for state who appeared at preliminary examination — Minors.

If, after a preliminary examination, a defendant is held to answer, the magistrate before whom the examination was held may require any material witness examined on the part of the state:

  1. To enter into a written undertaking, without surety, to the effect that such witness will appear and testify at the court to which the complaint and depositions, if any, are to be sent, or that the witness will forfeit such sum as the magistrate may fix and determine; or
  2. To enter into a written undertaking for the witness’s appearance with such sureties and in such sum as the magistrate may deem proper, if the magistrate is satisfied, by proof on oath, that there is reason to believe that such witness will not appear and testify unless security is required.

If any such material witness is a minor, any adult person may be allowed to give an undertaking for the minor’s appearance, or the magistrate may take the undertaking of such minor in a sum not exceeding fifty dollars, which shall be valid and binding in law, notwithstanding the disability of minority.

Source:

C. Crim. P. 1877, §§ 154 to 156; R.C. 1895, §§ 7972 to 7974; R.C. 1899, §§ 7972 to 7974; R.C. 1905, §§ 9780 to 9782; C.L. 1913, §§ 10617 to 10619; R.C. 1943, § 31-0319.

31-03-20. Undertaking for appearance of material witness for state — When required — Procedure for requiring.

If, after any material witness on the part of the prosecution has been discharged on the witness’s undertaking without surety, it is satisfactorily shown on the sworn application of the state’s attorney or of some other person on behalf of the state made to the magistrate before whom the preliminary examination was held, or to any judge, that the presence of such witness or any other person on the part of the prosecution is material or necessary on the trial in court, such magistrate, justice, or judge may compel such witness, or any other material witness on the part of the state, to give an undertaking with sureties, to appear on said trial and give testimony therein, and for that purpose, such magistrate, justice, or judge may issue a warrant against any such person directed to a sheriff, marshal, or other peace officer, to arrest such person and bring the person before such magistrate, justice, or judge.

Source:

C. Crim. P. 1877, § 158; R.C. 1895, § 7976; R.C. 1899, § 7976; R.C. 1905, § 9784; C.L. 1913, § 10621; R.C. 1943, § 31-0320.

31-03-21. When confinement of material witness for state permitted. [Repealed]

Superseded by N.D.R.Crim.P. 46.

31-03-22. Conditional examinations of witness. [Repealed]

Superseded by N.D.R.Crim.P. 46.

31-03-23. Forfeiture of undertaking by witness. [Repealed]

Superseded by N.D.R.Crim.P. 46.

31-03-24. Fees for witnesses who have been confined may be allowed — Amount allowable.

In any criminal case in which it appears to the satisfaction of the trial judge that a witness who has been required to enter into an undertaking, with sureties, for the witness’s appearance at the trial court, was committed to and confined in prison because the witness actually was unable to obtain and furnish acceptable sureties by reason of being a stranger or a transient in the community, or for other good and sufficient reason, such judge may order the allowance to such witness, and the payment by the proper county, of witness fees, at the rate of fifty cents per day, for and during the period of imprisonment.

Source:

S.L. 1897, ch. 151, § 1; R.C. 1899, § 7977a; R.C. 1905, § 9786; C.L. 1913, § 10623; R.C. 1943, § 31-0324.

Collateral References.

Right of witness detained in custody for future appearance to fees for such detention, 50 A.L.R.2d 1439.

31-03-25. Summoning witness in this state to testify in another state.

If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in a criminal prosecution in this state, certifies under the seal of such court that:

  1. There is a criminal prosecution pending in such court;
  2. A person who is within this state is a material witness in such prosecution; and
  3. The person’s presence will be required for a specified number of days,

any judge of a court of record in the county in which such person may be, upon presentation of such certificate, shall fix a time and place for a hearing and shall notify the witness of such time and place.

Source:

S.L. 1933, ch. 217, § 1; R.C. 1943, § 31-0325.

Law Reviews.

Uniform Laws in North Dakota, 27 N.D. L. Rev. 313 (1951).

31-03-26. Summons issued to compel witness to appear in another state.

If at the hearing on a certificate to secure the attendance of a person within this state as a material witness in a criminal prosecution in another state, the judge determines that:

  1. The witness is material and necessary;
  2. It will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution in the other state; and
  3. The laws of the state in which the prosecution is pending and of any other state through which the witness may be required to pass by ordinary course of travel will give the witness protection from arrest and the service of civil and criminal process,

the judge shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the prosecution is pending at a time and place specified in the summons.

Source:

S.L. 1933, ch. 217, § 1; R.C. 1943, § 31-0326.

Collateral References.

Uniform Act to Secure Attendance of Witnesses from without a State in Criminal Proceedings, 44 A.L.R.2d 732.

Availability under Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings of subpoena duces tecum, 7 A.L.R.4th 836.

Sufficiency of evidence to support or require finding that out-of-state witness in criminal case is “material witness” justifying certificate to secure attendance under Uniform Act to Secure the Attendance of Witnesses from 12 A.L.R.4th 742.

Sufficiency of evidence to support or require finding that in-state witness in criminal case is “material and necessary” justifying issuance of summons directing attendance of witness under Uniform Act to Secure the Attendance of Witnesses from 12 A.L.R.4th 771.

Comparative Legislation.

Jurisdictions which have enacted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings include:

Ala. Code §§ 12-21-280 to 12-21-285.

Alaska Stat. §§ 12.50.010 to 12.50.080.

Ariz. Rev. Stat. Ann. §§ 13-4091 to 13-4096.

Ark. Stat. Ann. §§ 16-43-402 to 16-43-409.

Cal. Penal Code §§ 1334 to 1334.6.

Colo. Rev. Stat. §§ 16-9-201 to 16-9-205.

Conn. Gen. Stat. Ann. § 54-82i.

Del. Code Ann. tit. 11, §§ 3521 to 3526.

D.C. Code Ann. §§ 23-1501 to 23-1504.

Fla. Stat. §§ 942.01 to 942.06.

Ga. Code §§ 24-10-90 to 24-10-97.

Hawaii Rev. Stat. §§ 836-1 to 836-6.

Idaho Code § 19-3005.

Ill. 725 ILCS 220/1 to 725 ILCS 220/6.

Ind. Code §§ 35-37-5-1 to 35-37-5-9.

Iowa Code §§ 819.1 to 819.5.

Kan. Stat. Ann. §§ 22-4201 to 22-4206.

Ky. Rev. Stat. §§ 421.230 to 421.270.

La. Rev. Stat. Ann. arts. 741 to 745.

Me. Rev. Stat. Ann. tit. 15, §§ 1411 to 1415.

Md. Cts. & Jud. Proc. Code Ann. §§ 9-301 to 9-306.

Mass. Gen. Laws Ann. ch. 233, §§ 13A to 13D.

Mich. Comp. Laws §§ 767.91 to 767.95.

Minn. Stat. §§ 634.06 to 634.09.

Miss. Code Ann. §§ 99-9-27 to 99-9-35.

Mo. Rev. Stat. §§ 491.400 to 491.450.

Mont. Code Ann. §§ 46-15-111 to 46-15-114.

Neb. Rev. Stat. §§ 29-1906 to 29-1911.

Nev. Rev. Stat. §§ 174.395 to 174.445.

N.H. Rev. Stat. Ann. §§ 613:1 to 613:6.

N.J. Rev. Stat. §§ 2A:81-18 to 2A:81-23.

N.M. Stat. Ann. §§ 31-8-1 to 31-8-6.

N.Y. Civ. Prac. Law § 640.10.

N.C. Gen. Stat. §§ 15A-811 to 15A-816.

Ohio Rev. Code Ann. §§ 2939.25 to 2939.29.

Okla. Stat. tit. 22, §§ 721 to 727.

Or. Rev. Stat. §§ 136.623 to 136.637.

Pa. Stat. Ann. tit. 42, §§ 5961 to 5965.

P.R. Laws Ann. tit. 34, §§ 1471 to 1475.

R.I. Gen. Laws §§ 12-16-1 to 12-16-13.

S.C. Code Ann. §§ 19-9-10 to 19-9-130.

S.D. Cod. Laws Ann. § 23A-14-1 et seq.

Tenn. Code Ann. §§ 40-17-201 to 40-17-212.

Tex. Crim. Proc. Code Ann. art. 24.28.

Utah Code Ann. §§ 77-21-1 to 77-21-5.

Vt. Stat. Ann. tit. 13, §§ 6641 to 6649.

V.I. Code Ann. tit. 5, §§ 3861 to 3865.

Va. Code Ann. §§ 19.2-272 to 19.2-282.

Wash. Rev. Code §§ 10.55.010 to 10.55.130.

W. Va. Code §§ 62-6A-1 to 62-6A-6.

Wis. Stat. § 976.02.

Wyo. Stat. §§ 7-11-407 to 7-11-409.

31-03-27. Mileage and witness fees of witness summoned to another state — Failure to appear — Penalty.

If the witness who is summoned as provided in section 31-03-25, after being paid or tendered by some properly authorized person the sum of ten cents a mile for each mile, by the ordinarily traveled route to and from the court where the prosecution is pending, and five dollars for each day that the witness is required to travel and attend as a witness, fails without good cause to attend and testify as directed in the summons, the witness shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.

Source:

S.L. 1933, ch. 217, § 1; R.C. 1943, § 31-0327.

31-03-28. Witness from another state summoned to testify in this state.

If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions in this state, is a material witness in a prosecution pending in a court of record in this state, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.

Source:

S.L. 1933, ch. 217, § 2; R.C. 1943, § 31-0328.

31-03-29. Mileage and fees of witness from another state — Length of time to remain in state.

If the witness from another state is summoned to attend and testify in a criminal prosecution in this state, the witness is entitled to the fees and expenses provided to witnesses under section 31-01-16. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state for a longer period of time than the period mentioned in the certificate.

Source:

S.L. 1933, ch. 217, § 2; R.C. 1943, § 31-0329; S.L. 1983, ch. 371, § 1.

31-03-30. Witness coming into state — Exemption from arrest and service of process.

If a person comes into this state in obedience to a summons directing the person to attend and testify in a criminal prosecution in this state, the person shall not be subject, while in this state pursuant to such summons, to arrest or the service of process, civil or criminal, in connection with matters which arose before the person’s entrance into this state under the summons.

Source:

S.L. 1933, ch. 217, § 3; R.C. 1943, § 31-0330.

31-03-31. Witness passing through state to testify in other state exempt from arrest and service of process.

If a person passes through this state while going to another state in obedience to a summons to attend and testify in a criminal prosecution in that state or while returning therefrom, the person, while passing through this state, shall not be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before the person’s entrance into this state under the summons.

Source:

S.L. 1933, ch. 217, § 3; R.C. 1943, § 31-0331.

CHAPTER 31-04 General Provisions

31-04-01. Methods of taking testimony of witnesses.

Testimony of witnesses may be taken by:

  1. Affidavit.
  2. Deposition.
  3. Oral examination.

Source:

C. Civ. P. 1877, § 463; R.C. 1895, § 5665; R.C. 1899, § 5665; R.C. 1905, § 7265; C.L. 1913, § 7883; R.C. 1943, § 31-0401.

Derivation:

Harston’s (Cal.) Practice, 2002.

Notes to Decisions

Applicability.

Forensic scientist’s document was an affidavit and a certification, as called for in N.D.C.C. § 39-20-07(5); and as an affidavit, the scientist’s statements constituted testimony of a witness; the hearing officer did not err in admitting the laboratory results of the driver’s chemical test for intoxication. Painte v. Dir., DOT, 2013 ND 95, 832 N.W.2d 319, 2013 N.D. LEXIS 91 (N.D. 2013).

Proof of Service.

There was sufficient evidence in the record to support the jury’s finding of service where there was an affidavit of mailing, and the affiant personally testified in court. State v. Wolff, 512 N.W.2d 670, 1994 N.D. LEXIS 54 (N.D. 1994).

31-04-02. Affidavit defined.

An affidavit is a written declaration under oath made without notice to the adverse party.

Source:

C. Civ. P. 1877, § 464; R.C. 1895, § 5666; R.C. 1899, § 5666; R.C. 1905, § 7266; C.L. 1913, § 7884; R.C. 1943, § 31-0402.

Derivation:

Harston’s (Cal.) Practice, 2003.

Notes to Decisions

Affiant Need Not Sign.

In absence of a rule of court or statute requiring an affiant to subscribe his name to an affidavit, it is not necessary for him to do so. Robertson Lumber Co. v. Swenson, 24 N.D. 134, 138 N.W. 984 (N.D. 1912).

Applicability.

Forensic scientist’s document was an affidavit and a certification, as called for in N.D.C.C. § 39-20-07(5); and as an affidavit, the scientist’s statements constituted testimony of a witness; the hearing officer did not err in admitting the laboratory results of the driver’s chemical test for intoxication. Painte v. Dir., DOT, 2013 ND 95, 832 N.W.2d 319, 2013 N.D. LEXIS 91 (N.D. 2013).

Unsworn Statement Insufficient.

Witnesses’ unsworn statement did not qualify as “other comparable means” for raising a disputed factual issue; unsworn statement was insufficient to raise a genuine issue of material fact about whether saloon served alcoholic beverages to defendant. Stewart v. Ryan, 520 N.W.2d 39, 1994 N.D. LEXIS 169 (N.D. 1994).

31-04-03. Deposition defined.

A deposition is a written declaration under oath made upon notice to the adverse party for the purpose of enabling the adverse party to attend and cross-examine, or upon written interrogatories.

Source:

C. Civ. P. 1877, § 465; R.C. 1895, § 5667; R.C. 1899, § 5667; R.C. 1905, § 7267; C.L. 1913, § 7885; R.C. 1943, § 31-0403.

Derivation:

Harston’s (Cal.) Practice, 2004, 2006.

Cross-References.

Depositions and interrogatories, see N.D.R.Civ.P. 26-37; N.D.R.Crim.P. 15.

Collateral References.

Protective orders limiting dissemination of financial information obtained by deposition or discovery in state civil actions, 43 A.L.R.4th 121.

31-04-04. Oral examination defined.

An oral examination is an examination in the presence of the jury or tribunal which is to decide the fact or act upon it, the testimony being heard by the jury or tribunal from the lips of the witness.

Source:

C. Civ. P. 1877, § 466; R.C. 1895, § 5668; R.C. 1899, § 5668; R.C. 1905, § 7268; C.L. 1913, § 7886; R.C. 1943, § 31-0404.

Derivation:

Harston’s (Cal.) Practice, 2005.

Notes to Decisions

Presence in Courtroom.

This section requires the presence of the witness in the courtroom. In Interest of Gust, 345 N.W.2d 42, 1984 N.D. LEXIS 264 (N.D. 1984).

31-04-04.1. Videotaped statement of child sexual offense victim — Criteria for admission as evidence.

  1. In any prosecution for a violation of section 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, 12.1-20-06, 12.1-20-07, or 12.1-20-11 in which the victim is less than fifteen years of age, the oral statement of the child victim may be recorded before trial and, subject to subsection 2, is admissible as evidence in any court proceeding regarding the offense if the following conditions are satisfied:
    1. The court determines there is reasonable cause to believe that the child victim would experience serious emotional trauma as a result of in-court participation in the proceeding;
    2. The accused must be given reasonable written notice of the time and place for taking the videotaped statement;
    3. The accused must be afforded the opportunity to hear and view the testimony from outside the presence of the child by means of a two-way mirror or other similar method that will ensure that the child cannot hear or see the accused;
    4. The accused must have the opportunity to communicate orally with counsel by electronic means while the videotaped statement is being made; and
    5. All questioning must be done by the prosecutor or counsel for the defendant unless the defendant is an attorney pro se. An attorney pro se must conduct all questioning from outside the presence of the child. Upon request of any of the parties or upon the determination of the court that it would be appropriate, the court may appoint a person who is qualified as an expert and who has dealt with the child in a therapeutic setting to aid the court throughout proceedings conducted under this section and the court may appoint a guardian ad litem to protect the interests of the child.
  2. A child victim’s videotaped statement is admissible pursuant to subsection 1 if the court finds that the child is unavailable as a witness to testify at trial and, upon viewing the videotape recording before it is shown to the jury, determines that it is sufficiently reliable and trustworthy and that the interests of justice will best be served by admission of the statement into evidence. For purposes of this subsection, “unavailable” includes a determination, based on medical or psychological evidence or expert testimony, that the child would suffer serious emotional or psychological strain if required to testify at trial. The court, in making its findings and determinations under this subsection, shall consider at least the following:
    1. The nature of the offense;
    2. The significance of the child’s testimony to the case;
    3. The child’s age;
    4. The child’s psychological maturity and understanding; and
    5. The nature, degree, and duration of potential injury to the child from testifying.

Source:

S.L. 1991, ch. 352, § 1; 1993, ch. 336, § 1; 1997, ch. 124, § 7.

Collateral References.

Denial or restriction of visitation rights to parent charged with sexually abusing child, 1 A.L.R.5th 776.

31-04-04.2. Use of audiovisual equipment for the testimony of minors or disabled adult witnesses.

  1. At the time of trial, if the witness is a minor or is a disabled adult as defined in section 12.1-31-07, the court may order the witness’s testimony be taken in a room other than the courtroom and be televised by audiovisual equipment in the courtroom if:
    1. The testimony is taken during the proceeding;
    2. The judge determines the testimony of the witness in the presence of the defendant would result in the witness suffering serious emotional distress or trauma that would impact the ability of the witness to reasonably communicate; and
    3. Audiovisual equipment is available.
  2. To obtain an order authorizing the use of audiovisual equipment for testimony by a minor or disabled adult witness, the party shall file a written motion with the court no later than fourteen days before the trial.
  3. Only the prosecuting attorney, attorney for the defendant, guardian ad litem, and the judge may question the minor or disabled adult witness.
  4. The following individuals may be in the room with the witness when the minor or disabled adult provides testimony:
    1. The prosecuting attorney;
    2. The guardian ad litem;
    3. The judge while administering the oath;
    4. The operators of the audiovisual equipment;
    5. By order of the court, an individual whose presence contributes to the welfare and well-being of the witness, including an individual who has dealt with the witness in a therapeutic setting; and
    6. An attorney representing the defendant.
  5. The judge and defendant must be allowed to communicate with the individuals in the room where the witness is testifying through audiovisual equipment or by meeting outside the presence of the witness.
  6. This section does not preclude the presence of both the witness and the defendant in the courtroom at the same time for purposes of identifying the defendant.

Source:

S.L. 2017, ch. 232, § 1, effective August 1, 2017.

31-04-05. Use of affidavits.

An affidavit may be used:

  1. To verify a pleading.
  2. To prove the service of a summons, notice, or other process in an action.
  3. To obtain a provisional remedy.
  4. To obtain an examination of a witness.
  5. To obtain a stay of proceedings.
  6. Upon a motion.
  7. In any other case permitted by law.

Source:

C. Civ. P. 1877, § 467; R.C. 1895, § 5669; R.C. 1899, § 5669; R.C. 1905, § 7269; C.L. 1913, § 7887; R.C. 1943, § 31-0405.

Derivation:

Harston’s (Cal.) Practice, 2009.

Collateral References.

Affidavits 18.

3 Am. Jur. 2d, Affidavits, §§ 18-20.

Attachment: sufficiency of affidavit for attachment, respecting fraud or intent to defraud, as against objection that it is a mere legal conclusion, 8 A.L.R.2d 578.

Voir dire: admissibility, in civil case, of juror’s affidavit or testimony to show bias, prejudice, or disqualification of a juror not disclosed on voir dire examination, 48 A.L.R.2d 971.

Counteraffidavits: necessity and propriety of counteraffidavits in opposition to motion for new trial in civil case, 7 A.L.R.3d 1000.

Verdict: competency of juror’s statement or affidavit to show that verdict in civil case was not correctly recorded, 18 A.L.R.3d 1132.

Attorney: disqualification of attorney, otherwise qualified, to take oath or acknowledgment from client, 21 A.L.R.3d 483.

31-04-06. How proof of publication made.

Proof of the publication of a document or notice required by law or by court order to be published in a newspaper may be made by the affidavit of the publisher of the newspaper, or the publisher’s designee, annexed to a copy of the document or notice, specifying the paper in which and the times when the publication was made.

Source:

C. Civ. P. 1877, § 490; R.C. 1895, § 5693; R.C. 1899, § 5693; R.C. 1905, § 7294; C.L. 1913, § 7913; R.C. 1943, § 31-0406; S.L. 1991, ch. 353, § 1.

Derivation:

Harston’s (Cal.) Practice, 2010, 2011.

31-04-07. Where and how affidavits may be made.

An affidavit may be made in or out of this state before any person authorized to administer an oath.

Source:

C. Civ. P. 1877, § 468; S.L. 1885, ch. 2, § 1; R.C. 1895, § 5670; R.C. 1899, § 5670; R.C. 1905, § 7270; C.L. 1913, § 7888; R.C. 1943, § 31-0407.

Derivation:

Harston’s (Cal.) Practice, 2012 to 2015.

Cross-References.

Persons authorized to administer oaths, see N.D.C.C. § 44-05-01.

31-04-08. Procedure for securing affidavit of person refusing to make the same.

When any party intends to make or oppose a motion in any court and it shall be necessary for the party to have the affidavit of any person who shall have refused to make the same, such court, by order, may appoint a referee to take the affidavit or deposition of such person. Such person may be subpoenaed and compelled to attend and make an affidavit before such referee the same as before a referee to whom an action is referred to try an issue, and the fees of such referee for such service shall be three dollars per day.

Source:

C. Civ. P. 1877, § 510; S.L. 1893, ch. 85, § 1; R.C. 1895, § 5718; R.C. 1899, § 5718; R.C. 1905, § 7324; C.L. 1913, § 7943; R.C. 1943, § 31-0408.

Derivation:

Wait’s (N.Y.) Code, 401; Harston’s (Cal.) Practice, 1004.

31-04-09. No title required to affidavits.

It shall not be necessary to entitle an affidavit in the action, but an affidavit made without a title or with a defective title shall be as valid and effectual for every purpose as if it were duly entitled, if it intelligibly refers to the action or proceeding in which it is made.

Source:

C. Civ. P. 1877, § 527; R.C. 1895, § 5737; R.C. 1899, § 5737; R.C. 1905, § 7344; C.L. 1913, § 7964; R.C. 1943, § 31-0409.

Derivation:

Wait’s (N.Y.) Code, 406; Harston’s (Cal.) Practice, 1046.

31-04-10. Form and contents of certificate for certifying copies to be used as evidence.

Whenever a copy of a writing is certified for the purpose of evidence, the certificate must state in substance that the copy is a correct copy of the original, or of a specified part thereof, as the case may be. The certificate must be under the official seal of the certifying officer, if there is any, or if such officer is a clerk of a court having a seal, under the seal of such court.

Source:

C. Civ. P. 1877, § 497; R.C. 1895, § 5700; R.C. 1899, § 5700; R.C. 1905, § 7301; C.L. 1913, § 7920; R.C. 1943, § 31-0410.

Derivation:

Harston’s (Cal.) Practice, 1923.

Notes to Decisions

Limitations on Authority of Officer.

This section does not authorize a certifying officer to certify that any fact does or does not appear of record, or to substitute his judgment for that of the court and certify what the record pertains to. Sykes v. Beck, 12 N.D. 242, 96 N.W. 844 (1903), distinguished, Darling v. Purcell, 13 N.D. 288, 100 N.W. 726 (1904) and State v. Hopkins, 64 N.D. 301, 252 N.W. 48, 1933 N.D. LEXIS 277 (N.D. 1933).

31-04-11. Mediation — Inadmissibility of evidence — Exception.

When persons agree to conduct and participate in a mediation for the purpose of compromising, settling, or resolving a dispute, evidence of anything said or of any admission made in the course of the mediation is inadmissible as evidence and disclosure may not be compelled in any subsequent civil proceeding except as provided in this section. This section does not limit the compulsion nor the admissibility of evidence if:

  1. The evidence relates to a crime, civil fraud, or a violation under the Uniform Juvenile Court Act;
  2. The evidence relates to a breach of duty by the mediator;
  3. The validity of the mediated agreement is in issue; or
  4. All persons who conducted or otherwise participated in the mediation consent to disclosure.

Source:

S.L. 1989, ch. 408, § 1.

Law Reviews.

For Article: Avoiding Pitfalls: Common Reasons for Mediation Failure and Solutions For Success, see 84 N.D. L. Rev. 861 (2008).

31-04-12. Expressions of empathy.

  1. A statement, affirmation, gesture, or conduct of a health care provider, or health care provider’s employee or agent, which expresses apology, sympathy, commiseration, condolence, compassion, or benevolence to a patient or to a patient’s relative or representative is not admissible as evidence of liability or as an admission against interest in a civil action, arbitration proceeding, or administrative hearing regarding the health care provider.
  2. For purposes of this section, unless the context otherwise requires:
    1. “Health care provider” means:
      1. An individual licensed or certified by the state to deliver health care;
      2. A hospital or clinic, including an ambulatory surgery center or group of physicians operating a clinic or outpatient care facility, or a professional corporation or other professional entity comprised of such health care providers as permitted by the laws of this state; and
      3. A nursing, basic, or assisted living facility licensed by this state or by any other health care organization.
    2. “Relative” means an individual who has a relationship to the patient by marriage, blood, or adoption.
    3. “Representative” means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a health care directive, or any person recognized in law or custom as a patient’s agent.

Source:

S.L. 2007, ch. 284, § 1.

CHAPTER 31-05 Depositions in Civil Actions

[Superseded by North Dakota Rules of Civil Procedure]

31-05-01. When depositions may be used. [Repealed]

Superseded by N.D.R.Civ.P. 26(d)(3), now 32(a)(3).

31-05-02. When depositions may be taken. [Repealed]

Superseded by N.D.R.Civ.P. 26(a), now 30(a), 31(a).

31-05-03. Who authorized to take a deposition in this state. [Repealed]

Superseded by N.D.R.Civ.P. 28(a).

31-05-04. Who authorized to take a deposition out of state. [Repealed]

Superseded by N.D.R.Civ.P. 28(a).

31-05-05. Officers ineligible to take a deposition. [Repealed]

Superseded by N.D.R.Civ.P. 28(c), now 28(d).

31-05-06. Commission to take depositions in or out of state — Who may issue — When issued — Form — Interrogatories. [Repealed]

Superseded by N.D.R.Civ.P. 31(a).

31-05-07. Notice for taking depositions — Required when — Contents. [Repealed]

Superseded by N.D.R.Civ.P. 30(a), now 30(b).

31-05-08. Depositions may be taken without notice, when. [Repealed]

Superseded by N.D.R.Civ.P.

31-05-09. Time for service of notice for taking deposition. [Repealed]

Superseded by N.D.R.Civ.P. 30(a), now 30(b).

31-05-10. Service of notice by publication — When permitted — Method — Personal service out of state equivalent to. [Repealed]

Superseded by N.D.R.Civ.P. 5(a).

31-05-11. Cross-examination of unnamed deponent — Contents and service of notice for — Officers eligible to take. [Repealed]

Superseded by N.D.R.Civ.P. 26(a), now 30(b)(c), 31(a); 30(a), now 31(a), 30(b)(c).

31-05-12. Taking of deposition may be adjourned from day to day. [Repealed]

Superseded by N.D.R.Civ.P. 30(a), now 30(b).

31-05-13. Depositions to be written and subscribed by whom. [Repealed]

Superseded by N.D.R.Civ.P. 30(e), now 30(c).

31-05-14. Officer’s certificate to deposition — Required — Contents. [Repealed]

Superseded by N.D.R.Civ.P. 30(f).

31-05-15. Sealing and returning of depositions — When depositions may be opened. [Repealed]

Superseded by N.D.R.Civ.P. 30(f).

31-05-16. Time for filing depositions. [Repealed]

Superseded by N.D.R.Civ.P. 30(f).

31-05-17. Authentication of deposition. [Repealed]

Superseded by N.D.R.Civ.P. 30(f).

31-05-18. Introduction in evidence of deposition dependent upon showing of grounds for nonattendance of witness. [Repealed]

Superseded by N.D.R.Civ.P. 26(d)(3), now 32(a)(3).

31-05-19. Reading of deposition permitted by whom, when, and in which actions — Deposition considered whose evidence. [Repealed]

Superseded by N.D.R.Civ.P. 26(d)(4), now 32(d)(3).

31-05-20. Exceptions to depositions — When and how taken. [Repealed]

Superseded by N.D.R.Civ.P. 30(c).

31-05-21. Hearing on exceptions to depositions. [Repealed]

Superseded by N.D.R.Civ.P. 30(c).

31-05-22. Depositions for use in other states or foreign jurisdictions — Taking permitted — Taken before whom — Compelling attendance of witness. [Repealed]

Superseded by N.D.R.Civ.P. 45.

CHAPTER 31-06 Depositions in Criminal Actions [Repealed]

[Superseded by North Dakota Rules of Criminal Procedure, Rules 15, 17]

Note.

Chapter 31-0. was superseded by N.D.R.Crim.P. 15. Section 31-06-07 was also superseded by N.D.R.Crim.P. 17.

CHAPTER 31-07 Perpetuation of Testimony [Repealed]

[Superseded by North Dakota Rules of Civil Procedure]

31-07-01. When testimony may be taken and perpetuated. [Repealed]

Superseded by N.D.R.Civ.P. 27(a)(1).

31-07-02. Application for order for perpetuation of testimony — Where made — Form — Verification — Contents. [Repealed]

Superseded by N.D.R.Civ.P. 27(a)(1).

31-07-03. Order for perpetuation of testimony — When made — Contents. [Repealed]

Superseded by N.D.R.Civ.P. 27(a)(3).

31-07-04. Manner of service of notice of taking and perpetuating of testimony. [Repealed]

Superseded by N.D.R.Civ.P. 27(a)(2).

31-07-05. Issuance of commission and settlement of interrogatories for perpetuation of testimony taken outside of state. [Repealed]

Superseded by N.D.R.Civ.P. 27(a)(3), 28(a), (b), 31(a).

31-07-06. Officer authorized to take testimony — Filing of papers with such officer before taking testimony required. [Repealed]

Superseded by N.D.R.Civ.P. 28(a).

31-07-07. Depositions taken, authenticated, and returned, how — Taking adjournable from day to day. [Repealed]

Superseded by N.D.R.Civ.P. 30(f).

31-07-08. Filing of papers required — Papers filed constitute prima facie proof of compliance with chapter provisions. [Repealed]

Superseded by N.D.R.Civ.P. 30(f).

31-07-09. When, where, and by whom perpetuated testimony may be read in evidence. [Repealed]

Superseded by N.D.R.Civ.P. 27(a)(4).

31-07-10. Objections available when perpetuated testimony is introduced at trial. [Repealed]

Superseded by N.D.R.Civ.P. 26(e), 30(c), now Rules 32(b), 30(c).

31-07-11. Costs paid by whom. [Repealed]

Superseded by N.D.R.Civ.P. 30(c).

31-07-12. Perpetuation of testimony of injured persons — Permitted — Notice — Service of notice. [Repealed]

Superseded by N.D.R.Civ.P. 27(a)(1), (2).

31-07-13. Regulations for the taking of the deposition of injured person. [Repealed]

Superseded by N.D.R.Civ.P. 27.

31-07-14. Sealing, returning, and opening of deposition of injured person. [Repealed]

Superseded by N.D.R.Civ.P. 30(f).

31-07-15. Authentication and use of deposition of injured person. [Repealed]

Superseded by N.D.R.Civ.P. 27(a)(4), 30(f).

CHAPTER 31-08 Private Records and Writings

31-08-01. Admissibility in evidence of business records — Term business defined — Exception.

A record of an act, condition, or event is competent evidence insofar as relevant, if:

  1. The custodian or other qualified witness testifies to its identity and the mode of its preparation.
  2. It was made in the regular course of business, at or near the time of the act, condition, or event.
  3. The sources of information and the method and time of preparation, in the opinion of the court, were such as to justify its admission.

For the purpose of this section, the term “business” includes every kind of business, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.

Source:

S.L. 1907, ch. 118, § 1; C.L. 1913, § 7909; S.L. 1937, ch. 194, §§ 1, 2; R.C. 1943, § 31-0801; S.L. 1975, ch. 292, § 1; 1997, ch. 234, § 2.

Note.

The Uniform Business Records as Evidence Act was withdrawn by the National Conference of Commissioners on Uniform State Laws in 1966.

Cross-References.

Health care organization peer review committees, records confidential and privileged, see N.D.C.C. §§ 23-34-02, 23-34-03.

Notes to Decisions

Applies in Criminal Actions.

The statute is not restricted in its application to evidence in civil actions but is also applicable to criminal actions. State v. Ramstad, 87 N.W.2d 736, 1958 N.D. LEXIS 61 (N.D. 1958).

Discretion of Court.

Trial court ruling on the admission or exclusion of records under this statute will not be reversed, absence of a manifest abuse of discretion. The statute should be liberally construed. 74 N.W.2d 497; Northern Pac. Ry. v. Advanced Realty Co., 78 N.W.2d 705, 1956 N.D. LEXIS 146 (N.D. 1956); J. R. Watkins Co. v. Vangen, 116 N.W.2d 641, 1962 N.D. LEXIS 86 (N.D. 1962).

Foreclosure Letter.

Trial court did not abuse its discretion in receiving letter and attachments mailed to borrowers by Farm Credit Service into evidence in foreclosure action under the “business records” rule. Farm Credit Bank v. Huether, 454 N.W.2d 710, 1990 N.D. LEXIS 89 (N.D. 1990).

Foundation.

Where witness testified that she personally kept books for plaintiff’s filling station; that in keeping such books use was made of sales slips which were turned in each morning, together with an adding machine tape of sales made the previous day, and that these were posted in the ledger; that most of the posting was done by her and where witness identified certain ledger cards as those of defendant’s purchases and stated that the entries thereon had been made in the ordinary course of business, a sufficient foundation was laid for admission of ledger sheets into evidence. Rheault v. Tennefos Constr. Co., 189 N.W.2d 626, 1971 N.D. LEXIS 135 (N.D. 1971).

Funeral Bill.

County did not abuse its discretion by allowing business record evidence of presentation of funeral bill by mail, even though the business records and testimony of the funeral home may not have been as complete and painstaking as estate would have liked. Nickisch-Ressler Funeral Home v. Romanick, 450 N.W.2d 416, 1990 N.D. LEXIS 19 (N.D. 1990).

Hospital Records.

Hospital records are admissible as “business” records; although hospital records are admissible generally, individual entries therein are subject to scrutiny and may be excluded or eliminated from such records on the basis that the entries are otherwise not admissible; self-serving statements in a hospital record, if offered to establish how an injury occurred or to establish liability, are not admissible unless the statement is relevant and helpful to or serves as an aid in the diagnosis and treatment of the patient’s injury. Jahner v. Jacob, 233 N.W.2d 791, 1975 N.D. LEXIS 166 (N.D.), cert. denied, 423 U.S. 870, 96 S. Ct. 134, 46 L. Ed. 2d 100, 1975 U.S. LEXIS 2802 (U.S. 1975).

Monthly Statements.

Where business invoices showing the amount owed by defendant to plaintiff were missing, plaintiff’s monthly statements, which were prepared from the invoices, were admissible evidence as to the amount owed by defendant to plaintiff where the monthly statements were a part of plaintiff’s regular bookkeeping records and notices of the invoices by number, date, and amount owed were sent to defendant and were included in the monthly statements forwarded to defendant by plaintiff. Sheyenne Valley Lumber Co. v. Nokleberg, 319 N.W.2d 120, 1982 N.D. LEXIS 248 (N.D. 1982).

No Effect upon Relevancy.

This section has no effect upon relevancy but permits a wide discretion on the part of the trial court in passing upon the sufficiency of the foundation of proffered evidence. State v. Ramstad, 87 N.W.2d 736, 1958 N.D. LEXIS 61 (N.D. 1958).

Noncompliance with Requirements.

In suit for alleged damages to merchandise while in storage, defendant’s witness, who was not custodian of goods, was not able to testify as to figures constituting damage claim and could not testify as to mode of preparation of such figures since, in failing to comply with this section, he did not submit testimony which could properly be entered into evidence. Great Plains Supply Co. v. Mobil Oil Co., 172 N.W.2d 241, 1969 N.D. LEXIS 73 (N.D. 1969).

Non-Jury Trial.

Where trial court admitted opinions of three doctors, contained in voluminous hospital records which were admitted into evidence, such opinions were subject to scrutiny and could be eliminated from records on basis that they were not otherwise admissible, but since trial court is qualified to rule on admissibility of evidence, and case was tried without jury, it was not prejudicial error to admit hospital records. Jahner v. Jacob, 233 N.W.2d 791, 1975 N.D. LEXIS 166 (N.D.), cert. denied, 423 U.S. 870, 96 S. Ct. 134, 46 L. Ed. 2d 100, 1975 U.S. LEXIS 2802 (U.S. 1975).

Prima Facie Effect.

Sales slips showing defendant’s indebtedness to grocer, having been properly admitted into evidence by trial court, should have been given prima facie effect in absence of contradictory evidence. Interstate Collection Agency v. Kuntz, 181 N.W.2d 234, 1970 N.D. LEXIS 142 (N.D. 1970).

Pursuant to the Uniform Business Records as Evidence Act, records received in evidence pursuant to this section and unrebutted as evidence will be given prima facie effect. Rheault v. Tennefos Constr. Co., 189 N.W.2d 626, 1971 N.D. LEXIS 135 (N.D. 1971).

Purpose of Section.

The purpose of enacting this section was to enlarge the operation of the business records exception to the hearsay evidence rule and should be liberally construed to that end. J. R. Watkins Co. v. Vangen, 116 N.W.2d 641, 1962 N.D. LEXIS 86 (N.D. 1962); Endicott Johnson Corp. v. Golde, 190 N.W.2d 752, 1971 N.D. LEXIS 115 (N.D. 1971).

The purpose of this section is to eliminate requirement for some of foundational testimony which was formerly necessary, and ultimate effect is to expedite trial of lawsuit; weight to be accorded records is still matter for trier of facts. Seco, Inc. v. Gauvey Rig & Trucking Co., 166 N.W.2d 397, 1969 N.D. LEXIS 118 (N.D. 1969).

Regular Course of Business.

A parts list memorandum establishing the value of the parts was not made in the regular course of business, where it was prepared, after the preparer had gone out of business, for the purpose of returning the parts to the seller. Pulkrabek, Inc. v. Yamaha Int'l Corp., 261 N.W.2d 657, 1977 N.D. LEXIS 182 (N.D. 1977).

Qualified Witness.

Statute does not limit “qualified witness” of subsection 1 to one who is employed in home office of a company or who is an officer, accountant, superintendent, or secretary of the company. Endicott Johnson Corp. v. Golde, 190 N.W.2d 752, 1971 N.D. LEXIS 115 (N.D. 1971).

A manufacturer’s representative was a “qualified witness” within meaning of this section as to orders which he personally prepared; he was also qualified as to invoices of merchandise shipped to retainer where he received duplicates of these invoices and knew how they were prepared. Endicott Johnson Corp. v. Golde, 190 N.W.2d 752, 1971 N.D. LEXIS 115 (N.D. 1971).

Trial court did not abuse its discretion by refusing to receive, as a part of the business records of the plaintiff’s doctor, a medical report in the form of a letter received from another physician who was dead at the time of the trial; the letter contained findings and conclusions which, if received, would have become a part of the record without affording the defendant an opportunity to cross-examine on the matters in issue. Munro v. Privratsky, 209 N.W.2d 745, 1973 N.D. LEXIS 144 (N.D. 1973).

DECISIONS UNDER PRIOR LAW

Admissible Evidence.

A looseleaf ledger account for merchandise sold, made under a double entry system from original memoranda of orders taken, was admissible in evidence. Fargo Mercantile Co. v. Johnson, 47 N.D. 304, 181 N.W. 953, 1921 N.D. LEXIS 102 (N.D. 1921); Spies v. Stang, 56 N.D. 674, 218 N.W. 860, 1928 N.D. LEXIS 186 (N.D. 1928).

In action by receiver of a bank against the president and cashier upon their bonds, books and records of the bank found in the possession of the president and the cashier were admissible in evidence against the surety. Baird v. National Sur. Co., 54 N.D. 91, 209 N.W. 204, 1926 N.D. LEXIS 119 (N.D. 1926).

Book entries made in the course of business, contemporaneous with transactions, were admissible on a showing that the entries were correct and made with authority, but without testimony covering these requirements the entries should not be received. Baldwin Piano Co. v. Wylie, 63 N.D. 216, 247 N.W. 397 (1933), decided prior to the enactment of this section.

Inadmissible Evidence.

Entries in books of a corporation were not evidence against a stockholder, in absence of proof showing that the stockholder knew of the entries and assented to them. HUGHES v. WACHTER, 61 N.D. 513, 238 N.W. 776, 1931 N.D. LEXIS 301 (N.D. 1931).

Invoices.

The invoices of goods sold and mailed to a defendant by the plaintiff’s broker were admissible to show the quantity of the goods delivered. Minot Flour Mill Co. v. Swords, 23 N.D. 571, 137 N.W. 828, 1912 N.D. LEXIS 132 (N.D. 1912).

Privileges.

—Medical Review Committees.

The privilege under former N.D.C.C. § 23-01-02.1, and for medical review committees under this section prior to its 1997 amendment, applied only to the “proceedings and records of” covered committees. Trinity Medical Ctr. v. Holum, 544 N.W.2d 148, 1996 N.D. LEXIS 54 (N.D. 1996).

Refreshing Recollection.

A witness could not be permitted to consult books as memoranda for the purpose of refreshing the recollection, and obtain original knowledge therefrom, and thereafter relate the information obtained. Dr. R. D. Eaton Chem. Co. v. Doherty, 31 N.D. 175, 153 N.W. 966, 1915 N.D. LEXIS 180 (N.D. 1915); Weigel v. Powers Elevator Co., 49 N.D. 867, 194 N.W. 113, 1923 N.D. LEXIS 32 (N.D. 1923).

Collateral References.

Criminal Law 431-447; Evidence 350-383(12).

29 Am. Jur. 2d, Evidence, §§ 1257 et seq.

23 C.J.S. Criminal Law, §§ 1145, 1151-1158, 1163, 1164, 1175; 32 C.J.S. Evidence, §§ 676-775.

Original entry: what constitutes books of original entry within rule as to admissibility of books of account, 17 A.L.R.2d 235.

Verification and authentication of slips, tickets, bills, invoices, etc., made in regular course of business, under the Uniform Business Records as Evidence Act, or under similar “Model Acts”, 21 A.L.R.2d 773.

Decedent: introduction of decedent’s books of account by his personal representative as waiver of “dead man’s statute”, 26 A.L.R.2d 1009.

Admissibility of hospital record relating to cause or circumstances of accident in incident in which patient sustained injury, 44 A.L.R.2d 553.

Admissibility of hospital record relating to physician’s opinion as to whether patient is malingering or feigning injury, 55 A.L.R.2d 1031.

Admissibility in civil action of electroencephalogram, electrocardiogram, or other record made by instrument used in medical test, or of report based upon such test, 66 A.L.R.2d 536.

Admissibility of party’s book accounts to prove loans or payments by person by or for whom they are kept, 13 A.L.R.3d 284.

Admissibility on issue of sanity of expert opinion based partly on medical, psychological, or hospital reports, 55 A.L.R.3d 551.

Admissibility under state law of hospital record relating to intoxication or sobriety of patient, 80 A.L.R.3d 456.

Admissibility of computerized private business records, 7 A.L.R.4th 8.

Admissibility of hospital records under Federal Business Records Act (28 USCS sec. 1732(a)), 9 A.L.R. Fed. 457.

Law Reviews.

Uniform Laws in North Dakota, 27 N.D. L. Rev. 313 (1951).

The Evolution of Medical Peer Review in North Dakota, 73 N.D. L. Rev. 477 (1997).

31-08-01.1. Certain copies of business and public records admissible in evidence.

If any business, institution, member of a profession or calling, or any department or agency of government in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation, or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic, optical disk, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether or not the original is in existence and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of the court. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original.

Source:

S.L. 1951, ch. 216, § 1; R.C. 1943, 1957 Supp., § 31-08011; S.L. 1963, ch. 247, § 1; 1991, ch. 624, § 1.

Notes to Decisions

Identification.

Photostatic copies of orders solicited by manufacturer’s representative were satisfactorily identified and thus admissible where they were in his handwriting, and he testified as to their identity and correctness; photostatic copies of invoices of shipments to retailer were satisfactorily identified where representative testified he had received duplicates of all invoices sent retailer and that copies were identical therewith; photostatic copies of orders placed directly with manufacturer and not seen by representative and photostatic copy of condensed statement of invoices prepared by manufacturer were not satisfactorily identified. Endicott Johnson Corp. v. Golde, 190 N.W.2d 752, 1971 N.D. LEXIS 115 (N.D. 1971).

Collateral References.

Authentication or verification of photograph as basis for introduction in evidence, 9 A.L.R.2d 899.

Enlarged photographs or photostatic copies, admissibility in evidence, 72 A.L.R.2d 308.

Best evidence rule, photographic representation of writing as primary or secondary evidence within, 76 A.L.R.2d 1356.

Admissibility of visual recording of event or matter giving rise to litigation or prosecution, 41 A.L.R.4th 812.

Admissibility of visual recording of event or matter other than that giving rise to litigation or prosecution, 41 A.L.R.4th 877.

Comparative Legislation.

Jurisdictions which have enacted the Uniform Photographic Copies of Business and Public Records as Evidence Act include:

Ala. Code §§ 12-21-44, 41-13-40.

Ark. Stat. Ann. § 16-46-101.

Cal. Evid. Code §§ 1550, 1551.

Colo. Rev. Stat. §§ 13-26-101 to 13-26-104.

Conn. Gen. Stat. § 52-180.

Ga. Code § 24-5-26.

Idaho Code §§ 9-417 to 9-419.

Iowa Code § 622.30.

Kan. Stat. Ann. § 60-469.

Ky. Rev. Stat. § 422.105.

Me. Rev. Stat. Ann. tit. 16, § 456.

Md. Cts. & Jud. Proc. Code Ann. § 10-102.

Mass. Gen. Laws Ann. ch. 233, § 79E.

Mich. Comp. Laws § 600.2147.

Minn. Stat. § 600.135.

Neb. Rev. Stat. §§ 25-12,112 to 25-12,114.

N.H. Rev. Stat. Ann. §§ 520:1 to 520:3.

N.J. Rev. Stat. §§ 2A:82-38 to 2A:82-40.

N.Y. Civ. Prac. Law § 4539.

N.C. Gen. Stat. §§ 8-45.1 to 8-45.4.

Pa. Stat. Ann. tit. 42, § 6109.

S.C. Code Ann. § 19-5-610.

S.D. Cod. Laws § 19-7-12.

Tenn. Code Ann. § 24-7-110.

Utah Code Ann. § 78-25-16.

Vt. Stat. Ann. tit. 12, § 1701.

V.I. Code Ann. tit. 5, § 956.

Va. Code Ann. § 8.01-391.

Wash. Rev. Code §§ 5.46.010 to 5.46.920.

W. Va. Code § 57-1-7b.

Wis. Stat. § 889.29.

31-08-01.2. Medical records authentication.

If appropriate safeguards have been taken to limit access to medical records in an electronic data storage system, a medical record in an electronic data storage system may be authenticated by an electronic signature or a computer-generated signature code.

Source:

S.L. 1993, ch. 337, § 1.

31-08-01.3. Medical records recording.

The recording of hospital medical records by an electronic image system or reproduction process is considered a photographic process. The making or recording of hospital medical records by electronic data processing systems is considered an original written record, and printout or other types of retrieved information in written or printed form must be treated as original records in all courts or administrative agencies for the purpose of its admissibility into evidence.

Source:

S.L. 1993, ch. 337, § 2.

31-08-02. Proof of witnessed written instruments.

In proving any written instrument or contract to which there is a subscribing witness, or to which there are two or more subscribing witnesses, it shall not be necessary to call any such witness or witnesses, but the instrument or contract may be proved, except for purposes of filing or recording the same, by the evidence by which an instrument or contract to which there is no subscribing witness may be proved. It shall not be permissible, in any case, to prove such instrument or contract by proof of the handwriting of the subscribing witness or witnesses, but in all cases such instrument or contract must be proved in the same manner as one having no subscribing witness whatever.

Source:

S.L. 1897, ch. 59, § 1; R.C. 1899, § 3888a; R.C. 1905, § 5334; S.L. 1907, ch. 139, § 2; C.L. 1913, § 5890; R.C. 1943, § 31-0802.

Cross-References.

Method of proving written instruments by proof of handwriting of party and of witness for recording purposes, see N.D.C.C. § 47-19-23.

Notes to Decisions

Authentication of Signature.

Signature on ordinary contract of guaranty was not authenticated by the signature of a subscribing witness; the validity and authenticity of the document was required to be proved by independent evidence. Timmerman Leasing v. Christianson, 525 N.W.2d 659, 1994 N.D. LEXIS 266 (N.D. 1994).

Common-Law Rule Abrogated.

The common-law rule that a written contract must be proved by subscribing witnesses has been abrogated by this section. McManus v. Commow, 10 N.D. 340, 87 N.W. 8, 1901 N.D. LEXIS 40 (N.D. 1901).

Document Witnessed by Officer of Foreign Country.

A power of attorney which purports to have been executed before a witness or a minor judicial officer in a foreign country is inadmissible without due proof of its execution. In re Markhus' Estate, 63 N.D. 566, 249 N.W. 310, 1933 N.D. LEXIS 207 (N.D. 1933).

Execution of Will.

This section was not intended to apply to proving execution of a will. In re Estate of Papineau, 396 N.W.2d 735, 1986 N.D. LEXIS 442 (N.D. 1986).

31-08-02.1. Handwriting admissible in evidence for comparison.

The handwriting of any person shall be competent evidence for the purpose of furnishing a standard of comparison, in all cases wherein the genuineness of a writing is questioned or the identity of the writer is sought to be established.

Source:

S.L. 1951, ch. 215, § 1; R.C. 1943, 1957 Supp., § 31-08021.

Notes to Decisions

Expert Testimony Unnecessary.

Since there is no common law in any case in which law is declared by code, this section prevails over any judicial pronouncements rendered prior to its enactment; where alleged assignor denied having assigned contracts, this section made it mandatory that exhibits bearing signatures which assignor said were not his be admitted for purpose of comparing signatures thereon with genuine signatures also admitted; statute contains no qualification and does not require that expert be first called to determine genuineness of questioned signatures before they be admitted for purposes of comparison. U. S. Indus. v. Borr, 157 N.W.2d 708, 1968 N.D. LEXIS 109 (N.D. 1968).

Collateral References.

Criminal Law 491(1, 2); Evidence 561-567.

29A Am Jur 2d Evidence § 1209.

32 C.J.S. Evidence, § 617.

Mode and degree of proof required to establish genuineness of handwriting offered as standard or exemplar for comparison with a disputed writing or signature, 41 A.L.R.2d 575.

Competency, as a standard of comparison to establish genuineness of handwriting, of writings made after controversy arose, 72 A.L.R.2d 1274.

Propriety of jury, or court sitting as trier of facts, making a comparison of a disputed writing with a standard produced in court, without the aid of an expert witness, 80 A.L.R.2d 272.

Amount of fees allowable to examiners of questioned documents or handwriting experts for serving and testifying, 86 A.L.R.2d 1283.

Interested witness, competency to testify to signature of handwriting of deceased, 13 A.L.R.3d 404.

Liability of owner or occupant of premises to fireman coming thereon in discharge of his duty, 11 A.L.R.4th 597.

Liability of owner or occupant of premises to police officer coming thereon in discharge of officer’s duty, 30 A.L.R.4th 81.

31-08-03. Proof of writing by admission of genuineness — Effect of refusal to give admission. [Repealed]

Superseded by N.D.R.Civ.P. 36, 37(c).

31-08-04. How copy or inspection of writing in hands of adverse party obtainable — Effect of refusal to give. [Repealed]

Superseded by N.D.R.Civ.P. 34.

31-08-05. Statistical tables admissible to establish life expectancy.

In all cases in which the probable duration of the natural life of any person from and after a particular age is material, standard statistical tables of mortality are competent evidence of such probable duration or expectation of life.

Source:

S.L. 1895, ch. 82, § 1; R.C. 1895, § 5702; R.C. 1899, § 5702; R.C. 1905, § 7303; C.L. 1913, § 7922; R.C. 1943, § 31-0805.

Notes to Decisions

Finding of Court.

Trial court finding that a certain mortality table was standard would not be disturbed in absence of any evidence to the contrary. Geier v. Tjaden, 74 N.W.2d 361, 1955 N.D. LEXIS 166 (N.D. 1955).

Introduction Not Necessary.

The introduction of such tables is not a prerequisite to the recovery of substantial damages. Ruehl v. Lidgerwood Rural Tel. Co., 23 N.D. 6, 135 N.W. 793, 1912 N.D. LEXIS 77 (N.D. 1912), Rober v. Northern Pac. Ry., 25 N.D. 394, 142 N.W. 22, 1913 N.D. LEXIS 124 (N.D. 1913).

Judicial Notice.

The courts may take judicial notice of such tables and instruct the jury accordingly. Ruehl v. Lidgerwood Rural Tel. Co., 23 N.D. 6, 135 N.W. 793, 1912 N.D. LEXIS 77 (N.D. 1912); Chambers v. Minneapolis, S. P. & S. S. M. Ry., 37 N.D. 377, 163 N.W. 824, 1917 N.D. LEXIS 91 (N.D. 1917); Schultz v. Winston & Newell Co., 68 N.D. 674, 283 N.W. 69, 1938 N.D. LEXIS 156 (N.D. 1938); Geier v. Tjaden, 74 N.W.2d 361, 1955 N.D. LEXIS 166 (N.D. 1955); Farmers Union Federated Cooperative Shipping Asso. v. McChesney, 251 F.2d 441, 1958 U.S. App. LEXIS 3572 (8th Cir. N.D. 1958).

The supreme court, on appeal, may take notice of the tables, though they have not been introduced in evidence. Schultz v. Winston & Newell Co., 68 N.D. 674, 283 N.W. 69, 1938 N.D. LEXIS 156 (N.D. 1938).

Judicial notice is taken of the fact that both the American Experience Table of Mortality and the Commissioner’s 1958 Standard Ordinary Table of Mortality are standard statistical tables of mortality within the definition of this section. Teegarden v. Dahl, 138 N.W.2d 668, 1965 N.D. LEXIS 101 (N.D. 1965).

Jury Instruction.

Statement by the trial court that deceased “had a life expectancy of 30.35 years” is not an accurate statement of the law in regard to this section. Larson v. Meyer, 135 N.W.2d 145 (N.D. 1965), overruled on other grounds, Hopkins v. McBane, 427 N.W.2d 85, 77 A.L.R.4th 391 (N.D. 1988), distinguished, Crosby v. Sande, 180 N.W.2d 164, 1970 N.D. LEXIS 141 (N.D. 1970).

Where the court instructs the jury that life expectancy tables are of restricted significance, and that the jury should also consider such factors as occupation, health habits, and activity of the person whose life expectancy is in question, and where the age from which life expectancy is computed is slightly less than the actual age of the person in question at the time of the trial, the error is insignificant and is not prejudicial. Teegarden v. Dahl, 138 N.W.2d 668, 1965 N.D. LEXIS 101 (N.D. 1965).

Collateral References.

Evidence 364.

29 Am. Jur. 2d, Evidence, § 111.

32 C.J.S. Evidence, § 719.

Admissibility of mortality tables in personal injury action as dependent upon showing of permanence of injury, 50 A.L.R.2d 419.

31-08-06. When instruments affecting real property, or records or copies of records thereof, admissible in evidence.

Every instrument conveying or affecting real property which has been acknowledged or proved and certified as provided by the laws of this state, together with the certificate of acknowledgment or proof, may be read in evidence in an action or proceeding without any further proof. The record of such instrument, or a duly authenticated copy of the record, may be read in evidence with the same effect as the original, on proof by affidavit or otherwise that the original is not in the possession or under the control of the party producing such record or copy.

Source:

C. Civ. P. 1877, §§ 493, 494; R.C. 1895, § 5696; R.C. 1899, § 5696; R.C. 1905, § 7297; C.L. 1913, § 7916; R.C. 1943, § 31-0806.

Cross-References.

Instrument entitled to record admissible in evidence, see N.D.C.C. § 47-19-45.

Notes to Decisions

Acknowledgment in Another State.

A written assignment of a real estate mortgage which was acknowledged before a notary public of another state was entitled to be read in evidence. Grandin v. Emmons, 10 N.D. 223, 86 N.W. 723, 1901 N.D. LEXIS 28 (N.D. 1901).

Possession of Original.

Neither a record nor a copy of a record of any conveyance of land is admissible against objection until there is proof by affidavit or otherwise that the original is not in the possession nor under the control of the party producing the record or copy. American Mortgage Co. v. Mouse River Live Stock Co., 10 N.D. 290, 86 N.W. 965, 1901 N.D. LEXIS 36 (N.D. 1901); Conrad v. Adler, 13 N.D. 199, 100 N.W. 722, 1904 N.D. LEXIS 44 (N.D. 1904).

Record Admissible Without Further Proof.

Section 5597, C.L. 1913 (N.D.C.C. § 47-19-45) permits the introduction in evidence of a record of a recorded contract for the sale of land without accounting for the nonproduction of the original contract. Farmers' Equity Exch. v. Blum, 39 N.D. 86, 166 N.W. 822, 1917 N.D. LEXIS 143 (N.D. 1917).

Record Is Secondary Evidence.

A record is secondary evidence as to the contents of a deed and if erroneous that fact may be shown, and relevant and competent extrinsic evidence may be introduced to establish the true contents of the lost instrument. 74 N.W.2d 497.

Sheriff’s Deed.

A sheriff’s deed on execution sale, duly acknowledged, is admissible in evidence and is prima facie evidence of grantee’s claim to the property described. Zimmerman v. Boynton, 59 N.D. 112, 229 N.W. 3, 1930 N.D. LEXIS 129 (N.D. 1930).

Collateral References.

Evidence 335.

32 C.J.S. Evidence, § 639.

31-08-07. Copies of statements to be provided — When statement admissible.

Every insurance adjuster, attorney, or any other person who takes the statement of an individual, who may be a party to possible litigation, for use or possible use in the preparation of or trying of a civil suit arising out of a tortious act, and whether said statement be in writing or by any device which records matters stated, other than depositions and court proceedings, shall provide a copy of the statement to the person from whom said statement was taken within thirty days of the making of the statement. No such statement shall be used directly or indirectly in connection with a civil action unless submitted to the person as required herein.

Source:

S.L. 1967, ch. 266, § 1.

Notes to Decisions

Action Against County.

Under N.D.C.C. § 32-12.1-04(1), actions for ordinary negligence of an employee of a county are to be brought against the county; in such instance, this section required a statement taken by plaintiff from deputy, who was at the accident scene, be provided to the deputy, or the county, or the purpose of the statute would be avoided. Olson v. Griggs County, 491 N.W.2d 725, 1992 N.D. LEXIS 215 (N.D. 1992).

Failure to Provide Copy of Statement.

Because deputy’s statement was not provided to him within 30 days, the language of this section prohibited it from being used directly or indirectly in connection with a civil action. Olson v. Griggs County, 491 N.W.2d 725, 1992 N.D. LEXIS 215 (N.D. 1992).

CHAPTER 31-08.1 Uniform Preservation of Private Business Records Act

31-08.1-01. Definitions.

As used in this chapter:

  1. “Business” includes every kind of private business, profession, occupation, calling, or operation of a private institution, whether for profit or nonprofit.
  2. “Record” or “business record” includes any book of account, voucher, document, canceled check, payroll, correspondence, record of sales, personnel, equipment production, report relating to any of these items, and any other business paper.
  3. “Reproduction” means a reproduction or durable medium for making a reproduction obtained by any photographic, photostatic, microfilm, microcard, miniature photographic, or other process that accurately reproduces or forms a durable medium for reproducing the original.

Source:

S.L. 1999, ch. 298, § 1.

31-08.1-02. Period of preservation.

Unless a specific period is designated by law for preservation, any business record that state law requires a person to keep or preserve may be destroyed after the expiration of three years from the making of the record without constituting an offense under state law. This section does not apply to any minute book of any corporation or to any record of sales or other transactions involving a weapon, poison, or other dangerous article or substance capable of use in the commission of a crime.

Source:

S.L. 1999, ch. 298, § 2.

31-08.1-03. Preservation of reproductions.

If in the course of regular business a person makes a reproduction of an original business record, the preservation of the reproduction constitutes compliance with any state law requiring that a business record be kept or preserved.

Source:

S.L. 1999, ch. 298, § 3.

31-08.1-04. Destruction of records by state officers.

This chapter does not diminish the authority of an officer of this state under existing law to permit the destruction of any business record.

Source:

S.L. 1999, ch. 298, § 4.

CHAPTER 31-09 Public Documents, Records, and Writings

31-09-01. Statutes, codes, decisions, when admissible as evidence of laws of foreign jurisdictions.

Books purporting to be printed or published under the authority of any other state, territory, or foreign country and to contain the statutes, codes, or other written law of such state, territory, or country, or proved to be admitted commonly in the tribunals of such state, territory, or country as evidence of the written law thereof, are admissible in this state as evidence of such law. The unwritten or common law of any other state, territory, or country may be proved as a fact by parol evidence and the books of reports of cases adjudged in the courts of any such state, territory, or country also may be admitted as presumptive evidence of such law.

Source:

C. Civ. P. 1877, § 488; R.C. 1895, § 5690; R.C. 1899, § 5690; R.C. 1905, § 7291; C.L. 1913, § 7910; R.C. 1943, § 31-0901.

Derivation:

Wait’s (N.Y.) Code, 426; Harston’s (Cal.) Practice, 1888, 1900.

Note.

The Uniform Proof of Statutes Act was withdrawn by the National Conference of Commissioners on Uniform State Laws in 1966.

Cross-References.

Determination of foreign law, see N.D.R.Civ.P. 44.1.

Evidence of foreign laws admissible, see N.D.C.C. § 31-10-04.

Judicial notice of foreign law, see N.D.C.C. § 31-10-03.

Presumption that foreign law is same as domestic law in absence of proof to the contrary, see N.D.C.C. § 31-11-03(39).

Notes to Decisions

Documents Made by Authority of Congress.

All publications of state papers, maps, and public documents, when made by authority of Congress, are as valid evidence as the originals from which they are copied, and may be introduced on mere inspection. McCall v. United States, 46 N.W. 608, 1 Dakota 307, 1876 Dakota LEXIS 1 (Dakota 1876); United States v. Adams, 9 N.W. 718, 2 Dakota 305, 1880 Dakota LEXIS 9 (Dakota 1880).

Proof of Foreign Laws Necessary.

Foreign law relied upon as the foundation for the admission as evidence of copies of records of births, deaths, and marriages must be proved as a fact, and oral testimony thereof is inadmissible under both the common law and the statute. In re Peterson's Estate, 22 N.D. 480, 134 N.W. 751, 1912 N.D. LEXIS 47 (N.D. 1912).

Collateral References.

Criminal Law 429; Evidence 331, 346-349.

29A Am Jur 2d Evidence §§ 1086, 1340.

32 C.J.S. Evidence, §§ 628, 629.

Admissibility, in prosecution in another state’s jurisdiction, of confession or admission made pursuant to plea bargain with state authorities, 90 A.L.R.4th 1133.

Law Reviews.

Uniform Laws in North Dakota, 27 N.D. L. Rev. 313 (1951).

31-09-01.1. Reciprocal enforcement of tax statutes.

The courts of this state shall recognize and enforce statutes concerning taxation constitutionally imposed by other states that extend like comity.

Source:

S.L. 1961, ch. 341, § 1.

31-09-02. When copies of records and proceedings of federal, state, and territorial courts admissible in evidence.

Copies of the records and judicial proceedings of any court of the United States, or of any state or territory of the United States, shall be admissible as evidence in this state when attested by the clerk with the seal of the court annexed, if there is a seal, together with a certificate of the judge, chief justice, or presiding magistrate that the attestation is in due form, and the said records and judicial proceedings so authenticated shall have such faith and credit given to them in every court within this state as they have by law or usage in the courts of the United States or of the state or territory from which they are taken.

Source:

C. Civ. P. 1877, § 489; R.C. 1895, § 5691; R.C. 1899, § 5691; R.C. 1905, § 7292; C.L. 1913, § 7911; R.C. 1943, § 31-0902.

Derivation:

Harston’s (Cal.) Practice, 1893, 1905.

Cross-References.

Finding of death and other facts under Federal Missing Persons Act prima facie evidence, see N.D.C.C. §§ 31-11-04.1, 31-11-04.2.

Notes to Decisions

Best Evidence.

Parol evidence of the decision of a federal court is inadmissible when no reason is shown why the best evidence is not offered. Calvin v. Tibbs, Hutchins & Co., 17 N.D. 600, 119 N.W. 39 (N.D. 1908).

When authenticated in the manner provided by the statute, copies become the best evidence of the records of the court of a foreign state. Whittier v. Leifert, 72 N.D. 528, 9 N.W.2d 402, 1943 N.D. LEXIS 88 (N.D. 1943).

Decree of United States Court.

An exemplified copy of a decree of a United States court, setting aside taxes, was properly received by the trial court. Leach v. Rolette County, 29 N.D. 593, 151 N.W. 768, 1915 N.D. LEXIS 36 (N.D. 1915).

Foreign Justice’s Judgment.

A judgment rendered by a justice of the peace of a sister state cannot be proved in this state by an authenticated copy of the record of such justice’s court. Strecker v. Railson, 16 N.D. 68, 111 N.W. 612, 1907 N.D. LEXIS 13 (N.D. 1907).

Full Faith and Credit.

This state is required to give full faith and credit to the judgment of a foreign court of competent jurisdiction with respect to past due alimony, and establish such judgment and decree in the state. Weldy v. Weldy, 74 N.D. 165, 20 N.W.2d 583, 1945 N.D. LEXIS 65 (N.D. 1945).

Where defendant participated in divorce proceedings in another state and was afforded full opportunity to contest the jurisdictional issues and where the decree could not be attacked collaterally in the courts of the other state, the decree was not subject to collateral attack in this state. Schriock v. Schriock, 95 N.W.2d 577, 1959 N.D. LEXIS 76 (N.D. 1959).

Proof by Copy.

Judicial records, if in existence, must be proved by copy in preference to recollection testimony. Whittier v. Leifert, 72 N.D. 528, 9 N.W.2d 402, 1943 N.D. LEXIS 88 (N.D. 1943).

Collateral References.

Criminal Law 429(2); Evidence 332.

30 Am. Jur. 2d, Evidence, §§ 904 et seq.

32 C.J.S. Evidence, §§ 629-636.

Admissibility, in action on foreign judgment, of copy of foreign judgment as affected by identity of parties, 60 A.L.R.2d 1024.

31-09-03. Stenographic report or transcript as evidence.

Whenever the testimony of a witness at a trial or hearing which was reported stenographically or by an electronic court reporting system is admissible in evidence at a trial, it may be proved by the transcript thereof duly certified by the person who reported or transcribed the testimony.

Source:

R.C. 1943, § 31-0903; S.L. 1983, ch. 372, § 1.

31-09-04. How judicial record of foreign country proved.

A judicial record of a foreign country may be proved by the attestation of the clerk with the seal of the court annexed, if there is a clerk and seal, or of the legal keeper of the record, with the seal of office annexed, if there is a seal, together with the certificate of the chief judge or presiding magistrate that the person making the attestation is the clerk of the court, or the legal keeper of the record, and in either case, that the signature of such person is genuine and that the attestation is in due form. The signature of the chief judge or presiding magistrate must be authenticated by the certificate of the minister, ambassador, or a consul, vice consul, or consular agent of the United States in such foreign country.

Source:

R.C. 1895, § 5692; R.C. 1899, § 5692; R.C. 1905, § 7293; C.L. 1913, § 7912; R.C. 1943, § 31-0904.

31-09-05. Certified transcript of judge’s record admissible in courts of county.

A transcript of the docket record of a county judge in an action or proceeding, when certified by the judge or the judge’s successor in office, shall be evidence to prove the facts contained in that transcript in any action or other proceeding in the county wherein the record was made.

Source:

C. Civ. P. 1877, § 491; R.C. 1895, § 5694; R.C. 1899, § 5694; R.C. 1905, § 7295; C.L. 1913, § 7914; R.C. 1943, § 31-0905; S.L. 1981, ch. 320, § 80.

Derivation:

Harston’s (Cal.) Practice, 1905, 1921.

31-09-06. Certified transcript of county judge’s record admissible in courts of other counties.

A transcript of the docket record of a county judge in an action or proceeding, when certified by the judge or the judge’s successor in office, may be read in evidence in another county if there is attached thereto a certificate of the clerk of the district court of the county in which such record was made, under the seal of the court, to the effect that the person certifying such transcript was at the date thereof a county judge of the county, and in addition, if such docket record was made by another, that such other at the time of the making of the same was a county judge of the county.

Source:

C. Civ. P. 1877, § 492; R.C. 1895, § 5695; R.C. 1899, § 5695; R.C. 1905, § 7296; C.L. 1913, § 7915; R.C. 1943, § 31-0906; S.L. 1981, ch. 320, § 81.

31-09-07. Clerk of court — Certificate to official acts of judge. [Repealed]

Repealed by S.L. 1991, ch. 326, § 203.

31-09-08. Entries in official books or records constitute prima facie evidence.

Entries in public or other official books or records made in the performance of duty by a public officer of this state, or by another person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts stated therein.

Source:

C. Civ. P. 1877, § 495; R.C. 1895, § 5697; R.C. 1899, § 5697; R.C. 1905, § 7298; C.L. 1913, § 7917; R.C. 1943, § 31-0908; S.L. 1957, ch. 222, § 1; 1957 Supp., § 31-0908.

Derivation:

Harston’s (Cal.) Practice, 1920.

Collateral References.

Criminal Law 429; Evidence 325.

29A Am Jur 2d Evidence § 1381.

32 C.J.S. Evidence, § 626.

31-09-09. Entries made by or by direction of officers or boards constitute prima facie evidence.

An entry made by an officer, or board of officers, or under the direction and in the presence of either in the course of official duty, is prima facie evidence of the facts stated in such entry.

Source:

C. Civ. P. 1877, § 496; R.C. 1895, § 5698; R.C. 1899, § 5698; R.C. 1905, § 7299; C.L. 1913, § 7918; R.C. 1943, § 31-0909.

Derivation:

Harston’s (Cal.) Practice, 1926.

Cross-References.

Radar evidence prima facie proof of speed, see N.D.C.C. § 39-03-15.

31-09-10. Method of proving official documents.

Official documents may be proved as follows:

  1. The acts of the executive of this state, or of a sister state, or of the United States, by a copy of the records of the state department thereof, certified by the head of such department, or they may be proved by publications thereof printed by order of the legislative assembly, or of Congress, or of either house thereof.
  2. The proceedings of the legislative assembly of this state, or of a sister state, or of Congress, by the journals of such body, or of either house thereof, or by copies thereof printed by the order of such legislative body, or either house thereof, or certified by the clerk thereof.
  3. The acts of the executive or the proceedings of the legislature of a foreign country, by publications purporting to be made by their authority and to contain a record of such acts, or commonly received in that country as such, or by a copy of the official record of such act certified under the seal of the country or sovereign, or by a recognition thereof in some public act of the executive of the United States.
  4. The acts of a municipal corporation of this state, or of a board or department thereof, by a copy of the official record of such acts, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such corporation and to contain a record of such acts.
  5. Documents of any other class in this state, by the original or by a copy, certified by the legal keeper thereof.
  6. Documents of any other class in a sister state, by the original or by a copy, certified by the legal keeper thereof, together with the certificate of the secretary of state, judge of the supreme, superior, or county court, or mayor of a city of such state, that the copy is duly certified by the officer, who at the date of the certificate had the legal custody of the original.
  7. Documents in the departments of the United States government, by the certificate of the legal custodian thereof.

Source:

R.C. 1895, § 5699; R.C. 1899, § 5699; R.C. 1905, § 7300; C.L. 1913, § 7919; R.C. 1943, § 31-0910.

Notes to Decisions

Breathalyzer Operator Certificate.

A certificate of qualification of a breathalyzer operator signed by the state toxicologist is hearsay, and not admissible into evidence unless authenticated in the manner provided by law. State v. Ghylin, 222 N.W.2d 864, 1974 N.D. LEXIS 155 (N.D. 1974).

Breath Test Operator Records.

Although N.D.C.C. § 39-20-05(4) directs that a copy of the checklist and test record from a breath test operator be certified, the statute does not designate who must certify the copy; it has long been the law in this state that an official record may be proved by the original or by a copy certified by the legal keeper thereof; certification by the custodian of a public record is sufficient. Frost v. North Dakota Dep't of Transp., 487 N.W.2d 6, 1992 N.D. LEXIS 114 (N.D. 1992).

Nonjudicial Records of Foreign Country.

Before copies of nonjudicial foreign records are admissible, it must appear that the originals are the official records of the foreign country, and a proper foundation must be laid for proving the laws making them official records. In re Peterson's Estate, 22 N.D. 480, 134 N.W. 751, 1912 N.D. LEXIS 47 (N.D. 1912).

Proper Certification Required.

A certified copy of an official record is essentially secondary in character and the right to introduce such written copy as primary evidence exists only by virtue of statute, and to authorize admission it must be certified in the manner required by the statute. Sykes v. Beck, 12 N.D. 242, 96 N.W. 844 (1903), distinguished, Darling v. Purcell, 13 N.D. 288, 100 N.W. 726 (1904) and State v. Hopkins, 64 N.D. 301, 252 N.W. 48, 1933 N.D. LEXIS 277 (N.D. 1933).

Statutory Method of Proof Not Exclusive.

The statute does not prescribe an exclusive method of proving the public documents therein mentioned which, when properly identified, are the best evidence, and the statute did not intend to preclude other proof. Harmening v. Howland, 25 N.D. 38, 141 N.W. 131, 1913 N.D. LEXIS 103 (N.D. 1913).

United States Government Records.

A copy of the records in the office of the collector of internal revenue was properly proved when there was attached thereto a certificate by the collector as to its correctness and authenticity. State v. Kilmer, 31 N.D. 442, 153 N.W. 1089, 1915 N.D. LEXIS 193 (N.D. 1915).

A certified copy of the appointment of the receiver of a bank was admissible where certified by the acting comptroller of the currency. First Nat'l Holding Co. v. Moore, 60 N.D. 27, 232 N.W. 310, 1930 N.D. LEXIS 201, 1930 N.D. LEXIS 202 (N.D. 1930).

Warehouseman’s Bond.

There was a sufficient compliance with the statute where a warehouseman’s bond was certified by the secretary of the public service commission as “a true copy of the bond now on file in the office of” the commission. State ex rel. Ertelt v. Daniels, 35 N.D. 5, 159 N.W. 17, 1916 N.D. LEXIS 136 (N.D. 1916).

Collateral References.

Criminal Law 429, 430; Evidence 366(2).

29A Am Jur 2d Evidence § 1187 et seq.

32 C.J.S. Evidence, § 643.

Airplane accident: admissibility, in personal injury or death action arising out of airplane accident, of governmental report of investigation, 23 A.L.R.2d 1360, 1363.

Mutilations, alterations, and deletions as affecting admissibility in evidence of public record, 28 A.L.R.2d 1443.

Carriers: admissibility of official weight certificate in action against rail or motor freight carrier for loss through weight deficiency of goods shipped, 39 A.L.R.2d 325, 329.

Welfare department: admissibility of records or report of welfare department or agency relating to payment or financial condition of particular person, 42 A.L.R.2d 752.

Police report: admissibility of report of police or other public officer or employee, or portions of report, as to cause of or responsibility for accident, injury to person, or damage to property, 69 A.L.R.2d 1148.

Weather reports and records as evidence, 57 A.L.R.3d 713.

Safety: admissibility in evidence, on issue of negligence, of codes or standards of safety issued or sponsored by governmental body or by voluntary association, 58 A.L.R.3d 148.

31-09-11. Official reports or findings of fact admissible in evidence. [Repealed]

Superseded by N.D.R.Ev. 803.

31-09-12. Cross-examination of person making reports or findings or person furnishing information used therein. [Repealed]

Superseded by N.D.R.Ev. 803.

CHAPTER 31-10 Judicial Notice

31-10-01. Evidence of facts judicially noted not required — How judges familiarized with such facts. [Repealed]

Superseded by N.D.R.Crim.P. 26; N.D.R.Ev. 201.

31-10-02. Facts subject to judicial notice. [Repealed]

Superseded by N.D.R.Crim.P. 26, 26.1; N.D.R.Ev. 201.

31-10-03. Foreign laws — Those judicially noted — How court familiarized with — Reviewable.

Every court of this state shall take judicial notice of the common law and statutes of every state, territory, and other jurisdiction of the United States. Such court may inform itself of the laws in such manner as it may deem proper and may call upon counsel to aid it in obtaining such information. The determination of such laws shall be made by the court and not by the jury and shall be reviewable.

Source:

S.L. 1937, ch. 196, §§ 1 to 3; R.C. 1943, § 31-1003.

Note.

This section is derived from the Uniform Judicial Notice of Foreign Law Act.

The Uniform Judicial Notice of Foreign Law Act was withdrawn by the National Conference of Commissioners on Uniform State Laws in 1966.

Cross-References.

Determination of foreign law, see N.D.R.Civ.P. 44.1.

Presumption that foreign law is same as domestic law in absence of proof to the contrary, see N.D.C.C. § 31-11-03(39).

Notes to Decisions

Evidence.

A copy of a foreign statute need not be in evidence before it is judicially noticed. City of Mandan v. Mertz, 399 N.W.2d 298, 1987 N.D. LEXIS 236 (N.D. 1987).

Section 40-18-19.

Where judicial notice of a municipal ordinance is required under N.D.C.C. § 40-18-19, it is not necessary that a copy of the ordinance be placed in evidence, although it is essential that the trial court be supplied with the necessary information. City of Mandan v. Mertz, 399 N.W.2d 298, 1987 N.D. LEXIS 236 (N.D. 1987).

Procedure and Practice.

Because the special administrator did not plead or present the applicable Texas law to the court, and did not request the court to take judicial notice of the applicable Texas law, the district court did not err by declining to inform itself of Texas law. For the same reasons, the district court did not err by declining to request counsels’ aid in obtaining the applicable Texas law Joyce v. Joyce, 2020 ND 75, 2020 N.D. LEXIS 108 (April 6, 2020).

DECISIONS UNDER PRIOR LAW

Foreign Law Presumed Same.

Where no proof of the law of another state was offered, and the court was not asked to take judicial notice thereof pursuant to statute, the law of such state would be presumed to be the same as that of North Dakota. Haggard v. First Nat'l Bank, 72 N.D. 434, 8 N.W.2d 5, 1943 N.D. LEXIS 80 (N.D. 1943).

Collateral References.

Criminal Law 304 (11); Evidence 34, 35.

29 Am Jur 2d Evidence § 117 et seq.

31 C.J.S. Evidence, §§ 18-20.

Law Reviews.

Uniform Laws in North Dakota, 27 N.D. L. Rev. 313 (1951).

Comparative Legislation.

Colo. Rev. Stat. 1963, § 52-1-7.

Del. Code Ann., tit. 10, §§ 4313, 4314.

Fla. Stat. Ann., § 92.031.

Hawaii Rev. Stat. 1968, § 623-1 et seq.

Ill. Rev. Stat., ch. 51, §§ 48g to 48n.

Ind. Burns’ Stat., §§ 2-4801 to 2-4807.

Kan. Gen. Stat., §§ 60-2878 to 60-2880.

Ky. Rev. Stat., §§ 422.081 to 422.087.

La. Stat. Ann. — C.C.P., art. 1391.

Me. Rev. Stat. 1954, ch. 113, §§ 135 to 140.

Md. Code 1957, art. 35, §§ 47 to 53.

Minn. Stat. Ann., §§ 599.04 to 599.10.

Mo. Vernon’s Ann. Stat., §§ 490.070 to 490.120.

Mont. Rev. Codes 1947, §§ 93-501-1 to 93-501-8.

Neb. Rev. Stat. 1943, §§ 25-12,101 to 25-12,107.

N.J. Stat. Ann., §§ 2A:82-27 to 2A:82-33.

Ohio Rev. Code, §§ 2317.44 to 2317.46.

Okla. Stat. Ann., tit. 12, §§ 541 to 547.

Ore. Rev. Stat., §§ 41.420 to 41.480.

Pa. Purdon’s Stat., tit. 28, §§ 291 to 297.

R.I. Gen. Laws 1956, §§ 9-19-2 to 9-19-8.

S.C. Code 1952, §§ 26-61 to 26-68.

S.D.C.L. 1967, § 19-8-1 et seq.

Tenn. Code Ann., §§ 24-607 to 24-612.

Virgin Islands Code, tit. 5, §§ 791-794.

Wash. Rev. Code, §§ 5.24.010 to 5.24.060.

Wis. Stat. Ann., § 328.01.

Wyo. Stat. 1957, §§ 1-178, 1-180 to 1-185.

31-10-04. Evidence of foreign laws admissible — Notice to adverse party of reliance on foreign laws.

Any party may also present to the trial court any admissible evidence of the laws in another jurisdiction, but, to enable a party to offer evidence of such laws or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.

Source:

S.L. 1937, ch. 196, § 4; R.C. 1943, § 31-1004.

Note.

This section is derived from the Uniform Judicial Notice of Foreign Law Act.

Cross-References.

Pleading official documents or acts, see N.D.R.Civ.P. 9(d).

Statutes, codes, and decisions are admissible as evidence of laws of foreign jurisdictions, see N.D.C.C. § 31-09-01.

31-10-05. Foreign laws not judicially noted constitute issue for court.

The law of a jurisdiction other than those jurisdictions referred to in section 31-10-03 shall be an issue for the court, but shall not be subject to the provisions concerning judicial notice contained in such section.

Source:

S.L. 1937, ch. 196, § 5; R.C. 1943, § 31-1005.

Note.

This section is derived from the Uniform Judicial Notice of Foreign Law Act.

CHAPTER 31-11 Presumptions, Maxims, and Estoppels

31-11-01. Presumptions — When controvertible — When jury bound to follow. [Repealed]

Superseded by N.D.R.Crim.P. 26; N.D.R.Ev. 301.

31-11-02. Conclusive presumptions.

The following presumptions, and no others, are conclusive:

  1. A malicious and guilty intent from the deliberate commission of an unlawful act for the purpose of injuring another.
  2. The truth of the facts from a recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title, but this rule does not apply to a recital of a consideration.
  3. The judgment or order of a court when declared by the laws of this state to be conclusive, but such judgment or order shall be alleged in the pleadings, if there is an opportunity to do so. If there is no such opportunity, the judgment or order may be used as evidence.
  4. The issue of a wife cohabiting with her husband who is not impotent is presumed indisputably to be legitimate.
  5. Any other presumption which by statute expressly is made conclusive.

Source:

S.L. 1897, ch. 110, § 2; R.C. 1899, § 5713b; R.C. 1905, § 7316; C.L. 1913, § 7935; R.C. 1943, § 31-1102.

Cross-References.

Legitimacy of children, see N.D.C.C. § 14-05-21.

Notes to Decisions

Presumption of Legitimacy.

The provision contained in the last sentence of section 4422, C.L. 1913 (N.D.C.C. § 14-09-03) is intended to render a husband and wife competent to testify to matters tending to establish the illegitimacy of a child, subject only to the conclusive presumption of this section. State v. Fury, 53 N.D. 333, 205 N.W. 877, 1925 N.D. LEXIS 84 (N.D. 1925).

Rebuttable Presumption.

When a beneficiary sought to contest a trust modification, it was an abuse of discretion to enter summary judgment dismissing the beneficiary’s contest on grounds the 120 day contest period expired before suit was filed without giving the beneficiary an opportunity to conduct discovery because the presumption that the beneficiary received notice of the modification proceedings when delivered to the beneficiary’s last known address was rebuttable, as the presumption was not a statutory conclusive presumption, and the 120 day limitation period did not begin until receipt of notice, so the beneficiary was entitled to conduct discovery on why notice was sent to a prior address, especially since the limitation period was relatively short. Herman v. Widmer, 2019 ND 248, 934 N.W.2d 874, 2019 N.D. LEXIS 265 (N.D. 2019).

Recital in Written Instrument.

A receipt which recites “Received a full settlement of contract made by A” for certain real estate is open to explanation and proof, and is not conclusive since it recites no facts and the nature of the settlement is nowhere stated. Coyle v. Due, 28 N.D. 400, 149 N.W. 122, 1914 N.D. LEXIS 125 (N.D. 1914).

Collateral References.

Evidence 53-89.

29 Am. Jur. 2d, Evidence, §§ 198 et seq.

31A C.J.S. Evidence, §§ 114-157.

Divorce: recognition as to marital status of foreign divorce decree attacked on ground of lack of domicil, since Williams decision, 1 A.L.R.2d 1385, 28 A.L.R.2d 1303.

Presumption as to validity of second marriage, 14 A.L.R.2d 7.

Presumptions as to connivance by one spouse at other’s adultery, 17 A.L.R.2d 342, 351.

Homicide: inference of malice or intent to kill where killing is by blow without weapon, 22 A.L.R.2d 854.

Description or designation of land in contract or memorandum of sale under statute of frauds, presumption or inference in aid of, 23 A.L.R.2d 6.

Wills: presumptions and burden of proof as to interlineations and changes appearing on face of will, 34 A.L.R.2d 619, 662.

Presumptions and burden of proof as to testamentary intent of writer of letter, 40 A.L.R.2d 736.

Presumption against existence of power of trustee to retain nonlegal investments, 47 A.L.R.2d 187.

Presumption of legitimacy, or of paternity, of child conceived or born before marriage, 57 A.L.R.2d 729.

Construction and effect of “bad check” statute with respect to check in payment of pre-existing debt, 59 A.L.R.2d 1159.

Mortgage: presumptions as to terms of mortgage or of accompanying note or bond contemplated by real estate sales contract as affecting right to specific performance, 60 A.L.R.2d 251.

Default judgment: burden of proof on issues involved in former default judgment asserted as res judicata, 77 A.L.R.2d 1410, 1426.

Presumption upon presumption: modern status of the rules against basing an inference upon an inference or a presumption upon a presumption, 5 A.L.R.3d 100.

Reasonable expectation of payment as affecting offense under “worthless check” statutes, 9 A.L.R.3d 719.

Race or color of child as admissible in evidence on issue of legitimacy or paternity or as basis of rebuttal or exception to presumption of legitimacy, 32 A.L.R.3d 1303.

Presumption of legitimacy of child born after annulment, divorce, or separation, 46 A.L.R.3d 158.

Valid foreign divorce as affecting local order previously entered for separate maintenance, 49 A.L.R.3d 1266.

Application of “bad check” statute with respect to postdated checks, 52 A.L.R.3d 464.

Who may dispute presumption of legitimacy of child conceived or born during wedlock, 90 A.L.R.3d 1032.

Admissibility and weight of blood-grouping tests in disputed paternity cases, 43 A.L.R.4th 579.

31-11-03. Disputable presumptions.

All presumptions other than those set forth in section 31-11-02 are satisfactory if uncontradicted. They are denominated disputable presumptions and may be contradicted by other evidence. The following are of that kind:

  1. That a person is innocent of crime or wrong.
  2. That an unlawful act was done with an unlawful intent.
  3. That a person intends the ordinary consequences of that person’s voluntary act.
  4. That a person takes ordinary care of that person’s own concerns.
  5. That evidence willfully suppressed would be adverse if produced.
  6. That higher evidence would be adverse if inferior is produced.
  7. That money paid by one to another was due the latter.
  8. That a thing delivered by one to another was due the latter.
  9. That an obligation delivered up to the debtor has been paid.
  10. That former rents or installments have been paid when a receipt for the latter is produced.
  11. That things which a person possesses are owned by that person.
  12. That a person is the owner of property from exercising acts of ownership over it, or from common reputation of that person’s ownership.
  13. That a person in possession of an order on that person for the payment of money, or the delivery of a thing, has paid the money or delivered the thing accordingly.
  14. That a person acting in a public office was appointed regularly to it.
  15. That official duty has been performed regularly.
  16. That a court or judge, acting as such, whether in this state or any other state or country, was acting in the lawful exercise of that court’s or judge’s lawful jurisdiction.
  17. That a judicial record, when not conclusive, still does determine or set forth the rights of the parties correctly.
  18. That all matters within an issue were laid before the jury and passed upon by it, and, in like manner, that all matters within a submission to arbitration were laid before the arbitrator and passed upon by the arbitrator.
  19. That private transactions have been fair and regular.
  20. That the ordinary course of business has been followed.
  21. That a promissory note or bill of exchange was given or endorsed for a sufficient consideration.
  22. That an endorsement of a negotiable promissory note or bill of exchange was made at the time and place of making the note or bill.
  23. That a writing is dated truly.
  24. That a letter duly directed and mailed was received in the regular course of the mail.
  25. Identity of person from identity of name.
  26. That a person not heard from in seven years is dead.
  27. That acquiescence followed from a belief that the thing acquiesced in was conformable to the right or fact.
  28. That things have happened according to the ordinary course of nature and the ordinary habits of life.
  29. That persons acting as copartners have entered into a contract of copartnership.
  30. That a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage.
  31. That a thing once found to exist continues as long as is usual with things of that nature.
  32. That the law has been obeyed.
  33. That a document or writing more than thirty years old is genuine when the same generally has been acted upon since as genuine by persons having an interest in the question, and its custody has been satisfactorily explained.
  34. That a printed and published book of statutes or other records or reports purporting to be printed or published by public authority was so printed or published.
  35. That a printed and published book purporting to contain reports of cases adjudged in the tribunals of the state or country where the book is published contains correct reports of such cases.
  36. That a trustee or other person whose duty it was to convey real property to a particular person actually has conveyed to heirs, when such presumption is necessary to perfect the title of such person or the person’s successor in interest.
  37. That the owner of any land who, without a reservation of the owner’s right, consents to the uninterrupted use by the public of such land for a burial ground for five years intends to dedicate it to the public for that purpose.
  38. That there was a good and sufficient consideration for a written contract.
  39. That the foreign law is the same as the law of this state.
  40. A domicile once acquired is presumed to continue until it is shown to have been changed.

Source:

S.L. 1897, ch. 110, § 3; R.C. 1899, § 5713c; R.C. 1905, § 7317; C.L. 1913, § 7936; S.L. 1933, ch. 213, § 1; R.C. 1943, § 31-1103; S.L. 1971, ch. 325, § 1.

Cross-References.

Cause of uncertainty in contracts, see N.D.C.C. § 9-07-19.

Conversion of personalty, amount of damage, see N.D.C.C. § 32-03-23.

Criminal cases, effect of presumption, see N.D.C.C. § 12.1-01-03.

Damages, see N.D.C.C. ch. 32-03.

Damages inadequate for breach of agreement to convey real property and adequate for breach of agreement to transfer personal property, see N.D.C.C. § 32-04-09.

Domicile of wife following that of husband inapplicable in divorce case, see N.D.C.C. § 14-05-18.

Fee simple title from grant, see N.D.C.C. § 47-10-13.

Gift in view of death, see N.D.C.C. § 47-11-10.

Good faith in the execution of instruments, see N.D.C.C. § 1-04-04.

Grant being delivered at its date, see N.D.C.C. § 47-09-06.

Innocence of defendant in criminal action, see N.D.C.C. §§ 12.1-01-03, 29-21-05.

Intent to defraud, see N.D.C.C. § 9-10-04.

Intent to make equitable agreement, see N.D.C.C. § 32-04-18.

Interest on money lent, see N.D.C.C. § 47-14-03.

Negligence from livestock being killed by railroad, see N.D.C.C. § 36-21-12.

Negligence on part of depositary, see N.D.C.C. § 60-01-24.

Obligation being joint, see N.D.C.C. § 9-01-07.

Ownership of real estate to center of highway, see N.D.C.C. § 47-01-16.

Possession of real property under legal title, see N.D.C.C. § 28-01-07.

Promise being joint and several, see N.D.C.C. § 9-01-04.

Renewal of lease of realty, see N.D.C.C. §§ 47-16-06, 47-16-15.

Term of hiring of lodgings, see N.D.C.C. § 47-16-19.

Term of lease of realty, see N.D.C.C. § 47-16-05.

Value of title instruments, see N.D.C.C. § 32-03-34.

Violation of game and fish laws, see N.D.C.C. § 20.1-01-14.

Notes to Decisions

Constitutionality.
—Unlawful Act Done With Unlawful Intent.

Presumption of subsection 2 that an unlawful act was done with unlawful intent violates the directive of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979), that a jury instruction that the law presumes that a person intends the ordinary consequences of his voluntary act violates the fourteenth amendment requirement that the state prove any element of a criminal offense by a reasonable doubt, as the jury may interpret it as conclusive and as shifting the burden of proof. State v. Sheldon, 301 N.W.2d 604, 1980 N.D. LEXIS 342 (N.D. 1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 204, 1981 U.S. LEXIS 1398 (U.S. 1981).

Jury instruction identical to that given in State v. Sheldon, 301 N.W.2d 604 (1980), cert. denied, 450 U.S. 1002, 101 S. Ct. 1711, 68 L. Ed. 2d 204 (1981) deprived defendant, charged with deliberate homicide, of his right to due process of law, necessitating reversal and retrial. State v. Trieb, 315 N.W.2d 649, 1982 N.D. LEXIS 231 (N.D. 1982).

Jury instruction in criminal prosecution which stated that “It is presumed, however, that an unlawful act was done with an unlawful intent” did not violate the due process clause of the fourteenth amendment and was superfluous and surplusage where the crime being prosecuted did not include intent as an element. State v. Chyle, 297 N.W.2d 409, 1980 N.D. LEXIS 292 (N.D. 1980).

Bias.

The existence of a generalized attitude prior to a hearing is not necessarily a disqualifying bias. Opdahl v. Zeeland Pub. Sch. Dist. No. 4, 512 N.W.2d 444, 1994 N.D. LEXIS 50 (N.D. 1994).

Circumstantial Evidence to Show Fraud.

Under subsection 19 of this section the disputable presumption that private transactions have been fair and reasonable is created and where circumstantial evidence is relied upon to show fraud, it is not sufficient that circumstances raise a suspicion of fraud. Hablas v. Armour & Co., 270 F.2d 71, 1959 U.S. App. LEXIS 4737 (8th Cir. N.D. 1959).

Consideration for Note.

In an action on a negotiable promissory note, where the maker alleges want of consideration, the burden is on him to prove that defense by a preponderance of the evidence. First State Bank v. Radke, 51 N.D. 246, 199 N.W. 930, 1924 N.D. LEXIS 181 (N.D. 1924).

Continuation of Condition.

Where there was a question as to the number of electors needed to sign a petition, it was reasonable to assume that there were as many electors in the city at the time of the filing of the petition as there were registered at the last general election. State ex rel. Alexander v. Evanson, 64 N.D. 603, 255 N.W. 98, 1934 N.D. LEXIS 240 (N.D. 1934).

Continuation of Ownership.

Where the trial court found that material was furnished under an agreement that defendant was the owner of the premises when the agreement was made, it was presumed that the ownership continued as long as is usual with things of that nature. McCaull-Webster Elevator Co. v. Adams, 39 N.D. 259, 167 N.W. 330, 1918 N.D. LEXIS 26 (N.D. 1918).

Court Order.

Where county court filed its order which allowed and settled the reconstructed account of plaintiff’s estate, and the order was publicly filed, the order is presumed regular and correct until shown otherwise by evidence. In re Estate of Kjorvestad, 375 N.W.2d 160, 1985 N.D. LEXIS 408 (N.D. 1985).

Death Presumed Accidental.

In an action on a policy insuring against death by “violent, external, and accidental means”, the insurer has the burden of establishing that insured’s death was due to suicide or the intentional acts of another person within the exception to the policy. Svihovec v. Woodmen Accident Co., 69 N.D. 259, 285 N.W. 447, 1939 N.D. LEXIS 148 (N.D. 1939).

Delivery of Instrument.

A chattel mortgage is presumed to have been delivered on the day of its date. Schweinber v. Great W. Elevator Co., 9 N.D. 113, 81 N.W. 35, 1899 N.D. LEXIS 128 (N.D. 1899).

A deed produced at the trial and offered in evidence by the grantee is presumed to have been delivered to such grantee on the day of its date, and the date is presumed to be the true date. Leonard v. Fleming, 13 N.D. 629, 102 N.W. 308, 1905 N.D. LEXIS 2 (N.D. 1905); McMillen v. Chamberland, 71 N.D. 65, 298 N.W. 767, 1941 N.D. LEXIS 137 (N.D. 1941).

Facts Not Supplied by Presumptions.

The statute prescribing denominational presumptions does not supply the place of material averments of facts omitted from the complaint. Swenson v. Greenland, 4 N.D. 532, 62 N.W. 603, 1895 N.D. LEXIS 49 (N.D. 1895).

Presumptions are indulged to supply the place of facts; they are never allowed against ascertained and established facts. When these appear, presumptions disappear. Schillerstrom v. Schillerstrom, 75 N.D. 667, 32 N.W.2d 106, 1948 N.D. LEXIS 93 (N.D. 1948).

Factual Basis for Presumption.

Before a presumption can be said to apply, the facts giving rise to the presumption must be established by credible evidence; facts necessary to give rise to the presumption that a letter was received in the regular course of the mail are facts indicating that the letter was duly directed and mailed. Western Tire v. Skrede, 307 N.W.2d 558, 1981 N.D. LEXIS 304 (N.D. 1981).

Foreign Law.

When no proof is offered of the law of another state and the court has not been asked to take judicial notice thereof, the law of such state will be presumed to be the same as the law of this state. Haggard v. First Nat'l Bank, 72 N.D. 434, 8 N.W.2d 5, 1943 N.D. LEXIS 80 (N.D. 1943).

Fraudulent Security Interest.

Trial court’s finding that debtors fraudulently filed UCC statements and security agreements purporting to grant a security interest in farm collateral to certain relatives was not clearly erroneous, where debtors failed to prove that there had been any consideration to support the security agreements. Production Credit Ass'n v. Rub, 475 N.W.2d 532, 1991 N.D. LEXIS 162 (N.D. 1991), cert. denied, 502 U.S. 1118, 112 S. Ct. 1235, 117 L. Ed. 2d 469, 1992 U.S. LEXIS 1012 (U.S. 1992).

Honesty.

The law presumes in favor of integrity of conduct, and absent proof to the contrary it is presumed that men act fairly and honestly. Cunningham v. Great N. Ry., 73 N.D. 315, 14 N.W.2d 753, 1944 N.D. LEXIS 65 (N.D. 1944).

Where a transaction called in question is equally capable of two constructions, one that it is fair and honest and one that it is dishonest, then the law is that the fair and honest construction must prevail. Hoffer v. Crawford, 65 N.W.2d 625, 1954 N.D. LEXIS 97 (N.D. 1954); Hendrickson v. Syverson, 82 N.W.2d 827, 1957 N.D. LEXIS 121 (N.D. 1957).

Defendants, who had purchased an interest in realty, had the right to rely on the presumption that the dealing between their vendor and his grantor had been fair and honest. Rosenquist v. Harris, 138 F. Supp. 21, 1956 U.S. Dist. LEXIS 3722 (D.N.D. 1956).

Identical Conflicting Presumptions.

Where both drivers involved in automobile collision suffered from retrograde amnesia, both were entitled to presumption of due care, but presumption could be applied as to neither in view of fact that identical conflicting presumptions balance and cancel each other. Thompson v. Nettum, 163 N.W.2d 91, 1968 N.D. LEXIS 97 (N.D. 1968).

Identity of Names.

The presumption that identity of names indicates identity of persons will make admissible in a trial for the maintenance of a liquor nuisance a government license for the sale of liquor issued to a person of the same name as the defendant, without preliminary proof of the identity of the person. State v. Kilmer, 31 N.D. 442, 153 N.W. 1089, 1915 N.D. LEXIS 193 (N.D. 1915).

Innocence Presumed.

It was presumed that the vendee of seed grain used such seed for the purpose agreed upon where any other use would have constituted a misdemeanor. Fried v. Olsen, 22 N.D. 381, 133 N.W. 1041, 1911 N.D. LEXIS 62 (N.D. 1911).

In an action by an insurer against a beneficiary to cancel a life policy, on the ground that the insured’s answers to questions in the application for reinstatement were knowingly false, good faith of the insured was presumed. New York Life Ins. Co. v. Hansen, 71 N.D. 383, 2 N.W.2d 163, 1941 N.D. LEXIS 180 (N.D. 1941).

Legal Residence.

The burden of proving a change of legal residence is on the person alleging the change. Keating v. Keating, 399 N.W.2d 872, 1987 N.D. LEXIS 248 (N.D. 1987).

Plaintiff must prove three elements to establish defendant’s change of residence: (1) abandonment of the old domicile, (2) actual removal to a new domicile, and (3) intent to change from the old to the new and to remain at the new domicile. Keating v. Keating, 399 N.W.2d 872, 1987 N.D. LEXIS 248 (N.D. 1987).

Mail.

Evidence presented by driver concerning his nonreceipt of notice of suspension mailed to him by the drivers license division failed to rebut the presumption of delivery of notice. State v. Tininenko, 371 N.W.2d 762, 1985 N.D. LEXIS 363 (N.D. 1985).

Defendant failed to rebut the presumption that a letter duly directed and mailed was received by him in the regular course of the mail. First Bank v. Neset, 1997 ND 4, 559 N.W.2d 211, 1997 N.D. LEXIS 10 (N.D. 1997).

Divorce defendant failed to rebut presumption that a duly directed and mailed letter to him from his former attorney advising him of divorce hearing date was received. Monson v. Monson, 583 N.W.2d 825, 1998 ND App 9, 1998 N.D. App. LEXIS 8 (N.D. Ct. App. 1998).

Driver’s failure to notify Department of Transportation (DOT) of his change of address within ten days of moving, as required by N.D.C.C. § 39-06-20, did not preclude him from presenting evidence to rebut the presumption that he had received a duly mailed DOT notice of opportunity for hearing of proposed license suspension. State v. Egan, 1999 ND 59, 591 N.W.2d 150, 1999 N.D. LEXIS 64 (N.D. 1999).

In prosecution for driving under suspension, certified Department of Transportation record that an order of suspension and notice of opportunity for a hearing was mailed to the driver was sufficient to create a presumption that the notice was received, and that presumption was not rebutted by the testimony of the driver and his mother that the notice was never received. City of Jamestown v. Neumiller, 2000 ND 11, 604 N.W.2d 441, 2000 N.D. LEXIS 12 (N.D. 2000).

Husband was not entitled to relief on the N.D.R.Civ.P. 60(b) motion to vacate entry of a default divorce judgment that was entered after the husband appeared at a first hearing in the husband’s dissolution of marriage case, but did not appear at the second hearing. Although the husband claimed that the husband had not received notice of the second hearing, which had to be provided to the husband pursuant to N.D.R.Civ.P. 55(a)(3), the notice of that hearing had been sent to the same address as all of the other pleadings that had been sent to the husband and the husband did not rebut the presumption under N.D.C.C. § 31-11-03(24) that the husband received notice of the hearing in the regular course of the mail. Warnke v. Warnke, 2011 ND 212, 806 N.W.2d 606, 2011 N.D. LEXIS 209 (N.D. 2011).

Marriage Presumed Valid.

Where a marriage in fact has been proved, a presumption arises that such marriage is in all things valid. Johnson v. Johnson, 104 N.W.2d 8, 1960 N.D. LEXIS 76 (N.D. 1960).

The presumption of marriage arising from a man and woman’s deportment as husband and wife, buttressed by drivers’ licenses, a social security card, tax returns, real property conveyances, ration books, insurance applications, and affidavits of persons acquainted with the parties, was not overcome by certificates from the state where the marriage ceremony was purported to have taken place to the effect that no record could be found of such marriage, especially when one of the certificates was unsigned and could not have been evidence in court. Fancher v. North Dakota Workmen's Compensation Bureau, 123 N.W.2d 105, 1963 N.D. LEXIS 105 (N.D. 1963).

Notice.

Where an ALJ and workforce safety and insurance (WSI) found that a claimant had never received the mailed notice of intention to discontinue/reduce his benefits (NOID), thus rebutting the presumption of receipt raised by N.D.C.C. § 31-11-03(24), WSI’s termination of his ongoing disability benefits violated due process as he had not received prior notice or an opportunity to respond and his benefits were reinstated as of the date of their termination. Rojas v. Workforce Safety & Ins., 2005 ND 147, 703 N.W.2d 299, 2005 N.D. LEXIS 182 (N.D. 2005).

Under the Supreme Court of North Dakota's case law, a defendant may present evidence showing nonreceipt of a notice of opportunity for a hearing on a license suspension proceeding or evidence of nonreceipt of the order of suspension, but the State is also entitled to present evidence regarding the credibility of the defendant's claim. The Supreme Court's decisions recognize the issue of receipt is a factual issue for the trier-of-fact and credible evidence of a defendant's actual knowledge of a suspension is sufficient to support a conviction for driving under suspension. State v. Brown, 2018 ND 31, 906 N.W.2d 120, 2018 N.D. LEXIS 30 (N.D. 2018).

Ordinary Care Presumed.

Both ordinary care of his own concern and the ordinary course of business require the owner of a chattel mortgage to cause the same to be registered. Farmers State Bank v. First Nat'l Bank, 51 N.D. 225, 199 N.W. 961, 1924 N.D. LEXIS 186 (N.D. 1924).

In an action for the death of a pedestrian, an instruction that a rebuttable presumption existed that the person killed in the accident was within the exercise of ordinary care and diligence at the time was reversible error where the testimony of eyewitnesses to the conduct of the pedestrian was undisputed. HAUSKEN v. COMAN, 66 N.D. 633, 268 N.W. 430, 1936 N.D. LEXIS 211 (N.D. 1936).

Payment of Delivered Obligation Presumed.

Where it was shown that, when defendant executed a deed, his obligations to the plaintiff on a note and mortgage were satisfied as required by the deed, the deed was in fact what it purported to be and was not a mortgage. State v. Crum, 70 N.D. 177, 292 N.W. 392, 1940 N.D. LEXIS 158 (N.D. 1940).

Payment of Obligations.

Where both the redemptioner and debtor, through mutual ignorance of their legal rights, regarded the certificate of redemption merely as an evidence of debt in addition to the debt secured by the mortgage, the possession of such certificate by the debtor is prima facie evidence that the same had been discharged and canceled. Franklin v. Jameson-Wohler, 15 N.D. 613, 109 N.W. 56, 1906 N.D. LEXIS 77 (N.D. 1906).

Performance of Official Duty.

The presumption is that public officers do as the law and their duty require them to do. Pine Tree Lumber Co. v. City of Fargo, 12 N.D. 360, 96 N.W. 357 (1903), decided prior to the enactment of § 40-22-36 N.D.C.C.

An endorsement stamped on the back of a summons and complaint showing the time of filing is sufficient evidence that they were delivered to the clerk at the time stated in the endorsement. Galehouse v. Minneapolis, S. P. & S. S. M. Ry., 22 N.D. 615, 135 N.W. 189, 1912 N.D. LEXIS 56 (N.D. 1912) (n.s.) (1912).

The presumption exists that election officials properly performed their duties and did not count for either candidate any ballot from which it was impossible to determine the elector’s choice. McDonald v. Koths, 63 N.D. 716, 249 N.W. 706, 1933 N.D. LEXIS 227 (N.D. 1933).

It was presumed that a notary public and the parties to an instrument acted fairly and honestly and not otherwise. Jolley v. Begeman, 65 N.D. 205, 256 N.W. 912, 1934 N.D. LEXIS 187 (N.D. 1934).

It will be presumed that official duty has been regularly performed and evidence is necessary to overcome that presumption. Coulter v. Ramberg, 79 N.D. 208, 55 N.W.2d 516, 1952 N.D. LEXIS 113 (N.D. 1952); Wilson v. Divide County, 76 N.W.2d 896, 1956 N.D. LEXIS 121 (N.D. 1956).

Where the water conservation commission has entered an order creating a water conservation district, it will be presumed that the commission made the investigation and findings required by former N.D.C.C. § 61-16-02 before entering the order. Snortland v. Nelson County, 123 N.W.2d 288, 1963 N.D. LEXIS 109 (N.D. 1963).

The disputable presumption of regularity pursuant to subsection (15) of this section applies to the official acts of the state toxicologist. State v. Vande Hoven, 388 N.W.2d 857, 1986 N.D. LEXIS 324 (N.D. 1986).

Evidence is required to overcome presumption that official duty has been performed regularly, as by trial counsel for an accused. State v. Berger, 148 N.W.2d 331, 1966 N.D. LEXIS 155 (N.D. 1966), overruled, State v. Himmerick, 499 N.W.2d 568, 1993 N.D. LEXIS 77 (N.D. 1993).

In workers compensation case, where claimant challenged lack of due process at administrative hearing due to bias, bureau was presumed to have regularly performed its duty and afforded claimant due process at hearing by refusing to allow any possible previous bias or pre-judgment to interfere with its decision based upon evidence presented at hearing. Froysland v. North Dakota Workers Compensation Bureau, 432 N.W.2d 883, 1988 N.D. LEXIS 233 (N.D. 1988).

District court properly dismissed a faculty member’s breach of contract action against a university and its president because they substantially complied with their contractual obligations in terminating the faculty member’s employment, and the separation of powers doctrine did not permit judicial examination of the president’s mental process in arriving at his decision, and the president’s initial decision and his response to the faculty member’s objection could only be interpreted as an adoption of the Standing Committee’s findings and conclusions that clear and convincing evidence supported the faculty member’s termination for cause. Cuozzo v. State, 2019 ND 95, 925 N.W.2d 752, 2019 N.D. LEXIS 100 (N.D. 2019).

It was error to reverse the Department of Transportation’s (Department) hearing officer’s decision suspending a driver’s license because a notation in the driver’s driving record kept by the Department was adequate to find the driver’s license was previously suspended within seven years of the driver’s most recent arrest, justifying an enhanced suspension, as the Department’s regularly kept driving records, and specifically notations, only had to be “readily ascertainable” to the Department’s director and designees, and the driver did not rebut the Department’s interpretation of the driver’s driving record. French v. Dir., 2019 ND 172, 930 N.W.2d 84, 2019 N.D. LEXIS 177 (N.D. 2019).

Person Acting in Public Office.

A person who has acted in a public office is presumed to have been regularly appointed thereto. State v. Scott, 37 N.D. 105, 163 N.W. 810, 1917 N.D. LEXIS 86 (N.D. 1917).

Trial court was not clearly erroneous when it determined that the presumption as it related to the Attorney General was rebutted and, therefore, could not act to cancel the allegedly contradicting presumption of the county recorder performing her regular duty because the long delay in filing suit evidenced the fact that the duty to bring a corporate farming enforcement action was not being performed regularly; because one presumption had been rebutted, there could be no conflict. Wayne Stenehjem ex rel. State v. Nat'l Audubon Soc., Inc., 2014 ND 71, 844 N.W.2d 892, 2014 N.D. LEXIS 73 (N.D. 2014).

Trial court’s finding that the State failed to rebut the presumption that the county recorder performed her official duty was not clearly erroneous because there was evidence to support it, and it was not induced by an erroneous view of the law; the trial court applied the presumption, based on the facts, that the county recorder’s office performed its official duty and submitted a nonprofit conservation organization’s deed to the Attorney General. Wayne Stenehjem ex rel. State v. Nat'l Audubon Soc., Inc., 2014 ND 71, 844 N.W.2d 892, 2014 N.D. LEXIS 73 (N.D. 2014).

Possession of Property.

Where plaintiff was engaged in threshing grain for others with a certain threshing machine in his possession and under his control, in the absence of evidence to the contrary, it was established prima facie that he was the owner or lessee of the machine. Hiam v. Andrews Grain Co., 48 N.D. 250, 183 N.W. 1016, 1921 N.D. LEXIS 32 (N.D. 1921).

Where grain, described in a mortgage executed by defendant, was in defendant’s possession at the time it was seized by an officer in aid of foreclosure proceedings, defendant was estopped from rebutting the presumption of ownership arising from his possession. Bingenheimer Mercantile Co. v. Sack, 50 N.D. 381, 195 N.W. 969, 1923 N.D. LEXIS 106 (N.D. 1923).

Where the character of a party’s possession of property is a material issue, good faith statements and acts made and done by such party while in possession are admissible to characterize or explain it. Derrick v. Klein, 64 N.D. 438, 253 N.W. 70, 1934 N.D. LEXIS 218 (N.D. 1934).

In a criminal prosecution for engaging in the liquor traffic, it was not error to instruct the jury that the law presumes that a person has possession or control of the things contained in the building or room which he occupies. State v. Stern, 64 N.D. 593, 254 N.W. 765, 1934 N.D. LEXIS 238 (N.D. 1934).

The presumption of ownership of a duly executed deed in possession of the grantee and of delivery to the grantee is not overcome by failure to record the instrument for ten years after its execution. Cox v. McLean, 66 N.D. 696, 268 N.W. 686, 1936 N.D. LEXIS 216 (N.D. 1936).

Preexisting Knowledge.

In a proceeding before a board of education, preexisting knowledge and judgment about a teacher do not necessarily constitute a disqualifying bias and do not mean board members’ minds are irrevocably closed on a subject. Instead, board members are presumed to regularly perform their official duties. Opdahl v. Zeeland Pub. Sch. Dist. No. 4, 512 N.W.2d 444, 1994 N.D. LEXIS 50 (N.D. 1994).

Rebuttable Nature.

A disputable presumption will not stand as against a matter of fact to the contrary which is admitted on demurrer. Bowman County v. McIntyre, 52 N.D. 225, 202 N.W. 651, 1925 N.D. LEXIS 24 (N.D. 1925).

Receipt of Mail.

It will be presumed that a letter duly directed and mailed was received in the regular course of business. This is a rebuttable presumption, and the question of whether it has been sufficiently rebutted is one for the jury. Myra Found. v. Harvey, 100 N.W.2d 435, 1959 N.D. LEXIS 125 (N.D. 1959).

Disputable presumption, that a letter duly directed and mailed was received in the regular course of business, was bolstered by the fact that an all-terrain vehicle (ATV) rider’s name and the ATV’s vehicle identification number were not included in lists of undelivered materials that were maintained by ATV manufacturers, who had mailed out supplemental warnings and materials to ATV owners; presumption was rebuttable, however, and a question of material fact sufficient to bar the entry of summary judgment was raised when the rider denied receiving the supplemental material. Eberts v. Kawasaki Motors Corp., U.S.A., 306 F. Supp. 2d 890, 2004 U.S. Dist. LEXIS 3287 (D.N.D. 2004).

Regularity of Private Transactions.

It is presumed that private transactions have been fair and regular and that the law has been obeyed. Stark County v. Koch, 107 N.W.2d 701, 1961 N.D. LEXIS 64 (N.D. 1961).

Rules of Road.

Where negligence must be proved in automobile case, it is not sufficient to rely upon presumption that everyone will obey the rules of road since driver may not fully disregard other cars on highway and has duty to avoid collision with another automobile even if such automobile is violating rules of road. Thompson v. Nettum, 163 N.W.2d 91, 1968 N.D. LEXIS 97 (N.D. 1968).

State Toxicologist.
—In General.

The supreme court has applied a presumption of regularity to official acts of the state toxicologist, but has never applied this presumption to testing officers; to do so would effectively eliminate the requirement that the state highway commissioner prove fair administration. Salter v. Hjelle, 415 N.W.2d 801, 1987 N.D. LEXIS 438 (N.D. 1987).

—Alcohol Related Proceeding.

The presumption that the state toxicologist has sufficiently trained all certified operators, adopted accurate and reliable methods of chemical analysis, and listed all devices that should be approved does not remove the prosecution’s obligation to prove that a certified operator tested the sample using approved methods and devices. State v. Zimmerman, 516 N.W.2d 638, 1994 N.D. LEXIS 114 (N.D. 1994).

Waiver of Constitutional Rights.

Insofar as a guilty plea is itself a conviction, it constitutes a relinquishment of three important constitutional rights: the privilege against self-incrimination, the right to trial by jury, and the right of confrontation. The court cannot presume a waiver of these three important constitutional rights from a silent record. State v. Orr, 375 N.W.2d 171, 1985 N.D. LEXIS 409 (N.D. 1985).

Waiver of Right to Counsel.

The trial court erred in presuming that defendant had validly waived the right to counsel prior to pleading guilty when the record did not affirmatively indicate such a waiver. State v. Orr, 375 N.W.2d 171, 1985 N.D. LEXIS 409 (N.D. 1985).

Collateral References.

Evidence 53-89.

29 Am. Jur. 2d, Evidence, §§ 198 et seq.

31A C.J.S. Evidence, §§ 114-157.

Owner’s consent to operation of automobile, overcoming presumption or inference of, 5 A.L.R.2d 196.

Incompetency: presumptions and burden of proof as to unadjudged incompetency which prevents running of statute of limitations, 9 A.L.R.2d 964, 967.

Identity of name: presumption from identity of name of identity of person for purposes of statute as to enhanced punishment in cases of prior conviction, 11 A.L.R.2d 870, 884-887.

Insurance: burden of proof as to exception in insurance policy as to loss or damage caused by dishonesty of employee, 12 A.L.R.2d 236.

Insurance: burden of proof as to clause in life, accident, or health policy excluding or limiting liability in case of insured’s use of intoxicants or narcotics, 13 A.L.R.2d 987, 1013.

Infant, presumptions concerning damages in action for personal injury resulting in death of, 14 A.L.R.2d 485.

Custody of child, presumption and burden of proof as to what would be to child’s best interest in case involving nonresident’s right to, 15 A.L.R.2d 432.

Tax, execution, or judicial sale, presumptions and burden of proof in actions involving purchase by attorney of property of client at or through, 20 A.L.R.2d 1280, 1306.

Measurement: presumption and burden of proof of accuracy of scientific and mechanical instruments for measuring speed, temperature, time, and the like, 21 A.L.R.2d 1200.

Burden of proof of identity of person or thing where object, specimen, or part is taken from a human body, as basis for admission of testimony or report of expert or officer based on such object, specimen or part, 21 A.L.R.2d 1216, 1219.

Declaratory judgment acts, burden of proof in actions under general, 23 A.L.R.2d 1243.

Foreign law: presumption as to foreign law as affected by Uniform Judicial Notice of Foreign Law Act, 23 A.L.R.2d 1437, 1441.

Wills: presumption as to intent of testator in attempted physical alteration of will after execution, 24 A.L.R.2d 514, 554.

Divorce: presumption of intercourse and condonation in action for divorce or separation on ground of cruel treatment, 32 A.L.R.2d 107.

Automobiles: presumption of continuing situation on issue of who, among occupants of motor vehicle, was driving it at time of accident, in absence of direct testimony by survivors or eyewitnesses, 32 A.L.R.2d 988, 992.

Aircraft pilot: presumption, in absence of direct testimony by survivors or witnesses, as to who, among occupants of plane, was piloting it at time of accident, 36 A.L.R.2d 1290.

Child custody: presumptions and burden of proof with respect to right to custody of child upon death of custodian appointed by divorce decree, 39 A.L.R.2d 258.

Labor union’s status or authority as bargaining agent, rebuttal of presumption of continuity of, 42 A.L.R.2d 1415, 1423.

Will, rebuttal of presumption as to satisfaction of debt by legacy or devise to creditor, 47 A.L.R.2d 1140.

Employee: presumptions and inferences as to scope of employment of automobile salesman, 53 A.L.R.2d 631.

Presumptions as to authority of attorney to dismiss or otherwise terminate action, 56 A.L.R.2d 1290, 1295.

Wills: presumption of intention of testator with respect to disposal of property belonging to devisee or legatee so as to put latter to election, 60 A.L.R.2d 736, 740.

Foreign judgment: presumptions and burden of proof, in action on foreign judgment, as to identity of parties, 60 A.L.R.2d 1024.

Gift of debt to debtor, burden of proof and presumption as to, 63 A.L.R.2d 259.

Estate by entirety in personal property, presumption as to, 64 A.L.R.2d 8.

Railroad crossing, presumption of due care by pedestrian allegedly killed by condition of surface of, 64 A.L.R.2d 1199, 1222.

Employment: presumption of continuance of relationship of employer and employee so as to justify comment, in argument of civil case, on adversary’s failure to call employee as witness, 68 A.L.R.2d 1072, 1078.

Zoning: presumption that members of municipal authority approving or adopting zoning ordinance acted with proper motives, 71 A.L.R.2d 568, 570.

Foreign law: presumption as to the law of foreign countries, 75 A.L.R.2d 529.

Liability of manufacturer or seller of product sold in container or package for injury caused by container or packaging, 81 A.L.R.2d 229.

Exclusiveness of remedy provided by contract, presumption of intention of parties as to, 84 A.L.R.2d 322, 324.

View by jury: burden of proof and presumptions as to claimed change of conditions since accident or incident, asserted as ground for denying view by jury in civil personal injury or death action, 85 A.L.R.2d 512, 519.

Conversion or loss of commercial paper, presumption and burden of proof as to damages for, 85 A.L.R.2d 1349.

Effect of presumption as evidence or upon burden of proof, where controverting proof is introduced, 5 A.L.R.3d 19.

Presumption upon presumption: modern status of the rules against basing an inference upon an inference or a presumption upon a presumption, 5 A.L.R.3d 100.

Relation back of presumption of continuance of condition of property, 7 A.L.R.3d 1302.

Conflict of laws as to presumptions and burden of proof concerning facts of civil case, 35 A.L.R.3d 289.

Drugs and narcotics: validity and construction of statute creating presumption or inference of intent to sell from possession of specified quantity of illegal drugs, 60 A.L.R.3d 1128.

Who may dispute presumption of legitimacy of child conceived or born during wedlock, 90 A.L.R.3d 1032.

Fact that passenger in vehicle is owner as affecting right to recover from driver for injuries to, or death of, passenger incurred in consequence of driver’s negligence, 21 A.L.R.4th 459.

Proceeds or derivatives of real property held by entirety as themselves held by entirety, 22 A.L.R.4th 459.

Homicide as precluding taking under will or by intestacy, 25 A.L.R.4th 787.

Fact that passenger in negligently operated motor vehicle is owner as affecting passenger’s liability to or rights against third person—modern cases, 37 A.L.R.4th 565.

Recovery of damages for grief or mental anguish resulting from death of child—modern cases, 45 A.L.R.4th 234.

Adverse presumption or inference based on party’s failure to produce or examine family member other than spouse — modern cases, 80 A.L.R.4th 337.

Adverse presumption or inference based on party’s failure to produce or examine witness with employment relationship to party — modern cases, 80 A.L.R.4th 405.

Adverse presumption or inference based on state’s failure to produce or examine informant in criminal prosecution — modern cases, 80 A.L.R.4th 547.

Adverse presumption or inference based on state’s failure to produce or examine law enforcement personnel — modern cases, 81 A.L.R.4th 872.

Adverse presumption or inference based on party’s failure to produce or examine transferor, transferee, broker, or other person allegedly involved in transaction at issue — modern cases, 81 A.L.R.4th 939.

Burden of proof in civil action for using unreasonable force in making arrest as to reasonableness of force used, 82 A.L.R.4th 598.

Parental rights of man who is not biological or adoptive father of child but was husband or cohabitant of mother when child was conceived or born, 84 A.L.R.4th 655.

Authority of attorney to compromise action—modern cases, 90 A.L.R.4th 326.

Ratification of attorney’s unauthorized compromise of action, 5 A.L.R.5th 56.

31-11-04. Presumption of death as to estates in real property.

If any person upon whose life any estate in real property depends remains without the United States, or is absent in the state or elsewhere for seven years together, such person shall be accounted dead naturally in any action or proceeding concerning such property in which the person’s death shall come in question, unless it is proved affirmatively that the person was alive during that time.

Source:

C. Civ. P. 1877, § 498; R.C. 1895, § 5701; R.C. 1899, § 5701; R.C. 1905, § 7302; C.L. 1913, § 7921; R.C. 1943, § 31-1104.

Cross-References.

Death certificates, joint tenant, prima facie evidence of termination of estate held, see N.D.C.C. § 47-19-06.

Notes to Decisions

Absence Must Be Unexplained.

A presumption of death of a person arises only upon an unexplained, absence from his last known home for seven years. Wright v. Jones, 23 N.D. 191, 135 N.W. 1120, 1912 N.D. LEXIS 81 (N.D. 1912).

Collateral References.

Death 2.

22A Am Jur 2d Death §§ 422-427.

25A C.J.S. Death, §§ 8-14.

Necessity and sufficiency of showing of search and inquiry by one relying on presumption of death from seven years’ absence, 99 A.L.R.2d 307.

31-11-04.1. Finding of death under Federal Missing Persons Act prima facie evidence.

Written findings of presumed death, made by the secretary of war, the secretary of the navy, or other officer or employee of the United States authorized to make such findings, pursuant to the Federal Missing Persons Act, as now or hereafter amended, or a duly certified copy of such finding, shall be received in any court, office, or other place in this state as prima facie evidence of the death of the person therein found to be dead, and the date, circumstances, and place of the person’s disappearance.

Source:

S.L. 1945, ch. 195, § 1; R.C. 1943, 1957 Supp., § 31-11041.

Note.

The Federal Missing Persons Act, which was compiled as 50 USCS Appx.1001 et seq., was repealed by PL 89-554, § 8 (a), Sept. 6, 1966. The present federal law on payments to missing civilian officers and employees is compiled as 5 USCS 5561 et seq.; the present federal law on payments to missing uniformed personnel is compiled as 37 USCS 551 et seq.

31-11-04.2. Other findings under Federal Missing Persons Act as prima facie evidence.

An official written report or record or duly certified copy thereof, that a person is missing, missing in action, interned in a neutral country, or beleaguered, besieged, or captured by an enemy, or is dead, or is alive, made by an officer or an employee of the United States authorized by the Act referred to in section 31-11-04.1 or by any other law of the United States to make same, shall be received in any court, office, or other place in this state as prima facie evidence that such person is missing, missing in action, interned in a neutral country, beleaguered or captured by an enemy, or is dead, or is alive, as the case may be.

Source:

S.L. 1945, ch. 195, § 2; R.C. 1943, 1957 Supp., § 31-11042.

31-11-04.3. Reports and copies deemed signed by authorized officer.

For the purposes of sections 31-11-04.1 and 31-11-04.2, any finding, report, or record, or duly certified copy thereof, purporting to have been signed by such an officer or employee of the United States, shall prima facie be deemed to have been signed and issued by such an officer or employee pursuant to law, and a person signing same shall prima facie be deemed to have acted within the scope of the person’s authority. If a copy purports to have been certified by a person authorized by law to certify the same, such certified copy shall be prima facie evidence of the person’s authority so to certify.

Source:

S.L. 1945, ch. 195, § 3; R.C. 1943, 1957 Supp., § 31-11043.

31-11-05. Maxims of jurisprudence — How to be used and applied — List.

The maxims of jurisprudence set forth in this section are not intended to qualify any of the provisions of the laws of this state, but to aid in their just application:

  1. When the reason of a rule ceases so should the rule itself.
  2. When the reason is the same the rule should be the same.
  3. A person must not change that person’s purpose to the injury of another.
  4. Anyone may waive the advantage of a law intended solely for that person’s benefit, but a law established for a public reason cannot be contravened by a private agreement.
  5. One must so use one’s own rights as not to infringe upon the rights of another.
  6. One who consents to an act is not wronged by it.
  7. Acquiescence in error takes away the right of objecting to it.
  8. A person cannot take advantage of that person’s own wrong.
  9. A person who fraudulently has dispossessed himself or herself of a thing may be treated as if the person still had possession.
  10. A person who can and does not forbid that which is done on that person’s behalf is deemed to have bidden it.
  11. No one should suffer by the act of another.
  12. One who takes the benefit must bear the burden.
  13. One who grants a thing is presumed to grant also whatever is essential to its use.
  14. For every wrong there is a remedy.
  15. Between those who are equally in the right or equally in the wrong the law does not interpose.
  16. Between rights otherwise equal the earliest is preferred.
  17. No person is responsible for that which no person can control.
  18. The law helps the vigilant before those who sleep on their rights.
  19. The law respects form less than substance.
  20. That which ought to have been done is to be regarded as done in favor of one to whom and against one from whom performance is due.
  21. That which does not appear to exist is to be regarded as if it did not exist.
  22. The law never requires impossibilities.
  23. The law neither does nor requires idle acts.
  24. The law disregards trifles.
  25. Particular expressions qualify those which are general.
  26. Contemporaneous exposition is in general the best.
  27. The greater contains the less.
  28. Superfluity does not vitiate.
  29. That is certain which can be made certain.
  30. Time does not confirm a void act.
  31. The incident follows the principal, not the principal the incident.
  32. An interpretation which gives effect is preferred to one which makes void.
  33. Interpretation must be reasonable.
  34. When one of two innocent persons must suffer by the act of a third, the one by whose negligence it happened must be the sufferer.

Source:

Civ. C. 1877, §§ 2062 to 2096; R.C. 1895, §§ 5071 to 5105; R.C. 1899, §§ 5071 to 5105; R.C. 1905, §§ 6656 to 6690; C.L. 1913, §§ 7243 to 7277; R.C. 1943, § 31-1105.

Derivation:

Cal. Civ. C., 3509-3543.

Cross-References.

Common law, see N.D.C.C. §§ 1-01-03 to 1-01-06.

Interpretation of statutes, see N.D.C.C. § 1-02-01 et seq.

Notes to Decisions

Subsection 1.

Where a new trial is granted by a judge other than the one who tried the case, the reason for the rule that the order is to be sustained, although the trial court would have been justified in reaching a different conclusion, and although the appellate court might deem a different conclusion the better one, does not exist and the rule itself should not be rigidly followed. Braithwaite v. Aiken, 2 N.D. 57, 49 N.W. 419, 1891 N.D. LEXIS 30 (N.D. 1891).

Where the conditions under which the law says that money shall not be subject to garnishment had ceased to exist, the money of a defendant was subject to garnishment. State v. Blum, 58 N.D. 549, 226 N.W. 694, 1929 N.D. LEXIS 249 (N.D. 1929).

Where the remedy by appeal did not exist in a case, the reason for denying a writ of review did not exist, and one who was beneficially interested in the matter was entitled to a writ of certiorari. Nelson v. Ecklund, 68 N.D. 724, 283 N.W. 273, 1938 N.D. LEXIS 162 (N.D. 1938).

Subsection 3.

A stipulation, fairly made, relating to the conduct of a pending case, will not be set aside where such action would be likely to result in serious injury to one of the parties. Trott v. State, 41 N.D. 614, 171 N.W. 827, 1919 N.D. LEXIS 100 (N.D. 1919).

Where a plaintiff brought an action for specific performance of a contract to sell real property, and, pending the action, defendant sold the premises to plaintiff, it was proper to permit intervention by one claiming to have purchased the premises from defendant. Boehm v. Long, 43 N.D. 1, 172 N.W. 862, 1919 N.D. LEXIS 3 (N.D. 1919).

Where a party participated in the trial of an appeal from a township supervisors’ award for land taken for highway purposes, he could not thereafter attack the validity of the appeal. Hulett v. Snook, 57 N.D. 338, 221 N.W. 879, 1928 N.D. LEXIS 134 (N.D. 1928).

Adult heirs and the general guardian of infant heirs could not sue an administrator for life insurance expended for the direct benefit of the heirs where the distribution was made with the knowledge and consent of the heirs and the guardian and with the approval of the county court. Hafey v. Hafey, 57 N.D. 381, 222 N.W. 256, 1928 N.D. LEXIS 141 (N.D. 1928).

Subsection 4.

If one may waive the advantage of a law intended solely for his benefit, there is no reason why he may not waive a purely personal benefit arising from the acts of the other party to a contract. Meyer v. National Fire Ins. Co., 67 N.D. 77, 269 N.W. 845, 1936 N.D. LEXIS 154 (N.D. 1936).

This maxim merely codified proposition that private persons cannot waive statutory rights given municipality by legislative action; statute of limitations on filing of claim against city could not be waived by insurance representative or city attorney. Aune v. Mandan, 167 N.W.2d 754, 1969 N.D. LEXIS 100 (N.D. 1969).

Plea agreement in which defendant waives good conduct credits under N.D.C.C. § 12-54.1-01 was illegal because a defendant cannot waive a right the legislature has given to prison administration to use for the purpose of inducing good behavior in prison. Ostafin v. State, 1997 ND 102, 564 N.W.2d 616, 1997 N.D. LEXIS 101 (N.D. 1997).

Subsection 5.

This maxim does not mean that one must so use his own rights as not to “damage” another. The true sense of the maxim is that one shall not so use his own property as to injure another. Carroll v. Rye Township, 13 N.D. 458, 101 N.W. 894, 1904 N.D. LEXIS 71 (N.D. 1904).

The expression “rights of others” means legal rights and does not include all rights determined by our moral and ethical standards. Langer v. Goode, 21 N.D. 462, 131 N.W. 258, 1911 N.D. LEXIS 112 (N.D. 1911).

This maxim lies at the root of the law on nuisances. Riffey v. Rush, 51 N.D. 188, 199 N.W. 523, 1924 N.D. LEXIS 160 (N.D. 1924).

The law should not inhibit reasonable development and improvement of land, but neither should it allow a landowner to expel surface water without regard to the consequences. Martin v. Weckerly, 364 N.W.2d 93, 1985 N.D. LEXIS 271 (N.D. 1985).

Subsection 6.

Where a party consents to a certain procedure and stipulates that certain evidence may be admitted, he will be estopped from asserting on appeal that the procedure was erroneous and the evidence inadmissible. Walton v. Olson, 40 N.D. 571, 170 N.W. 107, 1918 N.D. LEXIS 117 (N.D. 1918); Vannett v. Reilly-Herz Auto Co., 42 N.D. 607, 173 N.W. 466, 1919 N.D. LEXIS 157 (N.D. 1919).

Where a party invites, and in effect consents to, a ruling, he is ordinarily estopped from asserting that the ruling was prejudicial. Chaffee Bros. Co. v. Powers Elevator Co., 41 N.D. 94, 170 N.W. 315, 1918 N.D. LEXIS 140 (N.D. 1918).

Where plaintiff agreed to a stipulation that the case should be tried as a jury case, he could not complain on appeal that the trial court should have made findings of fact. Froescher v. Tabbert, 48 N.D. 905, 187 N.W. 962, 1922 N.D. LEXIS 114 (N.D. 1922).

A defendant in a criminal action is not entitled to a discharge on a writ of habeas corpus because the trial court, in granting a stay of execution, erroneously accepted an improper or insufficient bail bond at the invitation of the defendant. Cook v. State, 54 N.D. 178, 208 N.W. 977, 1926 N.D. LEXIS 131 (N.D. 1926); In re Cook, 54 N.D. 193, 209 N.W. 231, 1926 N.D. LEXIS 134 (N.D. 1926).

Where one advanced securities to protect a bank and consented, after the bank’s failure, to a sale of the securities by a creditor, he could not recover the value from the creditor. Northwestern Nat'l Bank v. Rosenquist, 57 N.D. 916, 224 N.W. 909, 1929 N.D. LEXIS 338 (N.D. 1929).

Subsection 6 applied to create an affirmative defense to motion by administrator of estate for accounting of funds handled by person holding power of attorney, where administrator failed to file motion until five years after death of testator and two years after death of the agent. Stuber v. Taylor, 200 N.W.2d 276, 1972 N.D. LEXIS 132 (N.D. 1972).

Party’s voluntary participation in city’s bidding process for a garbage collection contract without raising any objection to the city’s authority or proper procedure amounted to consent to the bidding procedure and party could not be heard to complain or object after he was not awarded the contract. Frieh v. Edgeley, 317 N.W.2d 818, 1982 N.D. LEXIS 263 (N.D. 1982).

Error that is acquiesced in, or not objected to, may not be raised on appeal as a ground upon which to reverse a judgment. City of Mandan v. Mi-Jon News, 381 N.W.2d 540, 1986 N.D. LEXIS 251 (N.D. 1986).

When parties engage in an activity which clearly constitutes a waiver, they cannot later claim they did not know their actions amounted to a voluntary and intentional waiver of their rights under subsection (6). Tormaschy v. Tormaschy, 1997 ND 2, 559 N.W.2d 813, 1997 N.D. LEXIS 3 (N.D. 1997).

Subsection 7.

The rule stated in this maxim is applicable to errors in procedure. Pyke v. Jamestown, 15 N.D. 157, 107 N.W. 359, 1906 N.D. LEXIS 37 (N.D. 1906).

By acquiescing in a ruling on the construction of a complaint and amending his answer in conformity therewith, defendant waived any errors in the construction and rulings made prior to the amendment. Morris v. Occident Elevator Co., 33 N.D. 447, 157 N.W. 486, 1916 N.D. LEXIS 105 (N.D. 1916).

A landowner acquiescing in a change caused by the improvement of an old trail is precluded from asserting that the trail was not used continuously and did not follow a definite course. Berger v. Morton County, 57 N.D. 305, 221 N.W. 270, 1928 N.D. LEXIS 128 (N.D. 1928).

Even though an application for a continuance was not made in writing as required by statute, where defendant did not question its form when it was presented, he acquiesced in what was done. State v. Braathen, 77 N.D. 309, 43 N.W.2d 202, 1950 N.D. LEXIS 131 (N.D. 1950).

Error that is acquiesced in, or not objected to, may not be raised on appeal as a ground upon which to reverse a judgment. City of Mandan v. Mi-Jon News, 381 N.W.2d 540, 1986 N.D. LEXIS 251 (N.D. 1986).

Where junior redemptioners failed to docket their judgment lien in the proper county in order to redeem property pursuant to N.D.C.C. § 28-20-13, the failure to properly docket did not invalidate the redemptions where the parties had acquiesced pursuant to N.D.C.C. § 31-11-05(7) in the improper redemption procedure throughout their litigation due to numerous redemptions having been made on judgment liens which were not properly docketed; as between the parties, the failure to properly docket the judgment liens was not cause to invalidate the redemption. Bank Ctr. First v. R.C. Transp., LLC, 2006 ND 110, 714 N.W.2d 816, 2006 N.D. LEXIS 114 (N.D. 2006).

Subsection 8.

In an action for the wrongful taking and conversion of property, a defendant was not permitted to set up a counterclaim whereby he would be permitted to take advantage of his own wrong. Ley v. First Nat'l Bank, 55 N.D. 227, 212 N.W. 841, 1927 N.D. LEXIS 27 (N.D. 1927).

A participant in a wrongdoing may be permitted to seek relief against a co-participant in the wrongdoing. Beavers v. Walters, 537 N.W.2d 647, 1995 N.D. LEXIS 162 (N.D. 1995).

Unclean hands doctrine was not applicable in the State’s corporate farming enforcement action against a nonprofit conservation organization because the corporation did not have actual, as opposed to presumed, knowledge the land purchase violated state law, engage in any misconduct to delay the suit, or attempt to hide or mislead the State concerning its acquisition and ownership; the corporation recorded its deed with the county recorder and paid an assessment on the property each year. Wayne Stenehjem ex rel. State v. Nat'l Audubon Soc., Inc., 2014 ND 71, 844 N.W.2d 892, 2014 N.D. LEXIS 73 (N.D. 2014).

Subsection 9.

Under subsection 9 and former N.D.C.C. § 13-01-05, which provides that every transfer of property with intent to defraud creditors is void as against all creditors of the debtor, the title and ownership of the property so transferred remains in the debtor, and is subject to levy and sale on an execution against him in like manner as though no transfer had been attempted. Lynch v. Burt, 132 F. 417, 1904 U.S. App. LEXIS 4336 (8th Cir. N.D. 1904).

Subsection 11.

The correct rendering of this maxim should be, “A transaction between two parties ought not to operate to the disadvantage of a third”. It relates only to the law of evidence. Carroll v. Rye Township, 13 N.D. 458, 101 N.W. 894, 1904 N.D. LEXIS 71 (N.D. 1904).

Subsection 12.

Where one took the benefit of his application and contract to obtain seed grain from a county, a reasonable construction of the contract was called for, and defendant was held liable. Burke County v. Gerding, 49 N.D. 414, 191 N.W. 493, 1922 N.D. LEXIS 71 (N.D. 1922).

Subsection 14.

The statutes of this state authorize a wife to maintain an action in her own name, including an action for alienation of affections. King v. Hanson, 13 N.D. 85, 99 N.W. 1085, 1904 N.D. LEXIS 26 (N.D. 1904).

This maxim simply means that there is a remedy to enforce and protect every legal right. Compensation is not given for every loss. Carroll v. Rye Township, 13 N.D. 458, 101 N.W. 894, 1904 N.D. LEXIS 71 (N.D. 1904).

A “remedy” is a measure employed to enforce a right or to redress an injury, and includes civil actions or special proceedings. Petition of Ecklund, 67 N.D. 140, 270 N.W. 347, 1936 N.D. LEXIS 161 (N.D. 1936).

Subsection 15.

Where each party to an action knew or should have known that certain tax titles were void, and the parties purchased the titles only for the purpose of selling them to innocent persons, neither party had any remedy or cause of action against the other. Red River Valley Land Co. v. Harris, 42 N.D. 76, 172 N.W. 68, 1919 N.D. LEXIS 126 (N.D. 1919).

Subsection 19.

A fiduciary was not chargeable with interest on trust funds mingled with his own where they were not used by him. Hill v. Hanna, 57 N.D. 412, 222 N.W. 459, 1928 N.D. LEXIS 145 (N.D. 1928).

The liability of the surety is dependent on the facts and not on the form of action in which recovery is had against the principal. State ex rel. Coan v. Plaza Equity Elevator Co., 65 N.D. 658, 261 N.W. 46, 1935 N.D. LEXIS 153 (N.D. 1935).

Subsection 23.

The execution and delivery of a warehouse receipt operates as a valid pledge of the property without the necessity of an actual change in possession, the symbolic or constructive delivery through the issuance and delivery of such warehouse receipt being sufficient. State ex rel. Hart-Parr Co. v. Robb-Lawrence Co., 17 N.D. 257, 115 N.W. 846, 1908 N.D. LEXIS 39 (N.D. 1908).

If a party insists that he is not bound by a contract to convey land, a tender is not necessary before suit for specific performance is brought. Beddow v. Flage, 22 N.D. 53, 132 N.W. 637, 1911 N.D. LEXIS 14 (N.D. 1911).

When a judgment in an action for the foreclosure of a mortgage is rendered, no further action on the part of the court is necessary to ascertain the deficiency. Bull v. Smith, 49 N.D. 337, 191 N.W. 624, 1922 N.D. LEXIS 61 (N.D. 1922).

Under a police pension fund ordinance, a policeman who took a leave of absence to enter the armed forces was not required to be reinstated in the police department to be entitled to retirement and pension. Quam v. City of Fargo, 77 N.D. 333, 43 N.W.2d 292 (1950).

Where a party voluntarily appeared in a court having jurisdiction of the subject matter of a controversy, he could not say that the court was without jurisdiction of his person because he was not handed a notice or citation. Tooz v. Tooz, 78 N.D. 432, 50 N.W.2d 61, 1951 N.D. LEXIS 102 (N.D. 1951).

Public library which purchased land from urban renewal board was relieved from contract provision allegedly requiring sixty-day notice of default prior to initiation of suit where giving of notice would be a useless act since agency had already indicated it would not remove rubble and debris from basement of razed buildings. Fargo Pub. Library v. Fargo Urban Renewal Agency, 185 N.W.2d 500, 1971 N.D. LEXIS 169 (N.D. 1971).

Law would not require taxpayer to appeal denial of claim to board of county commissioners after that identical board had already denied the claim sitting as the county board of equalization. Signal Oil & Gas Co. v. Williams County, 206 N.W.2d 75, 1973 N.D. LEXIS 179 (N.D. 1973).

A statute is to be read to give effect to each of its provisions, whenever fairly possible. County of Stutsman v. State Historical Soc'y, 371 N.W.2d 321, 1985 N.D. LEXIS 354 (N.D. 1985).

N.D.C.C. § 52-06-02(4) did not disqualify employees from unemployment compensation when they were locked out because, when interpreting the statutory disqualification for a “strike, sympathy strike, or a claimant’s work stoppage dispute of any kind,” if the inclusion of “work stoppage dispute of any kind” broadened “a claimant’s work stoppage dispute of any kind” to include employer initiated work stoppages, the phrase “a claimant’s” became superfluous, contrary to N.D.C.C. §§ 1-02-38(2) and 31-11-05(23). Olson v. Job Serv. N.D., 2013 ND 24, 826 N.W.2d 36, 2013 N.D. LEXIS 34 (N.D. 2013).

Subsection 24.

A notice to redeem from tax sale substantially complying with the statute is not invalid because of a trifling in accuracy which does not prejudice anyone. Baird v. Zahl, 58 N.D. 388, 226 N.W. 549, 1929 N.D. LEXIS 222 (N.D. 1929); State ex rel. State Bank v. Weiler, 67 N.D. 593, 275 N.W. 67, 1937 N.D. LEXIS 117 (N.D. 1937).

The doctrine of de minimis non curat lex does not apply in situations in which there has been an intentional, knowing, or willful invasion of the real property rights of another. Heinsohn v. William Clairmont, Inc., 333 N.W.2d 697, 1983 N.D. LEXIS 267 (N.D. 1983).

Substantial and credible evidence supported the assessment of a 200 percent risk penalty against a nonparticipating owner under N.D.C.C. § 38-08-08(3)(a) because changes to an invitation to participate in a well, made by a subsequent letter, were insubstantial under N.D.C.C. § 31-11-05(24) and did not require that another invitation be issued. The invitation met the requirements of N.D. Admin. Code § 43-02-03-16.3(1)(a)(1), and timeliness in accepting a valid invitation is mandatory. Gadeco, LLC v. Indus. Comm'n, 2013 ND 72, 830 N.W.2d 535, 2013 N.D. LEXIS 65 (N.D. 2013).

Subsection 25.

Descriptive words, with definite and certain meaning, control expressions of quantity, thus the designated capacity of a grain elevator must yield to specified dimensions. Honstain Bros. Co. v. Linden Inv. Co., 45 N.D. 210, 177 N.W. 114, 1919 N.D. LEXIS 244 (N.D. 1919).

Subsection 27.

A provision in a lease forbidding the subletting of the whole of the premises necessarily forbids the subletting of a part thereof. Minneapolis, S. P. & S. S. M. Ry. v. Duvall, 67 N.W.2d 593, 1954 N.D. LEXIS 117 (N.D. 1954).

Visitation was awarded under the maxim “the greater contains the less.” Because custody may be awarded to a third party in exceptional circumstances in order to prevent serious harm or detriment to a child, visitation may also be awarded under those conditions. Edwards v. Edwards, 2010 ND 2, 777 N.W.2d 606, 2010 N.D. LEXIS 2 (N.D. 2010).

Subsection 29.

Where a contract provided a method for determining the property to be sold, that is all that was necessary. Schuyler v. Wheelon, 17 N.D. 161, 115 N.W. 259, 1908 N.D. LEXIS 21 (N.D. 1908).

Subsection 30.

Judgments rendered without service of process on defendants were invalid and such judgments were not rendered valid by mere lapse of time. Baird v. Ellison, 70 N.D. 261, 293 N.W. 794, 1940 N.D. LEXIS 169 (N.D. 1940).

Subsection 31.

A lien is dependent on the debt and not the debt on the lien. Sleeper v. Elliott, 36 N.D. 280, 162 N.W. 305, 1916 N.D. LEXIS 185 (N.D. 1916).

A judgment for the foreclosure of a mortgage and the sale of the property is predicated upon the money judgment. First State Bank v. Schmaltz, 61 N.D. 150, 237 N.W. 644, 1931 N.D. LEXIS 257 (N.D. 1931).

Subsection 32.

A deed of real estate will be construed so that, when possible, it will be given effect rather than defeated. HENNIGES v. PASCHKE, 9 N.D. 489, 84 N.W. 350, 1900 N.D. LEXIS 164 (N.D. 1900).

Subsection 34.

Where the mortgagee of personal property consented to the sale of the property by the mortgagor and also wrote, witnessed, and acknowledged the bill of sale, he had no right, as against the buyer, to take the property under the mortgage. Stoffels v. Brown, 37 N.D. 272, 163 N.W. 834, 1917 N.D. LEXIS 96 (N.D. 1917).

The holder of a note may not return payment or cancel the security and thereafter collect the whole debt from the guarantor. State Bank v. Edwards, 45 N.D. 341, 177 N.W. 677, 1920 N.D. LEXIS 128 (N.D. 1920).

Where a wife permits her husband, in the apparent control of land conveyed to her, to borrow money thereon, both husband and wife are estopped to assert that the wife’s title is superior to the judgment lien of the lender. State Bank v. Newell, 55 N.D. 184, 212 N.W. 848, 1927 N.D. LEXIS 21 (N.D. 1927).

If a loss results to parties ignorant and innocent of a fraud, it must fall on those whose lack of care and attention made the fraud possible rather than on those who were wholly unconnected with the transaction. Hoffer v. Crawford, 65 N.W.2d 625, 1954 N.D. LEXIS 97 (N.D. 1954).

Fact that husband misled wife to believe that indemnity agreement she was signing was bond was no defense to wife’s liability, after marriage had terminated, where surety was not party to any fraud by husband and no agency relationship existed between surety and husband; surety was innocent party, and thus wife was required to be sufferer under this subsection; additional factor of abuse of confidential relationship between husband and wife did not justify application of different rule. Hartford Accident & Indem. Co. v. Anderson, 155 N.W.2d 728, 1968 N.D. LEXIS 113 (N.D. 1968).

Collateral References.

Equity 54-66.

27A Am Jur 2d Equity §§ 83 et seq.

30 C.J.S. Equity, §§ 89-111.

Recovery of money or property lost through cheating or fraud in forbidden gambling or game, 39 A.L.R.2d 1213.

Fraternal society: right of benevolent or fraternal society or organization to protection against use of same or similar name, insignia, or ritual by another organization, as affected by unclean hands doctrine, 76 A.L.R.2d 1396.

Checks: application of maxim dealing with allocation of loss as between innocent parties to question who must bear loss as between drawer or indorser who delivers check to an impostor and one who purchases, cashes, or pays it upon the impostor’s endorsement, 81 A.L.R.2d 1365, 1383.

Infant’s misrepresentation as to his age as estopping him from disaff’g his voidable transaction, 29 A.L.R.3d 1270.

31-11-06. Estoppel by declaration, act, or omission.

When a party, by that party’s own declaration, act, or omission, intentionally and deliberately has led another to believe a particular thing true and to act upon such belief, that party shall not be permitted to falsify it in any litigation arising out of such declaration, act, or omission.

Source:

S.L. 1897, ch. 110, § 2; R.C. 1899, § 5713b; R.C. 1905, § 7316; C.L. 1913, § 7935; R.C. 1943, § 31-1106.

Notes to Decisions

In General.

Statute is restatement of equitable doctrine of estoppel. Farmers Coop. Ass'n v. Cole, 239 N.W.2d 808, 1976 N.D. LEXIS 191 (N.D. 1976).

Action to Cancel Oil and Gas Lease.

Lessors of an “unless” oil and gas lease were estopped from claiming that the lease terminated because of inadequate payment, where they discovered that the payment was inadequate and were under a duty to so advise the assignee of the lessee. Hove v. Atchison, 138 F. Supp. 486, 1956 U.S. Dist. LEXIS 3785 (D.N.D.), aff'd, 238 F.2d 819, 1956 U.S. App. LEXIS 4894 (8th Cir. N.D. 1956).

Automobile Insurance Policy.

The defendant insurance company was not entitled to summary judgment in an action to enforce coverage for a date on which the plaintiff was involved in an automobile accident where the plaintiff alleged that the insurance was estopped from denying coverage where (1) the renewal date of the plaintiff’s policy was October 10, but the plaintiff did not pay for the renewal until October 18, (2) the plaintiff’s accident occurred on October 17, and (3) the insurance company returned the portion of the plaintiff’s payment for the eight days in which payment was late, notified her that her policy lapsed during those eight days, and reinstated coverage as of October 19, but (4) the plaintiff had been late paying her insurance premiums six out of 12 prior payments and each time the defendant received a prior late payment, it credited the payment to her account without cancelling or lapsing her policy or sending her a refund for the period during which payment was late. Kramer v. Allstate Ins. Co., 2001 U.S. Dist. LEXIS 20053 (D.N.D. Nov. 28, 2001).

Available Public Record Prevents Estoppel.

The records in the office of the register of deeds [now recorder] are a readily available means of information as to titles to land, and a purchaser at a decedent’s estate sale who has not checked the records cannot claim estoppel against the widow who failed to inform him of her separate undivided interest. Sittner v. Mistelski, 140 N.W.2d 360, 1966 N.D. LEXIS 193 (N.D. 1966).

Claims to Real Estate.

The defense of estoppel may be invoked against a plaintiff who seeks to determine adverse claims to real estate. Neset v. Rudman, 74 N.W.2d 826, 1956 N.D. LEXIS 91 (N.D. 1956).

Where deeds were given as mortgages rather than instruments passing title, and defendant had induced plaintiff to “purchase” lots and plaintiff financed improvements on lots in defendant’s possession, since defendant knew title had not passed to plaintiff, he was estopped from claiming any interest in lots. Sorenson v. Olson, 235 N.W.2d 892, 1975 N.D. LEXIS 138 (N.D. 1975).

Equitable estoppel will be found only where party charged was apprised of true state of his title, made statement with intention to deceive, other party was destitute of knowledge and of means of acquiring knowledge as to true state of title, and latter relied upon statement to his injury. Cranston v. Winters, 238 N.W.2d 647, 1976 N.D. LEXIS 192 (N.D. 1976).

Death of Party.

Summary judgment was inappropriate where an insurance adjuster failed to disclose an insured’s death while pursuing settlement negotiations in an auto accident case because equitable estoppel under this section could have been invoked to extend the limitations period, although service on the widower under N.D.R.Civ.P. 4(d)(2)(A)(v) did not constitute service on a personal representative and N.D.C.C. § 28-01-24 did not extend the statute of limitations on fraud grounds. Muhammed v. Welch, 2004 ND 46, 675 N.W.2d 402, 2004 N.D. LEXIS 46 (N.D. 2004).

Effect of Enactment.

The effect of this section is to enact into substantive law the equitable principle of estoppel and render it cognizable in both law and equity. Neset v. Rudman, 74 N.W.2d 826, 1956 N.D. LEXIS 91 (N.D. 1956).

Elements of Equitable Estoppel.

The basic elements of an equitable estoppel, insofar as it relates to the person being estopped, are conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than those which the party subsequently attempts to assert; the intention, or at least the expectation, that such conduct will be acted upon by, or will influence, the other party or persons; and knowledge, actual or constructive, of the real facts. Insofar as related to the party claiming the estoppel, the elements are lack of knowledge of the truth as to the facts in question; reliance, in good faith, upon the conduct or statements of the party to be estopped; and action or inaction based thereon, of such a character as to change the position or status of the party claiming the estoppel, to his injury, detriment, or prejudice. Farmers Coop. Ass'n v. Cole, 239 N.W.2d 808, 1976 N.D. LEXIS 191 (N.D. 1976); Cooke v. Blood Sys., 320 N.W.2d 124, 1982 N.D. LEXIS 268 (N.D. 1982).

Insofar as it relates to the person being estopped, elements of an equitable estoppel are: conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than those which the party subsequently attempts to assert; the intention, or at least the expectation, that such conduct will be acted upon by, or will influence, the other party; and knowledge, actual or constructive, of the real facts. O'Connell v. Entertainment Enters., 317 N.W.2d 385, 1982 N.D. LEXIS 209 (N.D. 1982).

Defendant, seeking to prove equitable estoppel, had to establish: (1) its lack of knowledge and the means of knowledge of the truth as to the facts in question; (2) its good faith reliance upon the conduct or statements of plaintiff, and; (3) its action or inaction based thereon, which resulted in a change of its position to its injury. Kouba v. Great Plains Pelleting, 372 N.W.2d 884, 1985 N.D. LEXIS 372 (N.D. 1985).

To prevail on a claim of equitable estoppel a party must show: (1) conduct which constitutes a false representation; (2) the intention to cause another person to rely on that conduct, and; (3) that the party having made the false representation had knowledge of the true facts. A party claiming estoppel must have lacked knowledge of the true facts and must have relied on the false representation to his or her injury. Farmer's Union Cent. Exchange, Inc. v. Reliance Ins. Co., 626 F. Supp. 583, 1985 U.S. Dist. LEXIS 15712 (D.N.D. 1985).

Since the prospective lessee could not allege a claim that entitled him to relief regarding his alleged three-year oral lease of trucks, the court granted the prospective truck lessor’s motion for judgment on the pleadings; the three-year oral lease violated the statute of frauds, and the doctrine of equitable estoppel did not apply to defeat the statute of frauds defense since complaint did not allege the fraud, positive misrepresentation, or unconscionable conduct necessary to invoke equitable estoppel. Karch v. Equilon Enters., L.L.C., 286 F. Supp. 2d 1075, 2003 U.S. Dist. LEXIS 18175 (D.N.D. 2003).

Equitable Estoppel Mutual and Reciprocal.

In order to be effective, an equitable estoppel must be mutual and reciprocal; unless both parties to a transaction are bound by estoppel, neither is bound. Brunsdale v. Bagge, 224 N.W.2d 384, 1974 N.D. LEXIS 135 (N.D. 1974).

Estoppel Against the Government.

Estoppel against government is not absolutely barred as a matter of law, even in matters concerning taxation; however, doctrine of estoppel is not one which should be applied freely against government, but likewise it is not one which should never be available, and it must be applied on a case by case basis with a careful weighing of inequities that would result if doctrine is not applied versus public interest at stake and resulting harm to that interest if doctrine is applied. Blocker Drilling Can. v. Conrad, 354 N.W.2d 912, 1984 N.D. LEXIS 375 (N.D. 1984).

Estoppel Denied.

In the absence of evidence that broker had been induced to act to his own prejudice, owners of real property were not estopped from denying existence of a listing contract which they had attempted to rescind because of mistake as to whether tenant had abandoned his lease of their property. Dardis v. Eddy Bros., 223 N.W.2d 674, 1974 N.D. LEXIS 174 (N.D. 1974).

Trial court did not err in holding that the discovery rule did not prevent the running of the statute of limitations under N.D.C.C. § 28-01-16(1), or plaintiff was estopped from asserting the statute of limitations as a defense under this section, where the trial court found that defendant should have discovered its claim more than six years before it brought its counterclaim. American Ins. Co. v. Midwest Motor Express, 554 N.W.2d 182, 1996 N.D. LEXIS 218 (N.D. 1996).

Corporation which informed its investors of its federal lawsuit against a third party for breach of contract was not equitably estopped from relying on the one year Securities Act limitation period imposed by N.D.C.C. § 10-04-17; the information conveyed to investors was not false or misleading in any way and there was no allegation the corporation told investors to delay pursuit of their Securities Act claims until the third party litigation was resolved. Narum v. Faxx Foods, Inc., 1999 ND 45, 590 N.W.2d 454, 1999 N.D. LEXIS 49 (N.D. 1999).

Equitable estoppel did not bar the application of the six year statute of repose against actions for medical malpractice set forth in N.D.C.C. § 28-01-18 where the act allegedly giving rise to the estoppel was the same act alleged to constitute negligence; claims of estoppel and negligence could not be based on the same acts. Hoffner v. Johnson, 2003 ND 79, 660 N.W.2d 909, 2003 N.D. LEXIS 91 (N.D. 2003).

No evidence was given that a partnership existed between the rancher and the brother and the rancher had not established the elements necessary to show equitable estoppel; no evidence demonstrates where that the rancher had been misled into believing there was a partnership and, although there was some type of business arrangement between the rancher and the brother, rancher cited no evidence to establish the parameters of the arrangement or to elevate the arrangement to the status of ownership and entitlement to an equal share of the business assets. Tarnavsky v. Tarnavsky, 2003 ND 110, 666 N.W.2d 444, 2003 N.D. LEXIS 120 (N.D. 2003).

Where a fired employee alleged that she believed she had continued employment with her employer until retirement and, as a result, she did not seek other employment opportunities and failed to take sick leave to which she was entitled, the employee’s equitable estoppel claim was dismissed because the fact that the employee may have been left with the impression that she would remain an employee until retirement and did not take sick leave was not legally sufficient to establish detrimental reliance based on any alleged misrepresentation. Humann v. KEM Elec. Coop., Inc., 450 F. Supp. 2d 1006, 2006 U.S. Dist. LEXIS 63537 (D.N.D. 2006), aff'd, 497 F.3d 810, 2007 U.S. App. LEXIS 19136 (8th Cir. N.D. 2007).

North Dakota Department of Human Services was not estopped from denying Medicaid payment for child’s out-of-state care, where the child presented evidence that a hospital representative believed she had secured verbal approval for payment of the child’s medical care two days after he was discharged from the hospital and the testimony of the hospital’s representative reflected that it did not receive any type of approval while it was providing the child’s care, and the child had already been discharged when the hospital claimed the Department approved payment. Thus, the child failed to show detrimental reliance on the Department’s conduct or statements and failed to establish the basic elements of estoppel. J.P. v. Stark County Soc. Servs. Bd., 2007 ND 140, 737 N.W.2d 627, 2007 N.D. LEXIS 134 (N.D. 2007).

Medical providers had no liability on an equitable estoppel theory for expenses and attorney fees incurred by a patient’s conservators in securing payments from an insurance company because an alleged statement by a provider’s employee expressing an opinion about whether it would be worthwhile to sue the insurance company did not amount to affirmative deceptive conduct. Moreover, equitable estoppel does not by itself give rise to a cause of action and cannot be used to create an enforceable agreement. Hayden v. Medcenter One, Inc., 2013 ND 46, 828 N.W.2d 775, 2013 N.D. LEXIS 47 (N.D. 2013).

It was not clearly erroneous to find debtors did not detrimentally rely on a seller's credit account statements to claim a ring was paid for, such that N.D.C.C. § 31-11-06 estopped the seller and a creditor from claiming the contrary because, except for an inaccurate entry caused by a debtor's insufficient funds check, all statements showed payments were applied to the oldest purchase. Royal Jewelers Inc. v. Light, 2015 ND 44, 859 N.W.2d 921, 2015 N.D. LEXIS 43 (N.D. 2015).

Dismissal of landowners’ equitable estoppel claim against a township was appropriate because the landowners did not claim or show substantial reliance sufficient to invoke the protection of estoppel as the landowers’ claim arose from alleged lost opportunities based on development or sale negotiations, which the landowners admitted never amounted to a final agreement. Arnegard v. Arnegard Twp., 2018 ND 80, 908 N.W.2d 737, 2018 N.D. LEXIS 85 (N.D. 2018).

District court’s finding that any purported oral agreement by the parties to modify a payment agreement in a divorce judgment was devoid of certainty sufficiently addressed a former spouse’s claim of estoppel and were not clearly erroneous. Furthermore, the parties’ conduct subsequent to the entry of the divorce judgment did not bar the other spouse from moving to enforce the original judgment’s terms. Helbling v. Helbling, 2019 ND 27, 921 N.W.2d 652, 2019 N.D. LEXIS 12 (N.D. 2019).

Estopped from Asserting Title.

A widow with a grade-school education who signs a declaration denying any interest in the land sold as part of her deceased husband’s estate when in fact she held an undivided interest in such land is not estopped from asserting her title unless she was apprised of the true state of her own title, she made the admission with the intention to deceive or with such careless and culpable negligence as to amount to constructive fraud, and the buyer at the administrator’s sale was misled by such error when the real facts were not open for his immediate ascertainment. Sittner v. Mistelski, 140 N.W.2d 360, 1966 N.D. LEXIS 193 (N.D. 1966).

False Representation.

A false representation may be in the form of a positive false statement or in the form of suppression of facts which one party has a legal or equitable obligation to communicate to another. Farmer's Union Cent. Exchange, Inc. v. Reliance Ins. Co., 626 F. Supp. 583, 1985 U.S. Dist. LEXIS 15712 (D.N.D. 1985).

Federal Preemption.

State law equitable estoppel claim was preempted by federal law, because any state-law cause of action that duplicated, supplemented, or supplanted the Employee Retirement Income Security Act (ERISA) civil enforcement remedy conflicted with the clear congressional intent to make the ERISA remedy exclusive and was therefore preempted; Federal law permitted the company to terminate its health or other medical benefit plans under ERISA at any time after the expiration of the collective bargaining agreement governing the benefit plans, and the company lawfully terminated its coverage of post-retirement health benefits to the retired employees even after providing them benefits for over fourteen years after they first retired. Benson v. SRT Communs., Inc., 2012 ND 58, 813 N.W.2d 552, 2012 N.D. LEXIS 54 (N.D. 2012).

Fee Title.

Widow who probated will giving her life estate because she did not know that property had been held in joint tenancy with husband so that fee had passed to her by right of survivorship did not, by obtaining final decree of distribution, create an estoppel against and her heirs to claim the fee title. Cranston v. Winters, 238 N.W.2d 647, 1976 N.D. LEXIS 192 (N.D. 1976).

Lease.

Where lessee stored grain, farm machinery and equipment in quonset for thirty-eight months with knowledge of lessor, but contrary to terms of lease, and lessor did not object to such use or demand additional payment, lessor was not estopped from collecting payment, absent evidence that lessee was damaged or misled by lessor’s conduct. Beck v. Lind, 235 N.W.2d 239, 1975 N.D. LEXIS 136 (N.D. 1975).

Nonprejudicial Act.

Failure of a county for a long period of time to bill a city for the cost of maintaining city prisoners in the county jail did not prejudice the city nor estop the county from asserting a claim extending back for six years. Grand Forks County v. Grand Forks, 123 N.W.2d 42, 1963 N.D. LEXIS 104 (N.D. 1963).

Reliance on Conduct.

The trial court did not err in concluding that a petroleum company was equitably estopped from denying that a letter agreement required the company to pay disputed operating expenses, where the company, lessee, had an expectation that the estate, lessor, would act upon or be influenced by it’s conduct; the company had actual or constructive knowledge of the true facts; the personal representative of the estate lacked knowledge of the facts asserted by the company; the estate relied in good faith upon the company’s conduct when it sold a net revenue interest to a third party and represented that the company was responsible for expenses; and by the sale to the third party, the estate changed its position to its detriment. Minex Resources v. Morland, 518 N.W.2d 682, 1994 N.D. LEXIS 125 (N.D. 1994).

Silence.

Silence alone will not suffice to give rise to an equitable estoppel; it must be accompanied by a duty to speak out, reasonable reliance on such silence, and resulting prejudice. Ray Co. v. Johnson, 325 N.W.2d 250, 1982 N.D. LEXIS 355 (N.D. 1982).

In a suit brought by mineral interest holders (holders) against a petroleum company seeking a declaration that an oil and gas lease had not been effectively renewed, the petroleum company’s motion for summary judgment was granted because the holders’ failure to timely object to the uncertified check tendered by the petroleum company constituted an implied-in-law waiver under N.D.C.C. § 9-12-18 of the option’s requirement for tender of a certified check, and the their objection after the deadline for exercising the option was untimely and ineffective; as a consequence, there was no genuine issue of material fact that the petroleum company’s tender of payment effectively exercised the option to renew the lease and the lease was thereby renewed. Frandson v. Oasis Petroleum N. Am., LLC, 870 F. Supp. 2d 726, 2012 U.S. Dist. LEXIS 59003 (D.N.D. 2012).

Statute of Frauds.

Equitable estoppel may bar the assertion of the statute of frauds as a defense if, in fact, there is an oral agreement. Cooke v. Blood Sys., 320 N.W.2d 124, 1982 N.D. LEXIS 268 (N.D. 1982).

Statute of Limitations.

For purposes of establishing an estoppel claim, only those statements made before the end of the statute of limitations period are relevant. Farmer's Union Cent. Exchange, Inc. v. Reliance Ins. Co., 626 F. Supp. 583, 1985 U.S. Dist. LEXIS 15712 (D.N.D. 1985).

In a creditor’s claim against the estate of petitioner’s mother, for the balance due on loans made to her during her lifetime, where petitioner’s parents repeatedly assured petitioner and his wife that the loans would be paid, and petitioner reasonably relied on the assurances and thus did not bring a claim until after their deaths, the estate was barred by equitable estoppel from asserting the statute of limitations as a defense to repayment. Estate of Helling v. American State Bank & Trust Co., 510 N.W.2d 595, 1994 N.D. LEXIS 9 (N.D. 1994).

In an employee’s age discrimination suit against a university, the university was equitably estopped from asserting the statute of limitation because counsel for the employee relied on the university’s statement that it would admit service. Ellis v. N.D. State Univ., 2009 ND 59, 764 N.W.2d 192, 2009 N.D. LEXIS 41 (N.D. 2009), dismissed, 2010 ND 114, 783 N.W.2d 825, 2010 N.D. LEXIS 114 (N.D. 2010).

Collateral References.

Estoppel 52 et seq.

28 Am. Jur. 2d, Estoppel and Waiver, §§ 1-3, 27 et seq.

30A C.J.S. Estoppel, §§ 1-3, 59 et seq.

Judicial sale: defects or irregularities in judicial sale, estoppel to assert by representations as to title, 2 A.L.R.2d 6, 78.

Mortgages: estoppel of mortgagee from contesting the mortgagor’s title, 11 A.L.R.2d 1397.

Annulment, antenuptial knowledge relating to alleged grounds as barring right to, 15 A.L.R.2d 706.

Wills: estoppel by acquiescence to contest will or attack its validity, 28 A.L.R.2d 116, 129.

Repairs, waiver of right to abandon premises because of breach of landlord’s covenant to make, 28 A.L.R.2d 471.

Public work bond, false receipts or the like as estopping materialmen or laborers from recovering on, 39 A.L.R.2d 1104.

Pensions: promissory estoppel based on representations of employer with respect to general pension or retirement plan, 42 A.L.R.2d 461, 471.

Wills: estoppel with respect to agreement to drop or compromise will contest or withdraw objections to probate, 42 A.L.R.2d 1319, 1365.

Representations as estopping obligor to assert against transferee of conditional sale contract, installment improvement or repair contract, or related commercial paper, defenses or equities available against transferor, 44 A.L.R.2d 196, 205.

Comment note: Promissory estoppel, 48 A.L.R.2d 1069.

Lease: estoppel to assert forfeiture clause of lease made or held by cotenants as lessors, 50 A.L.R.2d 1365.

Estoppel as to tort liability for damages for misrepresentations as to area of real property sold or exchanged, 54 A.L.R.2d 660, 689.

Fixtures: estoppel, by failure to disclose claim, to assert that article annexed to realty is or is not a fixture, 60 A.L.R.2d 1209, 1217.

Licensing: right to attack validity of statute, ordinance, or regulation relating to occupation or professional license as affected by applying for license, 65 A.L.R.2d 660.

Personal representatives: acquiescence by beneficiary as affecting coexecutor’s, coadministrator’s or testamentary cotrustee’s liability for defaults or wrongful acts of fiduciary in handling estate, 65 A.L.R.2d 1019, 1068.

Liability as between lessor and lessee, where lease does not specify, for taxes and assessments, 86 A.L.R.2d 670.

Checks: payee’s prior negligence facilitating forging of endorsement as precluding recovery from bank paying check, 87 A.L.R.2d 638.

Evidence: quantum or degree of evidence necessary to prove an equitable estoppel, 4 A.L.R.3d 361.

Infant’s misrepresentation as to his age as estopping him from disaff’g his voidable transaction, 29 A.L.R.3d 1270.

Statute of limitations, promises to settle or perform as estopping reliance on, 44 A.L.R.3d 482.

Comment note: Promissory estoppel as basis for avoidance of statute of frauds, 56 A.L.R.3d 1037.

Estoppel to contest will or attack its validity by acceptance of benefits thereunder, 78 A.L.R.4th 90.

Failure to disclose extent or value of property owned as ground for avoiding premarital contract, 3 A.L.R.5th 394.

Promissory estoppel of lending institution based on promise to lend money, 18 A.L.R.5th 307.

Waiver or estoppel of insurer on basis of statements or omissions in promotional, illustrative, or explanatory materials given to insured, 63 A.L.R.5th 427.

31-11-07. Tenant estopped from denying landlord’s title.

A tenant shall not be permitted to deny the title of the tenant’s landlord at the time of the commencement of the relation.

Source:

S.L. 1897, ch. 110, § 2; R.C. 1899, § 5713b; R.C. 1905, § 7316; C.L. 1913, § 7935; R.C. 1943, § 31-1107.

Collateral References.

Landlord and Tenant 61-69.

49 Am Jur 2d Landlord and Tenant § 778.

51C C.J.S. Landlord and Tenant, §§ 589-650.

CHAPTER 31-12 No Sufficient Evidence of Survivorship [Repealed]

[Repealed by S.L. 1993, ch. 334, § 50, as amended by S.L. 1995, ch. 322, § 27]

CHAPTER 31-13 DNA Analysis

31-13-01. Definitions.

As used in this chapter, unless the context otherwise requires:

  1. “Department” means the department of corrections and rehabilitation.
  2. “DNA” means deoxyribonucleic acid.
  3. “Laboratory” means the state crime laboratory.

Source:

S.L. 1995, ch. 325, § 1; 2003, ch. 469, § 4.

Law Reviews.

How Should North Dakota Approach the Admissibility of DNA: A Comprehensive Analysis of How Other Courts Approach the Admissibility of DNA, 72 N.D. L. Rev. 607 (1996).

31-13-02. DNA testing — Admissibility as evidence.

In any court proceeding, DNA testing is deemed to be a reliable scientific technique, and the evidence of a DNA profile comparison must be admitted as prima facie evidence to prove or disprove the identity of any person. This section does not otherwise limit the introduction of any relevant evidence bearing upon any question at issue before the court. The court, regardless of the results of the DNA analysis, if any, shall consider other relevant evidence of the identity of the person as is admissible in evidence.

Source:

S.L. 1995, ch. 325, § 2.

Law Reviews.

How Should North Dakota Approach the Admissibility of DNA: A Comprehensive Analysis of How Other Courts Approach the Admissibility of DNA, 72 N.D. L. Rev. 607 (1996).

31-13-03. Individuals to be tested — Costs.

  1. An individual eighteen years of age or over who is arrested or summoned to appear before a magistrate for the commission of a felony shall provide to a law enforcement officer or correctional personnel at the time of the individual’s arrest or appearance or upon booking into a correctional facility a sample of blood or other body fluids for DNA law enforcement identification purposes and inclusion in the law enforcement identification databases. If it is determined that the individual’s DNA sample is included in the law enforcement identification databases, an additional sample is not required.
  2. The provisions of this subsection apply only if an individual’s DNA sample is not already included in the law enforcement identification databases. The court shall order any individual convicted on or after August 1, 1995, of any sexual offense or attempted sexual offense in violation of section 12.1-20-03, 12.1-20-03.1, 12.1-20-04, 12.1-20-05, or 12.1-20-06, subdivision e or f of subsection 1 of section 12.1-20-07, or section 12.1-20-11 or any other offense when the court finds at sentencing that the individual engaged in a nonconsensual sexual act or sexual contact with another individual during, in the course of, or as a result of, the offense or any individual who is in the custody of the department after July 31, 1995, as a result of a conviction of one of these offenses to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in law enforcement identification databases. The court shall order any individual convicted after July 31, 2001, of a felony offense contained in chapter 12.1-16, 12.1-17, or 12.1-18, section 12.1-22-01, or chapter 12.1-27.2 or any individual who is in the custody of the department after July 31, 2001, as a result of a conviction for one of these offenses to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in the law enforcement identification databases. The court shall order an individual convicted after July 31, 2005, of any felony offense or an individual arrested for the commission of a felony offense after July 31, 2009, to have a sample of blood or other body fluids taken by the department for DNA law enforcement identification purposes and inclusion in the law enforcement identification databases. DNA samples must be collected immediately, but may be preserved by the department for subsequent analysis upon receipt of sufficient funding. Any individual convicted after July 31, 1995, who is not sentenced to a term of confinement, shall provide a sample of blood or other body fluids as a condition of the sentence or probation at a time and place specified by the sentencing court.
  3. If the individual from whom a DNA sample is collected is convicted of a felony offense, the sentencing court shall assess the cost of the procedure against the individual being tested. The department shall collect the cost of the procedure from the individual being tested and transfer the amount collected to the attorney general for deposit in the general fund.
  4. If the sentencing court has not ordered an individual to provide a sample of blood or other body fluids under this section, or if an individual required to provide a sample of blood or other body fluids under this section has refused to submit a sample of blood or other body fluids, the sentencing court retains jurisdiction to order the individual, including an individual whose sentence to incarceration or supervised probation has expired, to submit a sample of blood or other body fluids for DNA law enforcement identification purposes, or to order the individual to show cause why the individual should not be required to submit a sample of blood or other body fluids for DNA law enforcement identification purposes.
  5. If a sample of blood or body fluids collected under this section does not contain sufficient material necessary to obtain accurate DNA identification, the crime laboratory may request a law enforcement officer or correctional personnel collect another sample for analysis and inclusion in the law enforcement identification databases.
  6. The laboratory shall retain DNA samples in accordance with laboratory DNA sample retention procedures.
  7. For purposes of this section, “conviction” and “convicted” means a plea of guilty or a finding of guilt by a court or a jury of one of the above-mentioned crimes, notwithstanding that the court suspended execution of sentence or deferred imposition of sentence in accordance with subsection 3 or 4 of section 12.1-32-02, or a felony offense was reduced to a misdemeanor offense in accordance with subsection 9 of section 12.1-32-02 or section 12.1-32-07.1.

Source:

S.L. 1995, ch. 325, § 3; 1997, ch. 124, § 8; 2001, ch. 302, § 1; 2003, ch. 276, § 1; 2003, ch. 469, § 5; 2005, ch. 294, § 1; 2007, ch. 285, § 1; 2007, ch. 286, § 1; 2011, ch. 242, § 1; 2021, ch. 399, § 1, effective April 16, 2021.

Effective Date.

The 2011 amendment of this section by section 1 of chapter 242, S.L. 2011 became effective August 1, 2011.

Notes to Decisions

Constitutionality.

Provisions of this section authorizing DNA testing for non-sexual felonies were rationally related to the legitimate government purposes of apprehending and identifying perpetrators of future sex-related and violent crimes, exonerating the innocent, and increasing cost efficiencies, and they satisfied the rational basis standard of review under an equal protection challenge. State v. Leppert, 2003 ND 15, 656 N.W.2d 718, 2003 N.D. LEXIS 21 (N.D. 2003).

Requiring an inmate to provide a sample under this section does not violate the right against self-incrimination. State v. Norman, 2003 ND 66, 660 N.W.2d 549, 2003 N.D. LEXIS 78 (N.D. 2003).

Retroactivity.

This section applies retroactively to inmates already incarcerated for certain crimes; therefore, a district court had no discretion in ordering an inmate convicted of felony murder in 1992 to provide a sample. State v. Norman, 2003 ND 66, 660 N.W.2d 549, 2003 N.D. LEXIS 78 (N.D. 2003).

31-13-04. DNA testing — Procedure — Immunity.

Samples of blood or other body fluids for DNA testing may only be obtained in a medically approved manner by a physician, registered nurse, licensed practical nurse, phlebotomist, medical technologist, or by other qualified personnel approved by the laboratory, and packaged and submitted in kits approved or provided by the laboratory and in accordance with rules adopted by the laboratory. No civil or criminal liability may attach to any individual authorized to draw or obtain a sample of blood or other body fluids from any individual for DNA testing, provided the sample of blood or other body fluids was drawn or obtained according to sampling techniques approved by the laboratory.

Source:

S.L. 1995, ch. 325, § 4; 2003, ch. 469, § 6; 2011, ch. 242, § 2.

Effective Date.

The 2011 amendment of this section by section 2 of chapter 242, S.L. 2011 became effective August 1, 2011.

31-13-05. DNA database established — How utilized.

The laboratory shall establish a centralized database of DNA identification records. The established system must be compatible with the procedures set forth in the national DNA identification index to ensure data exchange on a national level. The centralized DNA database must be used to assist federal, state, and local criminal justice and law enforcement agencies within and outside the state in the identification or prosecution of criminal offenses. The laboratory shall receive, analyze, and classify samples in compliance with section 31-13-04 and shall record the DNA result in a centralized database for identification and statistical purposes. The laboratory may contract with another laboratory for the analysis and classification of the samples. A report of the analysis certified by the laboratory is admissible in any court as prima facie evidence of the facts stated in the report.

Source:

S.L. 1995, ch. 325, § 5; 2003, ch. 276, § 2; 2003, ch. 469, § 7.

Collateral References.

Validity, construction, and operation of state DNA database statutes, 76 A.L.R.5th 239.

Law Reviews.

How Should North Dakota Approach the Admissibility of DNA: A Comprehensive Analysis of How Other Courts Approach the Admissibility of DNA, 72 N.D. L. Rev. 607 (1996).

31-13-06. Confidentiality of records.

Notwithstanding section 44-04-18, except as necessary for law enforcement purposes, all records produced from the samples taken as provided in this chapter must be securely stored and are confidential. However, the records must be available to:

  1. Any person who is the subject of a record.
  2. A public official or the official’s authorized agent who requires that information in connection with the discharge of the official’s official duties.
  3. A court whenever the court determines that the information is necessary for the determination of an issue before the court.

Source:

S.L. 1995, ch. 325, § 6.

31-13-07. Removal of DNA profiles from database.

  1. An individual whose DNA profile has been included in the database under this chapter may petition the district court to seal the court record on the grounds that the arrest that led to the inclusion of the DNA profile has not resulted in a felony charge within one year; has been resolved by a dismissal, acquittal, or misdemeanor conviction; has not resulted in a felony conviction; or the conviction on which the authority for including the DNA profile was based has been reversed or the case dismissed.
  2. The laboratory shall expunge all identifiable information in the database pertaining to the individual and destroy all samples from the individual upon receipt of a certified order. The detention, arrest, or conviction of an individual based upon database information is not invalidated if it is later determined that the specimens or samples were obtained or placed in the database by mistake or if the specimens or samples should have been expunged. The sealed record may not be opened even by order of the court.
  3. Civil or criminal liability may not attach to any individual or to any state or local governmental entity for the good-faith inclusion and retention of identifiable information in the database from a sample of blood or other body fluids which has been legally obtained.

Source:

S.L. 1995, ch. 325, § 7; 2003, ch. 276, § 3; 2003, ch. 469, § 8; 2007, ch. 211, § 3; 2007, ch. 285, § 2; 2011, ch. 242, § 3.

Effective Date.

The 2011 amendment of this section by section 3 of chapter 242, S.L. 2011 became effective August 1, 2011.

31-13-08. Rules.

The attorney general shall adopt rules pursuant to chapter 28-32 necessary to carry out provisions of the DNA database identification system. The rules must include procedures for collection, analysis, and classification of samples of blood and other body fluids, database system usage and integrity, and methods for contracting with another laboratory for the analysis and classification of samples.

Source:

S.L. 1995, ch. 325, § 8; 2003, ch. 469, § 9.

31-13-09. DNA profiles to be available to law enforcement — Penalty.

Upon payment of a reasonable fee established by the laboratory, the laboratory shall provide, upon the request of appropriate law enforcement agencies for use for official purposes, an updated list of names of individuals whose DNA profiles are stored in the database at the laboratory. Any person who disseminates, receives, or otherwise uses or attempts to use information in the database, knowing that the dissemination, receipt, or use is for a purpose other than as authorized by law, is guilty of a class A misdemeanor.

Source:

S.L. 1995, ch. 325, § 9; 2003, ch. 469, § 10.

31-13-10. Tampering with DNA sample testing — Penalty.

An individual who willfully tampers or attempts to tamper with a sample of blood or body fluids or a collection device or kit to alter the outcome of DNA testing is guilty of a class C felony. An individual who willfully possesses, distributes, or assists in the use of a device, chemical, or real or artificial sample of blood or body fluids intended to be used to alter the outcome of DNA testing is guilty of a class C felony.

Source:

S.L. 2011, ch. 242, § 4.

Effective Date.

This section became effective August 1, 2011.

CHAPTER 31-14 Uniform Unsworn Foreign Declarations Act

31-14-01. Definitions.

In this chapter:

  1. “Boundaries of the United States” means the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.
  2. “Law” includes the federal or a state constitution; a federal or state statute; a judicial decision or order; a rule of court; an executive order; and an administrative rule, regulation, or order.
  3. “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  4. “Sign” means with present intent to authenticate or adopt a record:
    1. To execute or adopt a tangible symbol; or
    2. To attach to or logically associate with the record an electronic symbol, sound, or process.
  5. “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
  6. “Sworn declaration” means a declaration in a signed record given under oath. The term includes a sworn statement, verification, certificate, and affidavit.
  7. “Unsworn declaration” means a declaration in a signed record that is not given under oath but is given under penalty of perjury.

Source:

S.L. 2011, ch. 243, § 2.

Effective Date.

This chapter became effective August 1, 2011.

31-14-02. Applicability.

This chapter applies to an unsworn declaration by a declarant who at the time of making the declaration is physically located outside the boundaries of the United States whether or not the location is subject to the jurisdiction of the United States. This chapter does not apply to a declaration by a declarant who is physically located on property that is within the boundaries of the United States and subject to the jurisdiction of another country or a federally recognized Indian tribe.

Source:

S.L. 2011, ch. 243, § 2.

31-14-03. Validity of unsworn declaration.

  1. Except as otherwise provided in subsection 2, if a law of this state requires or permits use of a sworn declaration, an unsworn declaration meeting the requirements of this chapter has the same effect as a sworn declaration.
  2. This chapter does not apply to:
    1. A deposition;
    2. An oath of office;
    3. An oath required to be given before a specified official other than a notary public;
    4. A document intended for recording in the real estate records in the office of county recorder; or
    5. An oath required by section 30.1-08-04.

Source:

S.L. 2011, ch. 243, § 2.

31-14-04. Required medium.

If a law of this state requires that a sworn declaration be presented in a particular medium, an unsworn declaration must be presented in that medium.

Source:

S.L. 2011, ch. 243, § 2.

31-14-05. Form of unsworn declaration.

An unsworn declaration under this chapter must be in substantially the following form:

I declare under penalty of perjury under the law of North Dakota that the foregoing is true and correct, and that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States. Executed on the day of , , at, . (date) (month) (year) (city or other location, and state) (country) (printed name) (signature)

Click to view

Source:

S.L. 2011, ch. 243, § 2.

31-14-06. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act [15 U.S.C. 7001 et seq.] but does not modify, limit, or supersede section 101(c) of that Act [15 U.S.C. 7001(c)], or authorize electronic delivery of any of the notices described in section 103(b) of that Act [15 U.S.C. 7003(b)].

Source:

S.L. 2011, ch. 243, § 2.

CHAPTER 31-15 Uniform Unsworn Domestic Declarations Act

Source:

S.L. 2019, hb1109, § 2, effective August 1, 2019.

31-15-01. Definitions.

In this chapter:

  1. “Boundaries of the United States” means the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.
  2. “Law” includes a statute, judicial decision or order, rule of court, executive order, and administrative rule, regulation, or order.
  3. “Record” means information inscribed on a tangible medium or stored in an electronic or other medium and which is retrievable in perceivable form.
  4. “Sign” means with present intent to authenticate or adopt a record:
    1. To execute or adopt a tangible symbol; or
    2. To attach to or logically associate with the record an electronic symbol, sound, or process.
  5. “Sworn declaration” means a declaration in a signed record given under oath. The term includes a sworn statement, verification, certificate, and affidavit.
  6. “Unsworn declaration” means a declaration in a signed record not given under oath but given under penalty of perjury.

Source:

S.L. 2019, ch. 277, § 2, effective August 1, 2019.

31-15-02. Applicability.

This chapter applies to an unsworn declaration by a declarant who at the time of making the declaration is physically located within the boundaries of the United States.

Source:

S.L. 2019, ch. 277, § 2, effective August 1, 2019.

31-15-03. Validity of unsworn declaration.

  1. Except as otherwise provided in subsection 2, if a law of this state requires or permits use of a sworn declaration, an unsworn declaration meeting the requirements of this chapter has the same effect as a sworn declaration.
  2. This chapter does not apply to:
    1. A deposition;
    2. An oath of office;
    3. An oath required to be given before a specified official other than a notary public;
    4. A document intended for recording in the real estate records in the office of county recorder; or
    5. An oath required by section 30.1-08-04.

Source:

S.L. 2019, ch. 277, § 2, effective August 1, 2019.

31-15-04. Required medium.

If a law of this state requires a sworn declaration be presented in a particular medium, an unsworn declaration must be presented in that medium.

Source:

S.L. 2019, ch. 277, § 2, effective August 1, 2019.

31-15-05. Form of unsworn declaration.

An unsworn declaration under this chapter must be substantially in the following form:

I declare, under penalty of perjury under the law of North Dakota, that the foregoing is true and correct.

Click to view

Signed on the day of , (month), (year) at , (city or other location, and state) (country) (printed name) (signature)

Click to view

Source:

S.L. 2019, ch. 277, § 2, effective August 1, 2019.

31-15-06. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, or supercedes the Electronic Signatures in Global and National Commerce Act [15 U.S.C. 7001 et seq.] but does not modify, limit, or supersede section 101(c) of that Act [15 U.S.C. 7001(c)], or authorize electronic delivery of any of the notices described in section 103(b) of that Act [15 U.S.C. 7003(b)].

Source:

S.L. 2019, ch. 277, § 2, effective August 1, 2019.