Adverse Possession.

The statute of limitations against adverse possession claimed by the state or a political subdivision is forty years. United States v. 202.76 Acres of Land, 439 F. Supp. 483, 1977 U.S. Dist. LEXIS 13602 (D.N.D. 1977).

Applicability.

This section limits the time in which the State may assert a cause of action for a wrong committed by another party against the State’s interest in real property, but does not dictate the time in which the State may obtain a right by prescriptive use. Nagel v. Emmons County N.D. Water Resource Dist., 474 N.W.2d 46, 1991 N.D. LEXIS 134 (N.D. 1991).

Public Corporations.

School districts and counties are within the terms of this statute. Rosedale Sch. Dist. v. Towner County, 56 N.D. 41, 216 N.W. 212, 1927 N.D. LEXIS 70 (N.D. 1927).

Adverse Possession.

—Question of Fact.

The determination of whether or not there has been an adverse use is a question of fact which will not be set aside on appeal unless it is clearly erroneous. Benson v. Taralseth, 382 N.W.2d 649, 1986 N.D. LEXIS 265 (N.D. 1986).

—Requirements.

To be entitled to a decree of adverse possession the property of another must be held by open and hostile possession for a specific time. Benson v. Taralseth, 382 N.W.2d 649, 1986 N.D. LEXIS 265 (N.D. 1986).

Northern portion of a property belonged to neighbors because the neighbors, and their predecessors in interest, continuously and exclusively possessed the land for the requisite period of time. The prior possessors built a stone wall and fire pit, drilled a well, and paid waterfront taxes on the land, while the neighbors used the water well, owned a dock on the shore, placed their picnic table on the property, moved their paddle boat alongside the dock, parked a mobile home trailer on part of the land, and paid waterfront taxes. Benson v. Feland Bros. Props., 2018 ND 29, 906 N.W.2d 98, 2018 N.D. LEXIS 22 (N.D. 2018).

Application.

District court did not err when it rejected a royalty interest holder’s argument that the statute barred a partnership’s claim to disputed interests because the holder asserted the statute applied in a conclusory fashion unsupported by analysis or relevant authority. Cont'l Res., Inc. v. Armstrong, 2021 ND 171, 965 N.W.2d 57, 2021 N.D. LEXIS 168 (N.D. 2021).

Application.

In a case where a county was seeking a formal judicial declaration of a public road under the specific language of N.D.C.C. § 24-07-01, an owner’s reliance upon N.D.C.C. § 28-01-04 was misplaced because the action was not one seeking the recovery of real property or the possession thereof. A specific statute controlled over the general one. McKenzie County v. Reichman, 2012 ND 20, 812 N.W.2d 332, 2012 N.D. LEXIS 20 (N.D. 2012).

Plain language of the statute states it applies in actions for the recovery or possession of real property, and as this was an action to recover real property, the statute applied. Markgraf v. Welker, 2015 ND 303, 873 N.W.2d 26, 2015 N.D. LEXIS 318 (N.D. 2015).

Whether the statute applied would depend on whether an implied trust was created and, if a trust existed, whether it was repudiated, and it was not appropriate to decide this issue on summary judgment. Markgraf v. Welker, 2015 ND 303, 873 N.W.2d 26, 2015 N.D. LEXIS 318 (N.D. 2015).

There was no evidence a trustee said or did anything in open contravention of the terms of the trust and acted in a manner amounting to a denial of the trust's existence. The Supreme Court concluded the district court did not err in finding the trust was not repudiated and the statute of limitations did not preclude plaintiffs' action. Markgraf v. Welker, 2017 ND 219, 902 N.W.2d 492, 2017 N.D. LEXIS 222 (N.D. 2017).

Burden of Proof.

The burden of proving adverse possession rests with the person alleging it and must be established by clear and convincing evidence. Benson v. Taralseth, 382 N.W.2d 649, 1986 N.D. LEXIS 265 (N.D. 1986).

Easement by Prescription.

The period prescribed to bar an action for recovery of real property in this state is 20 years. Thus, the required period of adverse use to acquire an easement by prescription is 20 years. Nagel v. Emmons County N.D. Water Resource Dist., 474 N.W.2d 46, 1991 N.D. LEXIS 134 (N.D. 1991).

Mortgages.

The twenty-year statute of limitations does not apply to a suit by a mortgagor against a mortgagee in possession. Nash v. Northwest Land Co., 15 N.D. 566, 108 N.W. 792 (1906), distinguished, Blessett v. Turcotte, 23 N.D. 417, 136 N.W. 945 (1912) and Page v. Smith, 33 N.D. 369, 157 N.W. 477, 1916 N.D. LEXIS 103 (N.D. 1916).

Possession.

Possession is the crucial factor under this section. Haas v. Bursinger, 470 N.W.2d 222, 1991 N.D. LEXIS 95 (N.D. 1991).

Possession by Acquiescence.

Property owner’s argument that boundary line was established by acquiescent possession during a twenty year period prior to the City taking title in 1979 failed, where no evidence was presented that the City recognized the boundary claimed by the owner and thus the twenty year period began to run only after the City relinquished its title to the property owner. James v. Griffin, 2001 ND 90, 626 N.W.2d 704, 2001 N.D. LEXIS 106 (N.D. 2001).

Because plaintiff possessed the disputed property within 20 years of commencing the action, and the 20-year time period for acquiescence under N.D.C.C. § 28-01-04 was not disturbed by defendants' removal of a fence, the district court did not err in finding the statutory requirement of 20 years was satisfied. Sauter v. Miller, 2018 ND 57, 907 N.W.2d 370, 2018 N.D. LEXIS 58 (N.D. 2018).

Prescription.

—Requirements.

The basic requirements for establishing a road by prescription are: (1) General, continuous, uninterrupted, and adverse use of the road, (2) by the public under a claim of right, (3) for a period equal to that for the limitation of real actions, i.e., twenty years. Hartlieb v. Sawyer Township Bd., 366 N.W.2d 486, 1985 N.D. LEXIS 310 (N.D. 1985).

Property Held by Trustee.

Before the statute of limitations on an action for adverse possession could begin to run against the beneficiary of a trust repudiated by the trustee, the beneficiary must have had knowledge of the repudiation, and the trustee was required to inform him of the acquisition of any interest in the trust property adverse to his own. Hodny v. Hoyt, 243 N.W.2d 350, 1976 N.D. LEXIS 236 (N.D. 1976).

Quiet Title Claims.

Where neither party had actual or constructive possession of the fifty percent mineral interest, neither parties’ quiet title claim to the mineral interest was barred by this section; in determining whether parties may maintain actions to quiet title to mineral interest under this section, possession is the crucial factor. Wehner v. Schroeder, 335 N.W.2d 563, 1983 N.D. LEXIS 340 (N.D. 1983).

Unless plaintiff was seized or possessed of the property at issue within 20 years before he began the quiet title action, he is barred from maintaining an action to quiet title to the property. Haas v. Bursinger, 470 N.W.2d 222, 1991 N.D. LEXIS 95 (N.D. 1991).

In a quiet title action, the district court did not err in granting summary judgment against plaintiffs and dismissing their claims against defendants as plaintiffs' action was time-barred based on the 20-year limitation period because, on appeal, plaintiffs attacked property transfers made in the 1950s, but plaintiffs failed to show the existence of a genuine issue of material fact as none of the submitted documents and materials established plaintiffs were seized or possessed of the property at issue within the preceding 20 years before the action was commenced. Hageness v. Davis, 2017 ND 132, 896 N.W.2d 251, 2017 N.D. LEXIS 130 (N.D.), cert. denied, — U.S. —, 138 S. Ct. 458, 199 L. Ed. 2d 330, 2017 U.S. LEXIS 6792 (U.S. 2017).

Right of Action.

An action for the recovery of realty or its possession cannot be maintained unless it appears that the plaintiff, his ancestor, predecessor, or grantor, was seized or possessed of the premises within twenty years before the commencement of the action. Bernier v. Preckel, 60 N.D. 549, 236 N.W. 243, 1931 N.D. LEXIS 202 (N.D. 1931).

Title by Prescription.

Title by prescription relates back to the inception of the use. Conlin v. Metzger, 77 N.D. 620, 44 N.W.2d 617, 1950 N.D. LEXIS 157 (N.D. 1950).

Collateral References.

Adverse possession, sufficiency as regards continuity of seasonable possession other than for agricultural or logging purposes, 24 A.L.R.2d 632.

Statute of limitations applicable to action for encroachment, 24 A.L.R.2d 903.

Title by or through adverse possession as marketable, 46 A.L.R.2d 544.

Adverse possession predicated upon grazing of livestock or gathering of natural crop, 48 A.L.R.3d 818.

Law Reviews.

The Growing Uncertainty of Real Estate Titles, 65 N.D. L. Rev. 1 (1989).

Compensation for Taking of Land.

An owner may bring an action against a township for compensation for land taken contrary to the statute any time before the town’s acquisition of title. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

Possession Required.

Because there was no actual possession of the mineral estate by a party and her predecessors in interest, their mere claim, for whatever length of time, gave them no rights under this section as against the record holders of the mineral estate. Sickler v. Pope, 326 N.W.2d 86, 1982 N.D. LEXIS 376 (N.D. 1982).

Because this section requires possession of the real property by the claimant, it was not applicable to an action to quiet title to the mineral interest where neither party to the action possessed the interest at issue for the requisite time. Wehner v. Schroeder, 335 N.W.2d 563, 1983 N.D. LEXIS 340 (N.D. 1983).

Royalty interests cannot be possessed until the minerals have been extracted from the ground, at which point they become personal property. Therefore, royalty interests cannot be possessed for purposes of the statute of limitations in N.D.C.C. § 28-01-05 or for purposes of adverse possession under N.D.C.C. § 47-06-03. Siana Oil & Gas Co., LLC v. Dublin Co., 2018 ND 164, 915 N.W.2d 134, 2018 N.D. LEXIS 177 (N.D. 2018).

Quieting Title.

This section did not apply to action to quiet title by mortgagor against the mortgagee in possession. Nash v. Northwest Land Co., 15 N.D. 566, 108 N.W. 792 (1906), distinguished, Blessett v. Turcotte, 23 N.D. 417, 136 N.W. 945 (1912) and Page v. Smith, 33 N.D. 369, 157 N.W. 477, 1916 N.D. LEXIS 103 (N.D. 1916).

Reformation of Lease.

Where the actual nature and substance of an action was for reformation of a ground lease, the twenty-year statute of limitations in this section did not apply to that equitable action for reformation, but the ten-year limitation under N.D.C.C. § 28-01-15(2) applied. Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 1996 N.D. LEXIS 214 (N.D. 1996).

Wild Grazing Land.

Where fence along north edge of disputed triangle of land was not erected for purpose of excluding adjoining landowner and where land, which was low and marshy and best suited for hunting, was used with larger tract for grazing and allowed to remain in wild state with fence having almost completely disappeared at time of quiet title trial, use of land was not sufficient to establish that it was held adversely, and no hostile possession was shown, so that title was not acquired by adverse possession. Woodland v. Woodland, 147 N.W.2d 590, 1966 N.D. LEXIS 146 (N.D. 1966).

Adverse Possession.

Analysis

• —Not Shown.
• —Requirements.

—Not Shown.

In an adverse possession action, the district court’s finding that the annual cutting of hay was not cultivation, continuous, and exclusive of the owner’s right of title and was not adverse to owner was supported by the owner’s testimony that he always allowed others to hay the disputed property for free because it was uneconomical to hay and he did not want the hay. Gimbel v. Magrum, 2020 ND 181, 947 N.W.2d 891, 2020 N.D. LEXIS 182 (N.D. 2020).

Burden of Proof.

Burden of proof is upon person claiming title by adverse possession and, where claimant fails to prove such adverse possession, presumption of possession by legal titleholders applies. Martin v. Rippel, 152 N.W.2d 332, 1967 N.D. LEXIS 82 (N.D. 1967).

Indian Country.

A private individual could not claim title to land by reason of adverse possession where such land was part of the “Indian Country”. Kreuger v. Schultz, 6 N.D. 310, 70 N.W. 269, 1896 N.D. LEXIS 33 (N.D. 1896).

Prescription.

—Requirements.

The basic requirements for establishing a road by prescription are: (1) General, continuous, uninterrupted, and adverse use of the road, (2) by the public under a claim of right, (3) for a period equal to that for the limitation of real actions, i.e., twenty years. Hartlieb v. Sawyer Township Bd., 366 N.W.2d 486, 1985 N.D. LEXIS 310 (N.D. 1985).

Court did not err in denying claim for adverse possession where claimant could not show that his hostile and exclusive possession complied with the statutory time requirement of 20 years. Gruebele v. Geringer, 2002 ND 38, 640 N.W.2d 454, 2002 N.D. LEXIS 36 (N.D. 2002).

Record Title.

Under the provisions of the statute the record title carries a presumption of possession. Enderlin Inv. Co. v. Nordhagen, 18 N.D. 517, 123 N.W. 390, 1909 N.D. LEXIS 58 (N.D. 1909).

Collateral References.

Occupancy of premises by both registered owner and another as notice of title or interest of latter, 2 A.L.R.2d 857.

Adverse possession, mortgagee’s possession before foreclosure as barring right of redemption, 7 A.L.R.2d 1131.

Possession by one claiming under or through deed or mortgage by cotenant as adverse to other cotenants, 32 A.L.R.2d 1214, 1223.

Possession of mortgagor or successor in interest as adverse to purchaser at foreclosure sale, 38 A.L.R.2d 348.

Adverse possession of landlord as affected by tenant’s recognition of title of third person, 38 A.L.R.2d 826.

Reputation as to ownership or claim as admissible on question of adverse possession, 40 A.L.R.2d 770.

Adverse possession of executor or administrator or his vendee as continuous with that of ancestry and heirs, 43 A.L.R.2d 1061.

Possession and treatment of trust realty by trustee as sufficient repudiation of express trust to cause statute of limitations to run, 54 A.L.R.2d 13, 147.

What acts, claims, circumstances, instruments, color of title, judgment, or thing of record will ground adverse possession in life tenant as against remaindermen or reversioners, 58 A.L.R.2d 299.

Presumptions and evidence respecting identification of land on which property taxes were paid to establish adverse possession, 36 A.L.R.4th 843.

Burden of Proof.

Quieting title to property in favor of property owners and dismissal of a neighbor's claim for adverse possession was appropriate because the neighbor failed to establish by clear and convincing evidence that the neighbor, or the neighbor's predecessors-in-interest, had actual, visible, and continuous possession of the disputed property for the required period of time. Moody v. Sundley, 2015 ND 204, 868 N.W.2d 491, 2015 N.D. LEXIS 218 (N.D. 2015).

Color of Title.

Adverse claimant who did not possess any deeds and did not prove payment of taxes on any of property claimed failed to satisfy burden of proving color of title. Martin v. Rippel, 152 N.W.2d 332, 1967 N.D. LEXIS 82 (N.D. 1967).

Cotenants.

Assuming that cotenant’s possession has been “adverse” within the meaning of this section and that he or his predecessors have been in actual open continuous and undisputed occupation and possession of the premises for the statutory period, the evidence still must show an ouster of the rights of the other cotenants in order to establish title by adverse possession as against the other cotenants. Simons v. Tancre, 321 N.W.2d 495, 1982 N.D. LEXIS 286 (N.D. 1982).

Partial Possession of Tract.

Possession of a part of a tract under a deed is presumed to be possession of all the real property described in the deed. Gale v. Shillock, 29 N.W. 661, 4 Dakota 182, 1886 Dakota LEXIS 12 (Dakota 1886), aff'd, 144 U.S. 509, 12 S. Ct. 674, 36 L. Ed. 521, 1892 U.S. LEXIS 2094 (U.S. 1892).

Payment of Taxes.

The payment of taxes is not essential to acquiring title by adverse possession. Power v. Kitching, 10 N.D. 254, 86 N.W. 737, 1901 N.D. LEXIS 31 (N.D. 1901).

Collateral References.

Adverse possession predicated upon grazing of livestock or gathering of natural crop, 48 A.L.R.3d 818.

Presumptions and evidence respecting identification of land on which property taxes were paid to establish adverse possession, 36 A.L.R.4th 843.

Burden of Proof.

Quieting title to property in favor of property owners and dismissal of a neighbor's claim for adverse possession was appropriate because the neighbor failed to establish by clear and convincing evidence that the neighbor, or the neighbor's predecessors-in-interest, had actual, visible, and continuous possession of the disputed property for the required period of time. Moody v. Sundley, 2015 ND 204, 868 N.W.2d 491, 2015 N.D. LEXIS 218 (N.D. 2015).

Wild Grazing Land.

Where fence along north edge of disputed triangle of land was not erected for purpose of excluding adjoining landowner and where land, which was low and marshy and best suited for hunting, was used with larger tract for grazing and allowed to remain in wild state with fence having almost completely disappeared at time of quiet title trial, use of land was not sufficient to establish that it was held adversely, and no hostile possession was shown, so that title was not acquired by adverse possession. Woodland v. Woodland, 147 N.W.2d 590, 1966 N.D. LEXIS 146 (N.D. 1966).

Collateral References.

Presumptions and evidence respecting identification of land on which property taxes were paid to establish adverse possession, 36 A.L.R.4th 843.

Adverse Possession.

For acts to be adverse, they must not only be actual, but also visible, continuous, notorious, distinct, and hostile, and of such character as to indicate unmistakably an assertion of claim of exclusive ownership by the occupant. Woodland v. Woodland, 147 N.W.2d 590, 1966 N.D. LEXIS 146 (N.D. 1966).

To be adverse, acts set forth in this section must be not only actual but also visible, continuous, notorious, distinct, and hostile and of such character as to indicate unmistakably an assertion of claim of exclusive ownership by the occupant; and inclosure is not sufficient to establish title by adverse possession where it is only temporary or is not maintained for period of limitation prescribed; where fence was built in 1936, largely destroyed in 1943 and not rebuilt until 1959, claimant did not establish adverse possession by substantial inclosure for period of at least twenty years; where field was planted in crops for only four years and was used periodically thereafter for pasturage of cattle and for hunting, no adverse possession was established. Martin v. Rippel, 152 N.W.2d 332, 1967 N.D. LEXIS 82 (N.D. 1967).

District court did not err in deciding plaintiffs had acquired their interest in the platted roadway by adverse possession where the evidence at trial showed that at least since the 1960s, no such roadway had ever existed or been used by the public, and thus, the platted roadway was subject to an adverse possession claim. Larson v. Jon Tonneson, 2019 ND 230, 933 N.W.2d 84, 2019 N.D. LEXIS 235 (N.D. 2019).

Plaintiffs’ use and occupation of the disputed property were sufficient to establish the requisite elements for the statutory period where the placing of trailers, sheds, a well, and other activities were consistent with the character and nature of the property as recreational lake property, and the wooded area, while not cleared or disturbed, had been used and possessed to provide privacy. Larson v. Jon Tonneson, 2019 ND 230, 933 N.W.2d 84, 2019 N.D. LEXIS 235 (N.D. 2019).

Adverse Possession by Cotenant.

Mere permissive possession by a cotenant is presumed to be in the exercise of his rights as a cotenant unless it is clearly shown that such possession is not only actual but is exclusive and hostile as well; and where all of the acts relied upon by a cotenant to establish his adverse possession of the common property are consistent with his ownership of the common property as a tenant in common with defendants, an action by the plaintiff-cotenant to quiet title to the common property in himself by reason of his adverse possession of such property for the statutory period will not succeed. Hagen v. Hagen, 137 N.W.2d 234, 1965 N.D. LEXIS 121 (N.D. 1965).

Public Corporations.

Public corporations may acquire property by adverse possession. United States v. 202.76 Acres of Land, 439 F. Supp. 483, 1977 U.S. Dist. LEXIS 13602 (D.N.D. 1977).

River Bank Accretions.

Even if title to river bank accretions was dependent upon adverse possession in owners of bank as against owners of river island, bank owners had established adverse possession where island formerly located in river had completely eroded away by 1933 and bank owners were thereafter in actual, notorious and adverse possession of accreted land in area formerly occupied by island. Peterson v. United States, 384 F.2d 664, 1967 U.S. App. LEXIS 4768 (8th Cir. N.D. 1967).

Collateral References.

Presumptions and evidence respecting identification of land on which property taxes were paid to establish adverse possession, 36 A.L.R.4th 843.

Adverse Possession Before Rental Agreement.

Where defendant and predecessor had been in possession of disputed strip of land for more than twenty years before their rental from plaintiff’s father of land which included disputed strip, defendant and predecessor had actual adverse possession of strip for more than twenty years before relationship of landlord and tenant came into existence, and thus doctrine that tenant cannot hold adversely to his landlord was inapplicable. Trautman v. Ahlert, 147 N.W.2d 407, 1966 N.D. LEXIS 153 (N.D. 1966).

Former Tenants.

In an action to settle boundary dispute, defendants failed to prove adverse possession for requisite twenty-year period, since for a portion of the period they were tenants and operation of this section required that their possession could not commence until former status as tenants terminated. Odegaard v. Craig, 171 N.W.2d 133, 1969 N.D. LEXIS 82 (N.D. 1969).

Purchase of Property at Tax Sale.

In action by heirs of deceased landlord to quiet title, tenant was not estopped from asserting a title adverse to his landlord where he purchased the land from the county, which acquired it at a tax sale. Klemesrud v. Blikre, 75 N.W.2d 522, 1956 N.D. LEXIS 104 (N.D. 1956).

Where no landlord-tenant relationship exists at the time a county sells property acquired by it by tax title, a former tenant is not barred by this section from purchasing the property from the county and such purpose does not inure to the benefit of the former landlord. Brown v. Otesa, 80 N.W.2d 92, 1956 N.D. LEXIS 162 (N.D. 1956).

Reentry of Land.

Where a party reenters land after his tenancy has been terminated, any presumption that might have been created by this section was rebutted. Wilson v. Divide County, 76 N.W.2d 896, 1956 N.D. LEXIS 121 (N.D. 1956).

Tenant Acquiring Other Title.

When the relation of landlord and tenant shall have existed the continued possession of the land by the tenant thereafter shall be presumed to be the possession of the landlord until the expiration of twenty years from the termination of the tenancy or the last payment of rent, even if the tenant has acquired some other title to the property adverse to the landlord. Wilson v. Divide County, 76 N.W.2d 896, 1956 N.D. LEXIS 121 (N.D. 1956).

Collateral References.

Adverse possession of landlord as affected by tenant’s recognition of title of third person, 38 A.L.R.2d 826.

Accrual of Actions.

When action for the reformation of ground lease accrued based upon the question of when a party acquired, or in the exercise of reasonable diligence should have acquired, knowledge of a mutual mistake was a question of fact which was not appropriate for summary judgment. Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 1996 N.D. LEXIS 214 (N.D. 1996).

Two companies that acquired oil and gas interests that belonged to a third company (“debtor”) while the debtor was in Chapter 7 bankruptcy were not barred by N.D.C.C. § 28-01-15 from seeking reformation of documents that transferred the debtor's interests because they discovered the fact that there were problems with the documents less than ten years before they sought reformation, and the court was allowed under N.D.C.C. § 9-06-07 to consider extrinsic evidence to determine the intent of the bankruptcy trustee when he sold the debtor's property, and to order reformation of the documents pursuant to N.D.C.C. § 32-04-17 to the extent they did not accurately convey interests the trustee intended to sell. Great Plains Royalty Corp. v. Earl Schwartz Co., 2015 Bankr. LEXIS 883 (Bankr. D.N.D. Mar. 18, 2015).

Affirmative Defense.

In a mortgage foreclosure proceeding, a mortgagor was precluded from raising an issue based on the statute of limitations on appeal because the mortgagor failed to raise the statute of limitations as an affirmative defense in his answer or in response to the mortgagee’s motion for summary judgment. Gustafson v. Poitra, 2008 ND 159, 755 N.W.2d 479, 2008 N.D. LEXIS 157 (N.D. 2008).

Child Support.

The statute of limitations prescribed in this section was applied to action seeking recovery of pre-1987 child support arrearages. Fuson v. Schaible, 494 N.W.2d 593, 1992 N.D. LEXIS 271 (N.D. 1992).

Constructive Trust.

Subsection 1 of this section does not apply to an action brought to impose and enforce a constructive trust so as to prevent the unjust enrichment of one wrongfully interfering with the owner’s possession of property. This is not an “action upon a judgment or decree”. Loberg v. Alford, 372 N.W.2d 912, 1985 N.D. LEXIS 382 (N.D. 1985).

Contract Affecting Title to Real Property.

—In General.

In action for specific performance of contract which granted a provisional qualified easement across the landowner’s land to construct a farm-to-market road, trial court properly ruled that the statute of limitations to be applied is this section due to the fact that the landowner’s contract with the county was contained in an instrument granting the county an easement across the land. Huber v. Oliver County, 529 N.W.2d 179, 1995 N.D. LEXIS 32 (N.D. 1995).

Statute of limitations exception, N.D.C.C. § 47-19.1-11, in the Marketable Record Title Act, N.D.C.C. § 47-19.1-01, did not operate to bar the opposing parties’ claims to land that the claimant asserted the claimant owned, as the exception permitted the opposing parties to challenge the claimant’s action based on a contract for the sale of lands in a case where the claimant asserted ownership based on an allegedly unbroken claim of title to an interest in land and possession of land. As a result, the opposing parties could challenge the claimant’s right to ownership of the land under N.D.C.C. § 28-01-15(2), and could prevail because the record showed that the claimant had not filed a claim for ownership to the land within 10 years of the due date of the last payment on the indebtedness, as was required by N.D.C.C. § 28-01-42. Locken v. Locken, 2011 ND 90, 797 N.W.2d 301, 2011 N.D. LEXIS 88 (N.D. 2011).

—Reformation of Deed.

An action for reformation of a deed accrues, not at the time of execution of the instrument in question, but at the time the facts which constitute the mistake and form the basis for reformation have been, or in the exercise of reasonable diligence should have been, discovered by the party applying for relief; therefore, whether or not this section and N.D.C.C. § 28-01-16 bar a reformation action depends upon what time the facts constituting the mistake and forming the basis for reformation were discovered or in the exercise of reasonable diligence should have been discovered. Wehner v. Schroeder, 335 N.W.2d 563, 1983 N.D. LEXIS 340 (N.D. 1983).

Ten-year statute of limitations in subsection (2) applied to action for reformation of quit claim deed for title to real property. City of Fargo v. D.T.L. Props., 1997 ND 109, 564 N.W.2d 274, 1997 N.D. LEXIS 103 (N.D. 1997).

District court properly found an oil company’s quiet title action was untimely and awarded the mineral interests at issue to the landowners because the oil company, as a purchaser, was on constructive notice of any flaws in the title record, and a simple examination of the title records would have revealed the discrepancy between the 1959 contract for deed, which reserved the oil and mineral rights to the original grantor, and the warranty deed, which did not, and, even using the last transaction on the property involving the oil company or its predecessors in interest, which took place in May 1990, as the time in which the discrepancy accrued, the 10-year statute of limitations had run. W. Energy Corp. v. Stauffer, 2019 ND 26, 921 N.W.2d 431, 2019 N.D. LEXIS 15 (N.D. 2019).

—Reformation of Lease.

Where the actual nature and substance of an action was for reformation of a ground lease, the twenty-year statute of limitations in N.D.C.C. § 28-01-05 did not apply to that equitable action for reformation, but the ten-year limitation under subsection (2) applied. Diocese of Bismarck Trust v. Ramada, Inc., 553 N.W.2d 760, 1996 N.D. LEXIS 214 (N.D. 1996).

County Debt.

An action against a county segregated from another county for indebtedness of the latter, and made a charge upon it by statute, is not within the statute of limitations. Burleigh County v. Kidder County, 20 N.D. 27, 125 N.W. 1063, 1910 N.D. LEXIS 58 (N.D. 1910).

Equitable Estoppel.

Although the lessee argued that the railroad’s statute of limitations defense should be precluded by the doctrine of equitable estoppel, the North Dakota Supreme Court found that the lessee did not properly raise the issue of the doctrine of equitable estoppel before the district court; therefore, he was precluded from raising the doctrine on appeal, and the statute of limitations time barred the lessee’s claims pertaining to underground fuel tanks located on the property. Rutherford v. BNSF Ry. Co., 2009 ND 88, 765 N.W.2d 705, 2009 N.D. LEXIS 94 (N.D. 2009).

Foreclosure of Chattel Mortgage.

An action to foreclose a chattel mortgage may be commenced within ten years in accordance with contract set forth therein, no other period being prescribed. Baird v. Bartholomay, 70 N.D. 332, 294 N.W. 367, 1940 N.D. LEXIS 177 (N.D. 1940).

Foreign Judgment.

Action brought in this state upon a judgment of a sister state is governed by this section’s ten-year statute of limitations. Yusten v. Monson, 325 N.W.2d 285, 1982 N.D. LEXIS 363 (N.D. 1982).

Where 1980 South Dakota judgment arising from an action brought on a 1959 South Dakota judgment constituted a new judgment under South Dakota law, this section’s statute of limitations began to run from the date of the 1980 judgment in an action in this state on the 1980 judgment. Yusten v. Monson, 325 N.W.2d 285, 1982 N.D. LEXIS 363 (N.D. 1982).

Joint and Several Note.

The running of limitations in favor of one of the makers of a joint and several note is not suspended by a payment by the other. Langlie v. Loge, 59 N.D. 399, 230 N.W. 211, 1930 N.D. LEXIS 155 (N.D. 1930).

Judgment Debtor Absent from State.

Under the provision that a judgment may be enforced by execution at any time within ten years after its entry, a judgment cannot be properly enforced by execution issued after that time, though the judgment debtor has been continually absent from the state during such time, and the judgment remains in force for that reason. Weisbecker v. Cahn, 14 N.D. 390, 104 N.W. 513, 1905 N.D. LEXIS 54 (N.D. 1905).

The absence of the judgment debtor from this state tolls the statute of limitations, and the judgment, though dormant so far as it relates to liens and for the purposes of execution, is not dead, and will support an action against the judgment debtor after ten years have elapsed. Union Nat'l Bank v. Ryan, 23 N.D. 482, 137 N.W. 449, 1912 N.D. LEXIS 114 (N.D. 1912).

Judgment Liens.

The lien of judgment is purely statutory. It expires after ten years from the date of its docketing in the county where it was rendered unless renewed. Groth v. Ness, 65 N.D. 580, 260 N.W. 700, 1935 N.D. LEXIS 143 (N.D. 1935).

The lien of a judgment for alimony expires after ten years from the date of its docketing in the county where rendered unless renewed. Leifert v. Wolfer, 74 N.D. 746, 24 N.W.2d 690, 1946 N.D. LEXIS 97 (N.D. 1946).

District court erred in denying a default judgment and in dismissing a judgment creditor’s action to renew a prior judgment because the creditor’s pleading was clearly an action on the original judgment seeking to renew the judgment, not an attempt to bring a “duplicate” action on the original debt, and the action was commenced by personal service upon the debtor within the 10-year statutory period. Ford Motor Credit Co., LLC v. Halvorson, 2013 ND 216, 2013 N.D. LEXIS 208 (N.D. 2013).

Judgments.

The statute which authorizes a justice to issue execution within five years after the entry of the judgment, and not afterwards, is a limitation upon the remedy by justice court execution, and not upon the life of the judgment. Holton v. Schmarback, 15 N.D. 38, 106 N.W. 36, 1905 N.D. LEXIS 104 (N.D. 1905).

Lessening of Statutory Period.

The legislative assembly may lessen the statutory period within which an action may be brought. Merchants Nat'l Bank v. Braithwaite, 7 N.D. 358, 75 N.W. 244, 1898 N.D. LEXIS 62 (N.D. 1898).

The legislative assembly may lessen the statutory period even as to existing causes of action, if the suitor has a reasonable time in which to sue after the statute making the change is enacted. Merchants Nat'l Bank v. Braithwaite, 7 N.D. 358, 75 N.W. 244, 1898 N.D. LEXIS 62 (N.D. 1898).

In any case in which the legislative assembly shortens a statutory period of limitations, and makes the amended act apply to existing causes of action, it must fix a time within which an action may be brought upon such existing causes. Osborne v. Lindstrom, 9 N.D. 1, 81 N.W. 72, 1899 N.D. LEXIS 145 (N.D. 1899); Power v. Kitching, 10 N.D. 254, 86 N.W. 737, 1901 N.D. LEXIS 31 (N.D. 1901).

Liens.

Lapse of time will not bar the remedy to enforce a tax lien against land. Wells County v. McHenry, 7 N.D. 246, 74 N.W. 241, 1898 N.D. LEXIS 57 (N.D. 1898).

A cause of action for the enforcement of a lien upon or other right to specific property first accrues when the right to resort to that remedy arises. Paine v. Dodds, 14 N.D. 189, 103 N.W. 931, 116 Am. St. Rep. 674 (1905), decided prior to the enactment of Chapter 5, p. 9, of the 1905 Laws; distinguished, Baird v. Larson, 69 N.D. 795, 291 N.W. 545, 1940 N.D. LEXIS 210 (N.D. 1940).

Quiet Title Actions.

This section does not apply to a quiet title action. Sabot v. Fox, 272 N.W.2d 280, 1978 N.D. LEXIS 185 (N.D. 1978).

Royalties.

In a case in which plaintiff alleged that defendant petroleum company wrongfully deducted certain costs from gas royalties paid to plaintiff under a lease between the parties, the district court properly applied the ten-year statute of limitations in N.D.C.C. § 28-01-15(2) to plaintiff's breach of contract action for the underpayment of royalties. The six-year statute of limitations in N.D.C.C. § 28-01-16 did not apply. Kittleson v. Grynberg Petro. Co., 2016 ND 44, 876 N.W.2d 443, 2016 N.D. LEXIS 43 (N.D. 2016).

Obligation to pay royalties under an oil and gas lease is a contract contained in a conveyance or instrument affecting title to real property within the meaning of N.D.C.C. § 28-01-15(2). Kittleson v. Grynberg Petro. Co., 2016 ND 44, 876 N.W.2d 443, 2016 N.D. LEXIS 43 (N.D. 2016).

Collateral References.

What constitutes a contract in writing within statute of limitations, 3 A.L.R.2d 809.

Mortgagee’s possession before foreclosure, commencement of limitations by, barring right of redemption, 7 A.L.R.2d 1131.

What statute of limitation governs action to reform mortgage, 36 A.L.R.2d 687.

Acceptance of past-due interest, default in payment of which accelerates maturity of note or mortgage, as suspending the statute of limitations, 97 A.L.R.2d 997.

Law Reviews.

North Dakota’s Ten-Year Statute of Limitations, 28 N.D. L. Rev. 159 (1952).

North Dakota Supreme Court Review (Locken v. Locken),see 87 N.D. L. Rev. 419 (2011).

In General.

Statutes of limitation are designed to prevent the plaintiff’s enforcement of stale claims when, through the lapse of time, evidence regarding the claim has become difficult to procure or even lost entirely. Erickson v. Scotsman, Inc., 456 N.W.2d 535, 1990 N.D. LEXIS 121 (N.D. 1990).

Accident or Trauma.

When there is a perceptible personal injury caused by an accident or trauma, the statute of limitations starts to run at the time of the injury. Erickson v. Scotsman, Inc., 456 N.W.2d 535, 1990 N.D. LEXIS 121 (N.D. 1990).

Where the plaintiff fell in a pool of water, the injury to the plaintiff’s ankle by accident or trauma was sufficient to put plaintiff on notice that her rights had been violated and her cause of action accrued at the time of her injury. Erickson v. Scotsman, Inc., 456 N.W.2d 535, 1990 N.D. LEXIS 121 (N.D. 1990).

Accrual of Cause of Action.

—In General.

For purposes of this section, a cause of action or claim for relief does not accrue until the aggrieved party discovers the facts which constitute the basis for its cause of action or claim for relief. Hebron Pub. Sch. Dist. No. 13 v. United States Gypsum Co., 475 N.W.2d 120, 1991 N.D. LEXIS 163 (N.D. 1991).

Cause of action accrues when the right to commence it comes into existence; occurring with the conjunction of damage and wrongful act so that it can be brought in a court of law without being subject to dismissal for failure to state a claim. Keller v. Clark Equip. Co., 474 F. Supp. 966, 1979 U.S. Dist. LEXIS 10366 (D.N.D. 1979).

Inventor’s action against marketer of invention for negligent failure to file patent application didn’t accrue until 1972 where the failure to timely file occurred in 1962, but inventor suffered no injury until 1972 when the marketer stopped paying inventor the royalties to which the patent entitled him under the parties’ agreement. Keller v. Clark Equip. Co., 715 F.2d 1280, 1983 U.S. App. LEXIS 24991 (8th Cir. N.D. 1983), cert. denied, 464 U.S. 1044, 104 S. Ct. 713, 79 L. Ed. 2d 176, 1984 U.S. LEXIS 595 (U.S. 1984).

The tax commissioner’s cause of action accrued when the taxpayer’s taxes became due under subsection 1 of N.D.C.C. § 57-51-05. Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 1987 N.D. LEXIS 354 (N.D. 1987).

Because this provision is silent on when an action accrues, the determination is left to the court. Kuntz v. Muehler, 1999 ND 215, 603 N.W.2d 43, 1999 N.D. LEXIS 247 (N.D. 1999).

Any cause of action alleged by plaintiff which accrued on or after April 13, 1998 was not time barred under N.D.C.C. § 28-01-16; however, the ongoing injuries as alleged by plaintiff, attributable in part to a corporate “freeze-out,” did not turn the case into a continuing tort. The facts as alleged did not support a continuing tort but instead a series of separate torts combined in one lawsuit with separate and successive injuries, as the defendants’ acts were not interdependent but each constituted a potential breach of fiduciary duty standing alone. Therefore, the claims that accrued before April 13, 1998 were barred by the six-year statute of limitations. Roemmich v. Eagle Eye Dev., LLC, 386 F. Supp. 2d 1089, 2005 U.S. Dist. LEXIS 20181 (D.N.D. 2005), aff'd, 526 F.3d 343, 2008 U.S. App. LEXIS 10239 (8th Cir. N.D. 2008).

District court did not err in finding that the six-year statute of limitations barred plaintiff’s action alleging that defendant wrongfully possessed his investment funds; a reasonable person should have known a cause of action existed after repeatedly requesting a return of his funds for years without success, and thus plaintiff should have known defendant was not going to return the money no later than 2007, and his cause of action should have been brought no less than six years later. Pettinger v. Carroll, 2018 ND 140, 912 N.W.2d 305, 2018 N.D. LEXIS 144 (N.D. 2018).

District court properly granted a motion filed by a personal representative’s attorney for summary judgment in a probate claimant’s action for fraud and injury to person because the claims were barred by the six-year statute of limitations where the claimant was aware of facts sufficient to put him on notice of a potential claim against the attorney for allegedly misleading him during the probate and by dismissing his claim against the estate. Solberg v. McKennett, 2021 ND 44, 956 N.W.2d 767, 2021 N.D. LEXIS 56 (N.D. 2021).

—Actions Arising from Divorce Judgment.

Where ex-husband sued ex-wife alleging fraud, criminal conversion, and breach of contract arising out of their 1973 divorce judgment and an alleged alteration of their marital termination agreement, the record showed that he knew of the allegedly altered agreement and the divorce judgment incorporating it for more than six years before filing his complaint, and thus his complaint was barred by the statute of limitations. Westerso v. Rustad, 517 N.W.2d 404, 1994 N.D. LEXIS 121 (N.D. 1994).

—Asbestos Contamination.

In a claim against a manufacturer alleging asbestos contamination, the district court erred when it instructed the jury that the issue for purposes of determining when the statute of limitations began to run was when plaintiff learned of the presence of asbestos in its building; instead, the proper question was when plaintiff could have learned, with the exercise of reasonable diligence, that its building had been contaminated by asbestos. MDU Resources Group v. W.R. Grace & Co., 14 F.3d 1274, 1994 U.S. App. LEXIS 1289 (8th Cir. N.D.), cert. denied, 513 U.S. 824, 115 S. Ct. 89, 130 L. Ed. 2d 40, 1994 U.S. LEXIS 5629 (U.S. 1994).

Action Against State.

Where a tenured professor at a state university was dismissed for good cause, the three year statute of limitations in N.D.C.C. § 28-01-22.1. applied to his breach of contract suit against the state board of education, not the six year period in this section. Dimond v. State, 2001 ND 208, 637 N.W.2d 692, 2001 N.D. LEXIS 238 (N.D. 2001).

Applicability.

Grain builder did not have an implied indemnity claim against the manufacturer where it did not show any special circumstances in the relationship of the parties which would give rise to a right of implied indemnification against the manufacturer; the four-year statute of limitations governing contracts for the sale of goods applied, N.D.C.C. § 41-02-104, not the six-year contract statute of limitations, N.D.C.C. § 28-01-16; the district court properly concluded that the builder’s action against the manufacturer was time barred as it commenced suit approximately six months after the statute of limitations had run. Superior, Inc. v. Behlen Mfg. Co., 2007 ND 141, 738 N.W.2d 19, 2007 N.D. LEXIS 143 (N.D. 2007).

District court, which found that plaintiffs each owned a 1/4 interest in a well on defendant’s property, did not abuse its discretion by refusing to allow defendant to amend her answer to allege a statute of limitations affirmative defense; because plaintiffs were seeking declaratory relief, the action was not subject to the six-year limitation in N.D.C.C. § 28-01-16(1). Niles v. Eldridge, 2013 ND 52, 828 N.W.2d 521, 2013 N.D. LEXIS 44 (N.D. 2013).

District court did not err in finding that the six-year statute of limitations set forth in N.D.C.C. § 28-01-16 barred a minority shareholder's claims related to his ownership interest in a family owned corporation. The minority shareholder's caused of action accrued in spring 2000, but he did not file the action until September 2014. Larson v. Midland Hosp. Supply, 2016 ND 214, 891 N.W.2d 364, 2016 N.D. LEXIS 213 (N.D. 2016).

Applicability of Section 28-01-24.

Because N.D.C.C. § 28-01-24 is only applicable when an action is otherwise barred by the passage of time, it is inapplicable in an action for relief on the ground of fraud. Phoenix Assurance Co. v. Runck, 366 N.W.2d 788, 1985 N.D. LEXIS 299 (N.D. 1985).

Assessments of Gross Production Taxes.

The general six-year statute of limitations in subsection 2 applies to assessments for gross production taxes. Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 1987 N.D. LEXIS 354 (N.D. 1987).

Assignment of Right to Sue.

Plaintiff who failed to point to any evidence supporting either an oral or written assignment of the right to sue for rescission could not sue for rescission. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 1990 N.D. LEXIS 176 (N.D. 1990).

Auto Accidents.

Six-year statute of limitations provided in this section is applicable to a negligence action against a “secured person” under Auto Accident Reparations Act, for personal injury resulting from an auto accident, and such action filed within six-year statute of limitations is not barred by $1,000 medical expense threshold if plaintiff can, in good faith, allege and establish at trial that his total medical expenses will exceed $1,000, including those medical expenses incurred within six-year statute of limitations period and those which, with reasonable medical certainty, will be incurred in future beyond limitations period. Calavera v. Vix, 356 N.W.2d 901, 1984 N.D. LEXIS 412 (N.D. 1984).

Breach of Fiduciary Duty.

Six-year limitations period under N.D.C.C. § 28-01-16 was properly applied to breach of fiduciary duty and “freeze-out” claims brought by a minority owner in a limited liability company; the claims were essentially the same, and breach of fiduciary duty actions fell within N.D.C.C. § 28-01-16. The claims fell within N.D.C.C. § 28-01-16(2) because they were based on the North Dakota Limited Liability Company Act, N.D.C.C. §§ 10-32-01 et seq., which did not expressly provide a statute of limitations; the claims also fell within N.D.C.C. § 28-01-16(5), as they involved an alleged injury not arising from contract. Roemmich v. Eagle Eye Dev., LLC, 526 F.3d 343, 2008 U.S. App. LEXIS 10239 (8th Cir. N.D. 2008).

Co-trustee’s argument that the breach of fiduciary duty claims were time-barred was rejected where his argument that the trust terminated upon the surviving spouse’s death had been rejected, he did not assert there were trustee reports to trigger the operation of the statute of limitations under N.D.C.C. § 59-18-05(1), nor had he marshaled a separate argument about when the trustee discovered facts constituting the basis for a claim. Hogen v. Hogen (In re Curtiss A. Hogen Trust B), 2018 ND 117, 911 N.W.2d 305, 2018 N.D. LEXIS 122 (N.D. 2018).

Breach of Warranty.

Although the six-year statute of limitations under this section applies to product liability actions based upon negligence or strict liability, N.D.C.C. § 41-02-104 applies to breach of warranty claims involving transactions in goods which result in personal injuries to parties who are not in privity. Spieker v. Westgo, Inc., 479 N.W.2d 837, 1992 N.D. LEXIS 14 (N.D. 1992).

Chattel Mortgage.

An action to foreclose a chattel mortgage may be maintained within ten years after the cause of action has accrued. Baird v. Bartholomay, 70 N.D. 332, 294 N.W. 367, 1940 N.D. LEXIS 177 (N.D. 1940).

Cities.

Where city gave timely notice of single causal defect resulting in deficiencies in construction of sewer and waterworks improvements, recovery was allowed for city’s cost of repairing deficiencies discovered within period prescribed in this section but after expiration of warranty period prescribed in contract. Wahpeton v. Drake-Henne, Inc., 215 N.W.2d 897, 1973 N.D. LEXIS 92, 1973 N.D. LEXIS 93 (N.D. 1973), cert. denied, 419 U.S. 986, 95 S. Ct. 245, 42 L. Ed. 2d 194, 1974 U.S. LEXIS 3133 (U.S. 1974).

Civil Rights Actions.

This is the statute covering personal injury actions which is to be applied in those 42 USCS § 1983 civil rights actions to which North Dakota law applies. Carpenter v. Williams County, 618 F. Supp. 1293, 1985 U.S. Dist. LEXIS 15484 (D.N.D. 1985).

Collection of Child Support Arrearages Through the Tax Intercept Procedure.

Attempted collection of child support arrearages through the tax intercept procedures is not an ordinary proceeding in a court of justice, but rather is in the form of an administrative proceeding conducted before the agency. Therefore, the statute of limitations imposed by this section does not apply to the tax intercept procedure. Guthmiller v. North Dakota Dep't of Human Servs., 421 N.W.2d 469, 1988 N.D. LEXIS 86 (N.D. 1988).

Contracts.

—Accrual of Cause.

Under this section an action for rescission based on failure of consideration accrues when the facts which constitute the failure of consideration have been, or in the exercise of reasonable diligence should have been, discovered by the party applying for relief. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 1990 N.D. LEXIS 176 (N.D. 1990).

Principles relating to whether a plaintiff has waived rights of recission also apply when determining when cause of action for recission has accrued. Action for recission accrues when plaintiff has notice of facts and circumstances which would put a person of ordinary prudence and intelligence on inquiry. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 1990 N.D. LEXIS 176 (N.D. 1990).

Plaintiff who bought his original lot in 1963, intending to use the lot for residential purposes, knew in 1972 that a plat had not been recorded for the property and that he could not obtain a building permit to use his lot for residential purposes because of the minimum lot-size requirement. Thus, plaintiff was aware of grounds for rescission as early as 1972. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 1990 N.D. LEXIS 176 (N.D. 1990).

The discovery rule applies to a breach of contract claim. Wells v. First Am. Bank West, 1999 ND 170, 598 N.W.2d 834, 1999 N.D. LEXIS 193 (N.D. 1999).

Former Superintendent of the Department of Instruction’s action for breach of contract was time barred as a matter of law given that the superintendent knew or reasonably should have known of his potential claim for additional retirement benefits when he received his first retirement check in February 1981. Snortland v. State, 2000 ND 162, 615 N.W.2d 574, 2000 N.D. LEXIS 172 (N.D. 2000).

Where a management agreement contained no fixed payment to be paid out over time and, instead, each payment was separate and distinct from the others and required a separate calculation, a new cause of action for breach of contract arose each year the plaintiff was not paid according to the terms of the management agreement. RDO Foods Co. v. United Brands Int'l, Inc., 194 F. Supp. 2d 962, 2002 U.S. Dist. LEXIS 4638 (D.N.D. 2002).

Working interest owner’s breach of contract, conversion, and related claims survived an oil and gas unit operator’s motion to dismiss for failure to comply with N.D.C.C. § 28-01-16 where the owner’s cause of action accrued when the operator allegedly imposed a penalty for nonpayment of expenses and improperly retained a portion of the owner’s revenues given that the breach was predicated on the owner’s failure to pay proceeds attributable to its interest, and the application of the discovery rule warranted a similar finding. OBO, Inc. v. Cont'l Res., Inc., 2005 U.S. Dist. LEXIS 31498 (D.N.D. Dec. 5, 2005).

City’s breach of contract claim against an airport fixed base operator (FBO), which was based on the FBO’s allegedly improper calculation of a fuel flowage fee, was time-barred in part under N.D.C.C. § 28-01-16(1), as the city had actual knowledge of the alleged breach in 1990 when the airport manager sent a letter to the FBO questioning fee charges. Exec. Air Taxi Corp. v. City of Bismarck, 518 F.3d 562, 2008 U.S. App. LEXIS 4545 (8th Cir. N.D. 2008).

—Alter Ego Liability.

Alter ego liability is premised upon a defendant’s course of actions over a span of time. It is not liability triggered by a single event such as the execution of a contract. Hence, in cause of action in which there was no contractual basis to disregard corporate entity, case was not subject to limitations period in this section. In re Haugen Constr. Services, Inc., 104 B.R. 1013, 1989 U.S. Dist. LEXIS 10951 (D.N.D. 1989).

—Waiver of Rescission.

A waiver of the right to rescind under N.D.C.C. § 9-09-04 can occur even when the action is commenced well within the running of the six-year statute of limitations. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 1990 N.D. LEXIS 176 (N.D. 1990).

An action for rescission brought under N.D.C.C. § 9-09-04 is subject to the six-year statute of limitations contained in N.D.C.C. § 28-01-16(1). However, a party who fails to promptly exercise the right of rescission upon discovery of the facts necessary to rescind waives that right. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 1990 N.D. LEXIS 176 (N.D. 1990).

Conversion of Bonds.

Where an insolvent bank had converted bonds left with it for safekeeping, a cause of action against the receiver did not accrue merely because of the filing of the claim with the receiver. Larson v. Baird, 60 N.D. 775, 236 N.W. 634, 1931 N.D. LEXIS 231 (N.D. 1931).

Counterclaims.

The six year statute of limitations contained in this section, rather than the two year statute of limitations contained in § 34-01-13, applied to a counterclaim for breach of contract, in which the defendant claimed that the plaintiff failed to pay him a management fee as contemplated by a management agreement, as the latter statute is limited to those actions concerning recovery of unpaid minimum wages, unpaid overtime compensation, liquidated damages, fees, damages, or penalties and as the North Dakota Supreme Court has a preference to apply the longer term when there is a question of which statute of limitations to apply. RDO Foods Co. v. United Brands Int'l, Inc., 194 F. Supp. 2d 962, 2002 U.S. Dist. LEXIS 4638 (D.N.D. 2002).

Counties.

Counties are within the terms of the statute of limitations and it runs not only for but against them. Rosedale Sch. Dist. v. Towner County, 56 N.D. 41, 216 N.W. 212, 1927 N.D. LEXIS 70 (N.D. 1927).

Death of Tort-feasor.

Because a creditor’s claim for tort damages can be filed in a probate proceeding under Title 30.1, the death of a potential defendant before the period of the statute of limitations has run on a tort claim does not make this section ineffective, and N.D.C.C. § 28-01-26 does not apply. Ness v. Stirling (In re Estate of Stirling), 537 N.W.2d 554, 1995 N.D. LEXIS 177 (N.D. 1995), overruled in part, Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, 2013 N.D. LEXIS 85 (N.D. 2013).

Upon the death of a person liable to suit on a tort claim for damages, the time to sue the decedent’s estate is measured from the date of the injury; that person’s death only causes a temporary suspension that extends the limitation period by three months under N.D.C.C. § 30.1-19-02. Ness v. Stirling (In re Estate of Stirling), 537 N.W.2d 554, 1995 N.D. LEXIS 177 (N.D. 1995), overruled in part, Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, 2013 N.D. LEXIS 85 (N.D. 2013).

Deceit.

Although the six-year statute of limitations in this section refers only to “fraud” rather than “deceit,” the determination of which statute of limitation is applicable in a given case rests on the actual nature of the action. Bjorgen v. Kinsey, 466 N.W.2d 553, 1991 N.D. LEXIS 22 (N.D. 1991).

Discovery.

The word “discovery” is not convertible with “knowledge”. If there is notice of facts, or if there is information that puts plaintiff on inquiry that would have led to knowledge, there is a “discovery”, and the plaintiff must be charged with notice of everything to which inquiry might have led. Roether v. National Union Fire Ins. Co., 51 N.D. 634, 200 N.W. 818, 1924 N.D. LEXIS 66 (N.D. 1924).

Notice of facts which would have led to the knowledge of fraud constitutes “discovery” within a statute limiting the cause of action for fraud. Barnes v. Cass County, 59 N.D. 135, 228 N.W. 839, 1929 N.D. LEXIS 240 (N.D. 1929).

“Discovery” means “notice of the facts” and, in an action against physicians for assault and malpractice and fraudulent concealment of the removal of certain organs from plaintiff’s body, where it was found that plaintiff, by diligence, might have discovered the removal in 1950, a cause of action for fraudulent concealment could not be commenced in 1957, more than six years after discovery. Linke v. Sorenson, 276 F.2d 151, 1960 U.S. App. LEXIS 4929 (8th Cir. N.D. 1960).

Where counties received less money than they were entitled to under law on distribution of motor vehicle registration fees, their cause of action against counties receiving excess accrued at time distribution was mistakenly made, since there was no concealment by defendants and since by exercising reasonable diligence plaintiffs could have discovered mistake. Richland County v. State, 180 N.W.2d 649, 1970 N.D. LEXIS 136 (N.D. 1970).

Cases involving latent-product defects, such as asbestos-containing materials, are governed by the “discovery rule” which modifies this section; the discovery rule tolls the statute of limitations until the time a plaintiff actually learned, or through the exercise of reasonable diligence should have learned, of his or her cause of action against the defendant. Drayton Public School Dist. v. W.R. Grace & Co., 728 F. Supp. 1410, 1989 U.S. Dist. LEXIS 15870 (D.N.D. 1989).

When a plaintiff is aware of his or her injury, but not the full extent of those injuries, a “discovery rule” should not be applied to toll the statute of limitations. Erickson v. Scotsman, Inc., 456 N.W.2d 535, 1990 N.D. LEXIS 121 (N.D. 1990).

Trial court did not err in holding that the discovery rule did not prevent the running of the statute of limitations under subsection (1), or that plaintiff was estopped from asserting the statute of limitations as a defense under N.D.C.C. § 31-11-06, where the trial court found that defendant should have discovered its counterclaim 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).

The discovery rule applies to a breach of contract claim. Wells v. First Am. Bank West, 1999 ND 170, 598 N.W.2d 834, 1999 N.D. LEXIS 193 (N.D. 1999).

Material issue of fact existed as to when a widow discovered, or reasonably should have discovered, the possible cause of a decedent’s cancer as, although the medical records indicated that exposure to asbestos could be the underlying etiological factor of his condition, there was nothing that indicated that this information was ever provided to the decedent or his widow. Thus, the widow’s survival action was improperly dismissed on summary judgment. Mertz v. 999 Quebec, Inc., 2010 ND 51, 780 N.W.2d 446, 2010 N.D. LEXIS 52 (N.D. 2010).

In a fraud case, a district court did not err in determining that October 4, 2006, was the discovery date triggering the six-year statute of limitations because that was the date that suspicion of theft was report to law enforcement; the limitations period expired when the summons and complaint were not served until October 6, 2013. Podrygula v. Bray, 2014 ND 226, 856 N.W.2d 791, 2014 N.D. LEXIS 227 (N.D. 2014).

In an action for breach of fiduciary duties and deceit, the district court did not err in concluding that plaintiff had been placed on notice of its claims no later than March 14, 2012, and that plaintiff’s assertion of the claims in July 2018 was outside the six year statute of limitations. Plaintiff’s request and review of the discussions leading up to a joint venture, and the receipt of a March 14, 2012 email provided sufficient notice of facts that would cause a reasonable person to exercise reasonable diligence to discover the potential claims. Bullinger Enters., LLLP v. Dahl, 2020 ND 63, 940 N.W.2d 630, 2020 N.D. LEXIS 60 (N.D. 2020).

Discrimination.

Where an employee suffered seizures and was relieved of all floor-stripping and floor-waxing responsibilities for the remainder of the employee's employment, and the stripping and waxing products were not used in the employee's presence, the employee's failure to accommodate claim failed because many of the employee's allegations were time-barred, and the employee suffered no adverse employment action in connection with the employee's exposure to those products. Dick v. Dickinson State Univ., 826 F.3d 1054, 2016 U.S. App. LEXIS 11419 (8th Cir. N.D. 2016).

Effect of Section 28-01-24.

There is no irreconcilable conflict between this section and N.D.C.C. § 28-01-24. Phoenix Assurance Co. v. Runck, 366 N.W.2d 788, 1985 N.D. LEXIS 299 (N.D. 1985).

Embezzled Funds.

Actions against former county treasurer and administrator of state bonding fund to recover amounts embezzled from county were unaffected by this section. Morton County v. Tavis, 66 N.W.2d 201, 1954 N.D. LEXIS 102 (N.D. 1954).

Equitable Estoppel.

The doctrine of equitable estoppel may operate to preclude the application of a statute of limitations as a defense by one whose actions mislead another, thereby inducing him to not file a claim within the statute of limitations. Thus, a delay may be excusable where, provided it is not unreasonably protracted, it is induced by defendant’s promises, suggestions, or assurances which, if carried into effect, would result in a solution or adjustment without litigation. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 1990 N.D. LEXIS 176 (N.D. 1990).

While the mere conduct of settlement negotiations or discussions by a defendant with a plaintiff does not alone provide a basis for estopping the defendant from pleading the statute of limitations, it is sufficient if the defendant’s conduct or promises are such as are naturally calculated to and do induce plaintiff into a belief that his claim would be adjusted if he did not sue. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 1990 N.D. LEXIS 176 (N.D. 1990).

Plaintiff may not invoke the doctrine of equitable estoppel against a defendant unless the plaintiff exercises due diligence in commencing the appropriate legal proceeding after the circumstances giving rise to estoppel have ceased to be operational, that is, after plaintiff has notice, actual or constructive, that he must resort to legal recourse and may no longer rely upon agreements, promises, representations to the contrary, or conduct or deceptive practices which may have lulled him into a sense of security. Schmidt v. Grand Forks Country Club, 460 N.W.2d 125, 1990 N.D. LEXIS 176 (N.D. 1990).

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 the trial court found that petitioner reasonably relied on repeated assurances that loans would be paid 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).

Although the lessee argued that the railroad’s statute of limitations defense should be precluded by the doctrine of equitable estoppel, the North Dakota Supreme Court found that the lessee did not properly raise the issue of the doctrine of equitable estoppel before the district court; therefore, he was precluded from raising the doctrine on appeal, and the statute of limitations time barred the lessee’s claims pertaining to underground fuel tanks located on the property. Rutherford v. BNSF Ry. Co., 2009 ND 88, 765 N.W.2d 705, 2009 N.D. LEXIS 94 (N.D. 2009).

Foreign Actions.

Where the cause of action is barred in a foreign state, such bar is available here. Rathbone v. Coe, 50 N.W. 620, 6 Dakota 91, 1888 Dakota LEXIS 70 (Dakota 1888).

Fraud.

Unlike the other actions listed in this section, a cause of action on the ground of fraud does not accrue until the aggrieved party discovers the facts constituting the fraud. There is no limitation upon the time for discovery of the cause of action. Phoenix Assurance Co. v. Runck, 366 N.W.2d 788, 1985 N.D. LEXIS 299 (N.D. 1985).

An action based on fraud is not barred by the passage of time until six years after discovery of the facts constituting the fraud. Phoenix Assurance Co. v. Runck, 366 N.W.2d 788, 1985 N.D. LEXIS 299 (N.D. 1985).

Given that plaintiff’s alleged verbal agreement on financial terms was not contained in the quitclaim deed, the ten-year statute of limitations contained in N.D.C.C. § 9-06-04 did not apply, and given that the alleged agreement was collateral to the deed conveyed in 1991, the six-year statute of limitations found in this section barred her contract action to collect the remaining payment allegedly outstanding. Jones v. Barnett, 2000 ND 207, 619 N.W.2d 490, 2000 N.D. LEXIS 243 (N.D. 2000).

Where plaintiff admitted she became aware of defendant’s alleged fraud in inducing her to quitclaim her interest in the subject property 3 to 4 months after the transfer in 1991 and only produced unsupported, conclusory allegations in her pleadings that she discovered the fraud later than 1991, trial court did not err in granting defendant summary judgment on the basis that plaintiff’s claim was time barred by this section. Jones v. Barnett, 2000 ND 207, 619 N.W.2d 490, 2000 N.D. LEXIS 243 (N.D. 2000).

District court properly granted summary judgment quieting title in a tract of land to a buyer, directing the trust to convey the land to him, and dismissing the trust's counterclaims because, assuming there was fraud by the buyer, the counterclaims were untimely, the trust's acceptance of sporadic payments for more than 30 years waived the clause in the contract for deed making time of the essence, and, although the buyer might have continued to make sporadic payments to the trust and to record additional mortgages and satisfactions on the property, the trust was deemed to have constructive notice of the record in the recorder's office. Holverson v. Lundberg, 2016 ND 103, 879 N.W.2d 718, 2016 N.D. LEXIS 103 (N.D. 2016).

In a quiet title case, a fraud claim was barred by the statute of limitations because there was notice in 2002 that at least a portion of the property at issue was not available for buy-back and that a potential claim existed. Klein v. Sletto, 2017 ND 26, 889 N.W.2d 918, 2017 N.D. LEXIS 14 (N.D. 2017).

Guardian’s Bond.

This section does not apply to a suit brought against the sureties upon a guardian’s bond. Groona v. Goldammer, 26 N.D. 122, 143 N.W. 394, 1913 N.D. LEXIS 45 (N.D. 1913), distinguished, Christenson v. Grandy, 46 N.D. 418, 180 N.W. 18, 1920 N.D. LEXIS 54 (N.D. 1920).

Implied Trust.

Statute of limitations does not begin to run in an action by a beneficiary against the trustee of a purchase money resulting trust until the trustee clearly repudiates his trust; mere failure of trustee to perform his duty is not sufficient to repudiate a resulting trust as there must be a distinct act of repudiation amounting to a denial of the trust existence. Zundel v. Zundel, 278 N.W.2d 123, 1979 N.D. LEXIS 177 (N.D. 1979).

Indemnity Contract.

An action for breach of an alleged indemnity contract is governed by the six-year statute of limitation in subdivision 1 of this section. Johnson v. Haugland, 303 N.W.2d 533, 1981 N.D. LEXIS 223 (N.D. 1981).

Insurance Contract.

Allegation in action against insurance company that “defendant’s conduct in refusing coverage was willful, intentional, and malicious” was sufficient to state a cause of action in tort, so that the six-year limitation of this section applied. Bender v. Time Ins. Co., 286 N.W.2d 489, 1979 N.D. LEXIS 340 (N.D. 1979).

A premium increase by the insurers, without more, was not notice to the policyholder of a potential claim for constructive fraud, actual fraud, consumer fraud, false advertising, or negligent misrepresentation, barring any possibility of recovery if suit was brought more than six years after the premium increase. Rose v. United Equitable Ins. Co., 2001 ND 154, 632 N.W.2d 429, 2001 N.D. LEXIS 160 (N.D. 2001).

Inverse Condemnation.

Inverse condemnation proceeding is governed by a six-year statute of limitations as it is an action in implied contract; cause of action arises when property is damaged. Maragos v. Minot, 191 N.W.2d 570, 1971 N.D. LEXIS 106 (N.D. 1971).

District court did not err in determining that the six-year statute of limitations for contract actions under N.D.C.C. § 28-01-16(1) applied to the landowners’ inverse condemnation claims; an inverse condemnation action based upon N.D. Const. art. I, § 16 was an action upon an implied contract for compensation and was governed by the six-year statute of limitations for an action upon contract. Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

Joint Debts.

A payment by one joint debtor will not interrupt the running of the statute of limitations as against another joint debtor. Grovenor v. Signor, 10 N.D. 503, 88 N.W. 278, 1901 N.D. LEXIS 66 (N.D. 1901); Roles v. Roles, 58 N.D. 310, 225 N.W. 809, 1929 N.D. LEXIS 211 (N.D. 1929).

Loss of Consortium.

A husband’s cause of action for loss of services, society and companionship of his wife, resulting from injuries to her through the wrongful acts or negligence of a surgeon, arose at the time he was deprived of such services, society and companionship. Milde v. Leigh, 75 N.D. 418, 28 N.W.2d 530, 1947 N.D. LEXIS 77 (N.D. 1947).

Maritime Tort.

Maritime tort action for damages could be brought in state court, but was subject to federal maritime law and the federal three-year statute of limitations period of 46 USCS app. § 763a. Voge v. Schnaidt, 2001 ND 174, 635 N.W.2d 161, 2001 N.D. LEXIS 194 (N.D. 2001).

Mechanic’s Lien.

An action to foreclose a mechanic’s lien accrues from the time the last item of labor or materials is furnished, and not from the time the statement of account was filed with the clerk of the district court. Sleeper v. Elliott, 36 N.D. 280, 162 N.W. 305, 1916 N.D. LEXIS 185 (N.D. 1916).

Multiple Causes in Pleading.

A complaint may plead both a cause of action for legal malpractice and a cause of action for fraud, each with a different statute of limitations. Bjorgen v. Kinsey, 466 N.W.2d 553, 1991 N.D. LEXIS 22 (N.D. 1991).

Mutual Account.

Six-year statute of limitations does not bar items in a mutual account between the parties that are more than six years old where the latest item in the account is less than six years old at the time the action on the account is commenced. Everson v. Partners Life Ins. Co., 268 N.W.2d 794, 1978 N.D. LEXIS 159 (N.D. 1978).

Six-year statute of limitations commences to run on a mutual account from the date of the last item proved on either side. State ex rel. State Hosp. v. Hintz, 281 N.W.2d 564, 1979 N.D. LEXIS 273 (N.D. 1979).

Section 28-01-37, and not this section, is applicable in determining when a cause of action accrues for recovery of the balance due upon a mutual, open and current account. Sheyenne Valley Lumber Co. v. Nokleberg, 319 N.W.2d 120, 1982 N.D. LEXIS 248 (N.D. 1982).

Trial court did not err in dismissing claim as barred by the six-year statute of limitations under subsection (1), because retrospective premium adjustment for workers compensation insurance was not a mutual, open account as defined by N.D.C.C. § 28-01-37, but was expected to be settled annually after calculations were completed. American Ins. Co. v. Midwest Motor Express, 554 N.W.2d 182, 1996 N.D. LEXIS 218 (N.D. 1996).

Negligence.

The general period of limitation for an action for negligent conduct is six years. Lang v. Barrios, 472 N.W.2d 464, 1991 N.D. LEXIS 124 (N.D. 1991), dismissed, 1993 N.D. LEXIS 206 (N.D. Nov. 10, 1993).

Insurance company, limited partnership, and rental company timely served their summons and complaint, alleging claims for negligence and strict liability, upon the elevator company whose elevator allegedly damaged their apartment building. Their summons and complaint were delivered to the sheriff in the relevant county in Wisconsin where the elevator company was located within the six-year statute of limitations of N.D.C.C. § 28-01-16 since it arrived at the sheriff’s office six years to the day the damage occurred with the intent that it be served, as the first day was excluded and the last day was included according to the rule for computation of time, N.D.R.Civ.P. 6(a), and there was no requirement that the summons and complaint itself be served within that statutory period. Am. Family Ins. & Prairie W. Apts. I, L.P. v. Waupaca Elevator Co., 2012 ND 13, 809 N.W.2d 337, 2012 N.D. LEXIS 13 (N.D. 2012).

No-Fault Insurance Actions.

Summary judgment was properly granted for the insurer in the insured’s action to recover no-fault insurance benefits because the specific language in the four-year statute of limitations, N.D.C.C. § 26.1-41-19, applied to no-fault insurance actions rather than the general six-year statute of limitations for actions upon a contract under N.D.C.C. § 28-01-16. The insured was barred because she failed to commence her action within four years after the insurer’s last payment of no-fault benefits. Johnson v. Nodak Mut. Ins. Co., 2005 ND 112, 699 N.W.2d 45, 2005 N.D. LEXIS 128 (N.D. 2005).

Non-Professional Negligence.

The six-year statute of limitations for nonprofessional negligence applies to all tradespersons alike. Jilek v. Berger Elec., 441 N.W.2d 660, 1989 N.D. LEXIS 108 (N.D. 1989).

Because a financial planning business is not an occupation that requires the specialized knowledge, long and intensive preparation in skills, and scholarly principles underlying such skills typically associated only with professions, the defendant’s business was one to which the six-year statute of limitations applied, rather than the two-year professional malpractice statute. Kuntz v. Muehler, 1999 ND 215, 603 N.W.2d 43, 1999 N.D. LEXIS 247 (N.D. 1999).

Notes.

—Acceleration.

Period of limitations does not automatically begin for all of the debt when a debtor’s default on installments gives the creditor the option to accelerate the entire debt; only when the acceleration clause is automatic, or when the creditor universally exercises an option to accelerate does the entire debt become immediately due. American State Bank & Trust Co. v. Sorenson, 539 N.W.2d 59, 1995 N.D. LEXIS 188 (N.D. 1995).

—Generally.

Action on a demand note must be commenced within six years from the date of the note. Baird v. Utecht, 67 N.D. 491, 274 N.W. 513, 1937 N.D. LEXIS 104 (N.D. 1937); Hoffman v. Ness, 71 N.D. 283, 300 N.W. 428, 1941 N.D. LEXIS 168 (N.D. 1941).

—Joint and Several.

The running of limitations in favor of one of the makers of a joint and several note is not suspended by a payment by the other. Langlie v. Loge, 59 N.D. 399, 230 N.W. 211, 1930 N.D. LEXIS 155 (N.D. 1930).

Under a note providing that the time of payment may be extended or the note renewed without affecting the liability of joint and several makers thereon, an extension of time of payment without the consent of any of the makers, or the renewal of the note by a third party upon the death of one maker, and without the consent of the surviving maker, does not suspend the running of the statute of limitations against the surviving maker. Baird v. Herr, 64 N.D. 572, 254 N.W. 555, 1934 N.D. LEXIS 235 (N.D. 1934).

—Renewal.

An execution of a renewal note constituted a written acknowledgment of a prior debt, thereby starting the statute of limitations to run from the date of the renewal note. Regan Farmers Union Coop. v. Hinkel, 437 N.W.2d 845, 1989 N.D. LEXIS 52 (N.D. 1989).

Where a debtor signs a note indicating he owes a certain amount on a past debt, the debtor waives any statute-of-limitations defense he may have had prior to signing the note, and the statute of limitations begins to run anew from the date he signs the renewal note. Regan Farmers Union Coop. v. Hinkel, 437 N.W.2d 845, 1989 N.D. LEXIS 52 (N.D. 1989).

Renewal note executed by debtor sufficiently recognized the debt to avoid the operation of the statute of limitations. Pear v. Grand Forks Motel Assocs., 553 N.W.2d 774, 1996 N.D. LEXIS 222 (N.D. 1996).

—Security for Mortgage.

A cause of action based upon a note secured by a real estate mortgage must be commenced within six years after it becomes due. Satterlund v. Beal, 12 N.D. 122, 95 N.W. 518, 1903 N.D. LEXIS 19 (N.D. 1903); Scott v. District Court, 15 N.D. 259, 107 N.W. 61, 1906 N.D. LEXIS 31 (N.D. 1906); Lincoln Nat'l Life Ins. Co. v. Kelly, 73 N.D. 622, 17 N.W.2d 906, 1945 N.D. LEXIS 77 (N.D. 1945).

Where a note is secured by a mortgage upon real estate, payment on the debt extends the lien of mortgage. Hansen v. Branner, 52 N.D. 892, 204 N.W. 856, 1925 N.D. LEXIS 156 (N.D. 1925).

Notice of Existence of Claim.

Where plaintiff not only knew that it had suffered an injury but, after hearing an expert’s report, it also knew, or reasonably should have known, that the possible cause was “bad soil,” and that defendant may have been negligent in failing to warn it about the poor soil conditions, plaintiff was placed on notice that a potential claim existed. Bottineau Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064, 1992 U.S. App. LEXIS 9578 (8th Cir. N.D. 1992).

Old-Age Assistance.

The recovery of old-age assistance from the estate of the recipient, being based upon a liability created by statute, comes squarely within the limitations prescribed by subsection 2 of this section. Weber v. Weber, 77 N.D. 142, 42 N.W.2d 67, 1950 N.D. LEXIS 113 (N.D. 1950).

Partnership.

The running of the statute as to all partners starts anew when a liquidating partner makes payment upon partnership notes after a firm’s dissolution. First State Bank v. Steinhaus, 61 N.D. 336, 237 N.W. 852, 1931 N.D. LEXIS 281 (N.D. 1931).

Product Liability.

Product liability tort actions, whether based upon negligence or strict liability theory, must be brought within the six-year statute of limitations of N.D.C.C. § 28-01-16(5). Erickson v. Scotsman, Inc., 456 N.W.2d 535, 1990 N.D. LEXIS 121 (N.D. 1990).

Promise to Lend Money.

Debtor’s renewals of or partial payments on debt owed to creditor did not toll the statute of limitations on any promise by the creditor to lend the debtor money. Pioneer Credit Co. v. Latendresse, 286 N.W.2d 445, 1979 N.D. LEXIS 345 (N.D. 1979).

Purpose of Statute.

The purpose of a statute of limitation is to prevent the enforcement of stale demands when through lapse of time evidence concerning their true status has become lost or difficult to procure. State v. Halverson, 69 N.D. 225, 285 N.W. 292, 1939 N.D. LEXIS 145 (N.D. 1939).

Question for Court.

Where there is no dispute in the evidence as to the facts, the question as to whether the statute of limitations has run is for the court and not for the jury. Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455, 1945 N.D. LEXIS 86 (N.D. 1945).

Recovery on Account.

The balance of an account was not properly received as evidence, where more than six years had elapsed since the last item thereof and the commencement of an action thereon. Burke v. Welo, 49 N.D. 119, 190 N.W. 269, 1922 N.D. LEXIS 20 (N.D. 1922).

Reformation of Deed.

An action for reformation of a deed accrues, not at the time of execution of the instrument in question, but at the time the facts which constitute the mistake and form the basis for reformation have been, or in the exercise of reasonable diligence should have been, discovered by the party applying for relief; therefore, whether or not this section and N.D.C.C. § 28-01-15 bar reformation action depends upon what time the facts constituting the mistake and forming the basis for reformation were discovered or in the exercise of reasonable diligence should have been discovered. Wehner v. Schroeder, 335 N.W.2d 563, 1983 N.D. LEXIS 340 (N.D. 1983).

Royalties.

In a case in which plaintiff alleged that defendant petroleum company wrongfully deducted certain costs from gas royalties paid to plaintiff under a lease between the parties, the district court properly applied the ten-year statute of limitations in N.D.C.C. § 28-01-15(2) to plaintiff's breach of contract action for the underpayment of royalties. The six-year statute of limitations in N.D.C.C. § 28-01-16 did not apply. Kittleson v. Grynberg Petro. Co., 2016 ND 44, 876 N.W.2d 443, 2016 N.D. LEXIS 43 (N.D. 2016).

School Districts.

School districts are within the terms of the statute of limitations and it runs not only for but against them. Rosedale Sch. Dist. v. Towner County, 56 N.D. 41, 216 N.W. 212, 1927 N.D. LEXIS 70 (N.D. 1927).

The argument that in equity and good conscience a school district should pay for steel procured for use in a gymnasium building, without securing bids, cannot avail in an action commenced after the expiration of the statutory period of limitation to recover the value of the steel. St. Paul Foundry Co. v. Burnstad Sch. Dist., 70 N.D. 403, 295 N.W. 659, 1940 N.D. LEXIS 186 (N.D. 1940).

Simple Open Account.

The six-year statute of limitations commences to run on a simple open account from the date of each item, not from the date of the last transaction. State ex rel. State Hosp. v. Hintz, 281 N.W.2d 564, 1979 N.D. LEXIS 273 (N.D. 1979).

Surety Bond.

The appointment of a receiver for a closed bank did not interrupt the running of the statute of limitations on depository bond where it did not interfere with township’s right to assert its remedy against the surety and to prosecute that remedy to judgment. Lakeville Township v. Northwestern Trust Co., 74 N.D. 396, 22 N.W.2d 591, 1946 N.D. LEXIS 71 (N.D. 1946).

Tax Lien.

Since a tax lien on real estate is declared to be perpetual, no lapse of time will bar a remedy to enforce such lien against the land. Wells County v. McHenry, 7 N.D. 246, 74 N.W. 241, 1898 N.D. LEXIS 57 (N.D. 1898).

Tax Refund.

The reasoning in Maher v. Ramsey County, 75 N.D. 760, 32 N.W.2d 679 (1948), in which it was held that the six-year limitation period did not apply to an action for a refund of estate taxes, was faulty. If carried to its logical extreme, it would effectively render this chapter a nullity. Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 1987 N.D. LEXIS 354 (N.D. 1987).

Tax Sale.

—Invalidity.

If a tax sale is adjudged invalid, the board of county commissioners must act before the money paid for a void certificate can be returned, and a cause of action does not accrue until a demand is made therefor, where no question of unreasonable delay is involved and the statute of limitations runs from the date of the rejection of the claimant’s demands. Sherwood v. Barnes County, 22 N.D. 310, 134 N.W. 38, 1911 N.D. LEXIS 67 (N.D. 1911).

Termination of lease.

Court did not err in holding that the leases terminated on December 31, 2011 and in dismissing the lessee's counterclaims because there was no automatic renewal, the lessors' letter sent to the lessee was effective to exercise the lessors' right to terminate the leases for any cause at the end of the one-year term, the lessee failed to raise a genuine issue of material fact about corporate ratification, and the lessee's counterclaim was time-barred as a matter of law. Funke v. Aggregate Constr., Inc., 2015 ND 123, 863 N.W.2d 855, 2015 N.D. LEXIS 121 (N.D. 2015).

Tolling.

If the statute of limitations is tolled under North Dakota contract law, it is also tolled under the UCC as adopted by North Dakota. Regan Farmers Union Coop. v. Hinkel, 437 N.W.2d 845, 1989 N.D. LEXIS 52 (N.D. 1989).

Section 30.1-12-04 does not prohibit enforcement of a tort claim and toll the running of the statute of limitations, but simply annexes the condition that a personal representative of decedent tort-feasor be appointed. Ness v. Stirling (In re Estate of Stirling), 537 N.W.2d 554, 1995 N.D. LEXIS 177 (N.D. 1995), overruled in part, Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, 2013 N.D. LEXIS 85 (N.D. 2013).

Tortious Interference With Business.

Because defamation and tortious interference with business are independent and distinct torts capable of sustaining separate and concurrent actions, with respect to plaintiff’s tortious interference claims arising out of defamatory e-mails by defendant requesting, among other things, that persons discontinue their donations to the plaintiff nonprofit, all of the alleged acts dating back six years from the complaint fell within the applicable six-year statute of limitations, N.D.C.C. § 28-01-16. Atkinson v. McLaughlin, 462 F. Supp. 2d 1038, 2006 U.S. Dist. LEXIS 86405 (D.N.D. 2006).

Townships.

An owner may bring an action against a township for compensation for land taken contrary to the statute any time before the town’s acquisition of title. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

A township is amendable to statutes of limitation. Lakeville Township v. Northwestern Trust Co., 74 N.D. 396, 22 N.W.2d 591, 1946 N.D. LEXIS 71 (N.D. 1946).

Tradespersons.

The malpractice statute of limitations applies to one practicing a profession, not a trade. Jilek v. Berger Elec., 441 N.W.2d 660, 1989 N.D. LEXIS 108 (N.D. 1989).

Trespassing Animals.

An action to recover damages, caused by trespassing animals, may be maintained at any time within six years after the cause of action accrued. Schneider v. Marquart, 45 N.D. 390, 178 N.W. 195, 1920 N.D. LEXIS 141 (N.D. 1920).

Untimely Service.

Because service was not complete under N.D.R.Civ.P. 4(d)(2)(A)(v) until defendant signed for and received the summons and complaint two days after the expiration of the six-year statute of limitations, plaintiff’s negligence action was untimely under N.D.C.C. § 28-01-16. Langowski v. Altendorf, 2012 ND 34, 812 N.W.2d 427, 2012 N.D. LEXIS 30 (N.D. 2012).

District court properly granted a motion to dismiss based on lack of jurisdiction where although plaintiff had mailed a summons to the sheriff’s department within the statute of limitations, the documents were not in the sheriff department’s possession until after the statute of limitations expired, and mailing to the sheriff’s department fell short of the N.D.C.C. § 28-01-38 requirement for an attempt. Hughes v. Olheiser Masonry, Inc., 2019 ND 273, 935 N.W.2d 530, 2019 N.D. LEXIS 273 (N.D. 2019).

Vesting of Title.

Action instituted by landlord in April, 1936, to have title to premises vested in himself, was commenced within the statutory period, where the tenant obtained his tax deed from the county on June 16, 1930, and plaintiff did not discover the facts in connection therewith until in 1933. Wood v. Homelvig, 68 N.D. 735, 283 N.W. 278 (1938), distinguished, 69 N.W.2d 800 (N.D. 1955) and 204 N.W.2d 187 (N.D. 1973).

Workmen’s Compensation.

An action to enforce an award of the workmen’s compensation bureau must be commenced within six years. State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

Collateral References.

Action to recover money or property lost and paid through gambling as affected by statute of limitations, 22 A.L.R.2d 1390.

When statute of limitations governs action to reform instrument, 36 A.L.R.2d 687.

Limitations applicable to nuisance by operation of sewage disposal plant, 40 A.L.R.2d 1177.

When statute of limitations begins to run against action on bond of personal representative, 44 A.L.R.2d 807.

When statute of limitations starts to run against enforcement of resulting trust, 45 A.L.R.2d 382.

When statute of limitations governs an action for alienation of affections or criminal conversation, 46 A.L.R.2d 1086.

What statute of limitations governs action or claim for affirmative relief against usurious obligation or to recover usurious payment, 48 A.L.R.2d 401.

Limitation of action as applied to account stated, 51 A.L.R.2d 331.

When statute of limitations begins to run on contractual obligation to pay for minor’s support, 52 A.L.R.2d 1125.

When statute of limitations starts to run against bailor’s action for recovery, or for damages for detention of property deposited for indefinite time, 57 A.L.R.2d 1044.

When statute of limitations begins to run against action by attorney, not employed on contingent fee basis, for compensation for services, 60 A.L.R.2d 1008.

Statute of limitations applicable to action for unauthorized geophysical or seismograph exploration or survey, 67 A.L.R.2d 444, 457.

Physician, surgeon, or dentist, statute of limitations applicable to action on implied contract against, for injuries due to improper treatment, 80 A.L.R.2d 320.

When statute of limitations starts to run against action to set aside fraudulent conveyance or transfer in fraud of creditors, 100 A.L.R.2d 1094.

When statute of limitations commences to run on automobile no-fault insurance personal injury claim, 36 A.L.R.4th 357.

Validity, construction, and application, in nonstatutory personal injury actions, of state statute providing for borrowing of statute of limitations of another state, 41 A.L.R.4th 1025.

Res ipsa loquitur, applicability in case of multiple, nonmedical defendants — modern status, 59 A.L.R.4th 201.

Medical malpractice: statute of limitations in wrongful death action based on medical malpractice, 70 A.L.R.4th 535.

Broker’s liability for fraud or misrepresentation concerning development or nondevelopment of nearby property, 71 A.L.R.4th 511.

Tort liability for nonmedical radiological harm, 73 A.L.R.4th 582.

Application of statute of limitations in private tort actions based on injury to persons or property caused by underground flow of contaminants, 11 A.L.R.5th 438.

Posttraumatic syndrome as tolling running of statute of limitations, 12 A.L.R.5th 546.

What statute of limitations applies to state law action by public sector employee for breach of union’s duty of fair representation, 12 A.L.R.5th 950.

Causes of action governed by limitations period in UCC § 2-725, 49 A.L.R.5th 1.

Liability of manufacturer or seller for injury or death allegedly caused by use of contraceptive, 54 A.L.R.5th 1.

When statute of limitations commences to run against promise to pay debt “when able,” “when convenient,” or the like, 67 A.L.R.5th 479.

Insurer’s waiver of defense of statute of limitations, 104 A.L.R.5th 331.

Law Reviews.

Summary of North Dakota Supreme Court Decisions on Civil Procedure — Limitations of Actions, 71 N.D. L. Rev. 841 (1995).

Applicability.

This statute of limitation is applicable only to actions premised upon state law and not those arising under 42 USCS § 1983. Kessel v. Schaff, 697 F. Supp. 1102, 1987 U.S. Dist. LEXIS 14224 (D.N.D. 1987).

District court did not err in dismissing as untimely plaintiff’s claims relating to her son’s death. After speaking with an independent toxicologist on December 27, 2013, plaintiff was aware of facts sufficient to put her on notice of a potential claim, and she failed to sue defendants within three years of that date. Ayling v. Sens, 2019 ND 114, 926 N.W.2d 147, 2019 N.D. LEXIS 117 (N.D. 2019).

Assault and False-Imprisonment Actions.

The two-year statute of limitation, under N.D.C.C. § 28-01-18(1), which specifically applies to assault and false-imprisonment actions, falls within the three-year parameter for bringing actions against political subdivisions or sheriffs and constables under N.D.C.C. § 32-12.1-10 and subsection 1 of this section, respectively. O'Fallon v. Pollard, 427 N.W.2d 809, 1988 N.D. LEXIS 188 (N.D. 1988).

Civil Action Against Sheriff.

The limitation period for an action against a sheriff for civil liability based on acts performed in an official capacity, including execution sale, is three years. Lang v. Barrios, 472 N.W.2d 464, 1991 N.D. LEXIS 124 (N.D. 1991), dismissed, 1993 N.D. LEXIS 206 (N.D. Nov. 10, 1993).

This section requires that an action against a sheriff based on an act done in his official capacity must be commenced within three years after the claim accrues. Lang v. Binstock, 478 N.W.2d 13, 1991 N.D. LEXIS 220 (N.D. 1991).

An action against a sheriff and a county for conversion, based on the seizure and removal of plaintiff’s belongings in execution of a judgment, accrued when the sheriff seized plaintiff’s possessions and placed them with a moving and storage company. Lang v. Burleigh County Sheriff's Dep't, 496 N.W.2d 24, 1993 N.D. LEXIS 27 (N.D. 1993).

Penalties.

An action against a municipal officer for penalty for exceeding contract authority must be commenced within three years. St. Anthony & Dakota Elevator Co. v. Martineau, 30 N.D. 425, 153 N.W. 416, 1915 N.D. LEXIS 151 (N.D. 1915).

Collateral References.

What period of limitation governs in an action against a public officer and the surety on his official bond, 18 A.L.R.2d 1176.

Statutory liability within provision of statute of limitations prescribing limitation period for such liability, liability on bond required by statute as, 32 A.L.R.2d 1240.

When statute of limitations begins to run against action for false imprisonment or false arrest, 49 A.L.R.2d 922.

Insurer’s waiver of defense of statute of limitations, 104 A.L.R.5th 331.

Constitutionality.

The six-year statute of repose set forth in this section relating to medical malpractice actions does not violate equal protection because there is a close correspondence between the statutory classification and the goals of the legislature in adopting the statute. Hoffner v. Johnson, 2003 ND 79, 660 N.W.2d 909, 2003 N.D. LEXIS 91 (N.D. 2003).

Accrual of Cause of Action.

A cause of action for legal malpractice does not accrue, and the statute of limitations does not commence to run, until the client has incurred some damage. Wall v. Lewis, 366 N.W.2d 471, 1985 N.D. LEXIS 301 (N.D. 1985); Binstock v. Tschider, 374 N.W.2d 81, 1985 N.D. LEXIS 397 (N.D. 1985).

Where attorney’s act of negligence allegedly caused client to incur additional tax liability, actual damage was incurred no later than when the IRS imposed a tax assessment, thereby creating an enforceable obligation against the client. Wall v. Lewis, 366 N.W.2d 471, 1985 N.D. LEXIS 301 (N.D. 1985).

The statute commences to run when the plaintiff knows, or with reasonable diligence should know, of (1) the injury, (2) its cause, and (3) the defendant’s possible negligence. Wall v. Lewis, 393 N.W.2d 758, 1986 N.D. LEXIS 415 (N.D. 1986); Herzog v. Yuill, 399 N.W.2d 287, 1987 N.D. LEXIS 249 (N.D. 1987).

Defendants claimed that a patient’s malpractice claim was time-barred, but the court determined that there were critical issues of material fact as to when the cause of action accrued; defendants claimed that the patient knew or should have discovered the potential claim on the date that the patient sought a second opinion, while the patient disagreed, arguing that under the discovery rule and because of a delayed healing of the fracture, knowledge of defendants’ malpractice did not become obvious until after the patient had completely recovered from corrective surgery. Schaaf v. Dahl, 327 F. Supp. 2d 1087, 2004 U.S. Dist. LEXIS 14882 (D.N.D. 2004).

Appellate Review.

In an action alleging defamation, false imprisonment, and other tort and civil rights claims arising from a divorce and felonious arrest incident, an appellate court had jurisdiction to hear an appeal from a dismissal of the case without prejudice because there was a consistent subsequent judgment that was intended to be final, some of the actions were time barred, and only hearing those actions on appeal would have split the case. Sanderson v. Walsh County, 2006 ND 83, 712 N.W.2d 842, 2006 N.D. LEXIS 88 (N.D. 2006).

Continuous Torts.

Where farmer who brought action for interference with business alleged that defendants had committed arson in 1957 or 1958, an act of champerty in 1952, malicious prosecution in 1959 and assault upon his person in 1960, no continuing tort was established; rather each alleged wrongful act constituted separate cause of action and statute of limitations ran from time of commission of each act. Fox v. Higgins, 149 N.W.2d 369, 1967 N.D. LEXIS 152 (N.D.), cert. denied, 389 U.S. 873, 88 S. Ct. 160, 19 L. Ed. 2d 153, 1967 U.S. LEXIS 930 (U.S. 1967).

Defamation.

Because defamation claims arising from statements made on a website were actionable in 1998, the single publication rule applied to the website, and there were no material modifications after 1998, the defamation claims filed in 2003 were barred by the two-year statute of limitations under N.D.C.C. § 28-01-18(1). Even though defendants were out of the country, the tolling provisions of N.D.C.C. § 28-01-32 did not apply because defendants were within the court’s long-arm jurisdiction. Atkinson v. McLaughlin, 462 F. Supp. 2d 1038, 2006 U.S. Dist. LEXIS 86405 (D.N.D. 2006).

Discovery of Injury.

—In General.

The purpose of the discovery rule is to prevent the injustice of barring a claim before the plaintiff could reasonably be aware of its existence. Thus, the focus is upon whether the plaintiff has been apprised of facts which would place a reasonable person on notice that a potential claim exists. It is not necessary that the plaintiff be subjectively convinced that he has been injured and that the injury was caused by the defendant’s negligence. Wall v. Lewis, 393 N.W.2d 758, 1986 N.D. LEXIS 415 (N.D. 1986).

Where plaintiffs were advised by an attorney that they had a potential malpractice claim, plaintiffs as a matter of law “discovered” the injury, its cause, and the defendant’s possible negligence as of that date. Wall v. Lewis, 393 N.W.2d 758, 1986 N.D. LEXIS 415 (N.D. 1986).

Because defamation claims arising from statements made to an Attorney General’s office were not reasonably discoverable until plaintiff made a specific request to the office, the discovery rule applied to the statements. As a result, the claims were not barred by the two-year statute of limitations of N.D.C.C. § 28-01-18. Atkinson v. McLaughlin, 462 F. Supp. 2d 1038, 2006 U.S. Dist. LEXIS 86405 (D.N.D. 2006).

District court properly granted the dentist summary judgment on statute of limitations grounds, N.D.C.C. § 28-01-18(1), because the patient did not file his sexual abuse claim within two years of discovering his injury. Dunford v. Tryhus, 2009 ND 212, 776 N.W.2d 539, 2009 N.D. LEXIS 210 (N.D. 2009).

—Repressed Memory.

A sexual-abuse victim with a repressed memory of the abuse generally has two years from the time of “discovery” to begin an action for sexual assault and battery. Peterson v. Huso, 552 N.W.2d 83, 1996 N.D. LEXIS 195 (N.D. 1996).

Diversity Action.

Malpractice action brought in federal district court of Minnesota was barred by statute of limitations since Minnesota follows the general rule that procedural law of the forum state applies, and that statutes of limitation are procedural. Cuthbertson v. Uhley, 509 F.2d 225, 1975 U.S. App. LEXIS 16277 (8th Cir. Minn. 1975).

Equitable Tolling.

—Certification Denied.

Supreme court refused to answer certified question from district court as to whether statute of limitations should be equitably tolled, because, depending on the answers to the certified questions, issues of liability and damages may remain for disposition in the trial court. Braaten v. Deere & Co., 547 N.W.2d 751, 1996 N.D. LEXIS 126 (N.D. 1996).

—Wrongful Death.

Even though the state’s two-year statute of limitations for wrongful death actions may be tolled under the doctrine of equitable tolling, tolling was not warranted where the personal representative of an estate, after becoming aware of lack of diversity jurisdiction, failed to file an immediate state claim to protect the lawsuit. Braaten for Heirs of Boomgaarden v. Deere & Co., 1997 ND 202, 569 N.W.2d 563, 1997 N.D. LEXIS 247 (N.D. 1997).

Extension of Limitation Period.

—In General.

Where trial court found that the severe emotional trauma experienced by plaintiff resulted in her being unable to fully understand or discover her cause of action for assault and battery based on sexual abuse she experienced as a minor during the applicable statutory limitations period, court did not err in applying discovery rule to extend period of limitations. Osland v. Osland, 442 N.W.2d 907, 1989 N.D. LEXIS 153 (N.D. 1989).

In no case, except where there is fraudulent concealment, will “the limitation of an action be extended beyond six years of the act or omission of alleged malpractice by a nondiscovery thereof.” Wheeler v. Schmid Lab., 451 N.W.2d 133, 1990 N.D. LEXIS 30 (N.D. 1990).

—Substitution.

Personal representative should have been allowed a reasonable time for the substitution of decedent child’s parents as plaintiffs, or their ratification of representative’s action, after determination that representative did not have standing to bring wrongful death action because she failed to make proper demand on persons with higher statutory priority. Goodleft v. Gullickson, 556 N.W.2d 303, 1996 N.D. LEXIS 257 (N.D. 1996).

False Imprisonment.

False imprisonment is considered a continuing tort which commences at the time of the false arrest and continues until the unlawful detention ceases. O'Fallon v. Pollard, 427 N.W.2d 809, 1988 N.D. LEXIS 188 (N.D. 1988).

The time specified in the statute of limitation for a false-imprisonment action commences to run from the termination of the plaintiff’s incarceration, irrespective of whether or not related criminal proceedings have been concluded. O'Fallon v. Pollard, 427 N.W.2d 809, 1988 N.D. LEXIS 188 (N.D. 1988).

Where the plaintiff was released on bond shortly after his arrest, the two-year period began to run at that time, and because his release from incarceration occurred more than two years before he filed his lawsuit against a city, city police and sheriff, his complaint was barred by the statute of limitation. O'Fallon v. Pollard, 427 N.W.2d 809, 1988 N.D. LEXIS 188 (N.D. 1988).

Federal Action.

This statute of limitation, which applies to actions involving assault, batteries and the like, more specifically encompasses the sorts of actions which concerned Congress in enacting 42 USCS § 1983; therefore, this section applied to plaintiff’s 1983 action. Kessel v. Schaff, 697 F. Supp. 1102, 1987 U.S. Dist. LEXIS 14224 (D.N.D. 1987).

Fraudulent Concealment of Cause of Action.

In an action against physicians for alleged assault and malpractice resulting from the removal of certain organs from plaintiff’s body, where plaintiff did not discover the removal until a subsequent operation six years after the removal, it was at that time that the one-year limitation was set in motion and plaintiff’s failure to initiate action within one year from the date of the second operation barred her from recovery. Linke v. Sorenson, 276 F.2d 151, 1960 U.S. App. LEXIS 4929 (8th Cir. N.D. 1960).

Legal Malpractice.

—In General.

The two-year statute of limitation provided for malpractice was applicable to a legal malpractice action. Johnson v. Haugland, 303 N.W.2d 533, 1981 N.D. LEXIS 223 (N.D. 1981); Wall v. Lewis, 366 N.W.2d 471, 1985 N.D. LEXIS 301 (N.D. 1985); Binstock v. Tschider, 374 N.W.2d 81, 1985 N.D. LEXIS 397 (N.D. 1985); Herzog v. Yuill, 399 N.W.2d 287, 1987 N.D. LEXIS 249 (N.D. 1987).

The statute of limitations for a legal malpractice action is not tolled while the appellate process on an underlying action is completed. Jacobsen v. Haugen, 529 N.W.2d 882, 1995 N.D. LEXIS 72 (N.D. 1995).

Summary judgment for defendant attorneys in legal malpractice case was proper where plaintiff client filed his case outside the two-year statute of limitations for legal malpractice actions. Reasonable persons could not disagree that the client knew, or with reasonable diligence should have known, of any alleged malpractice by the attorneys and any potential injury by the time the judgment was entered against him in the divorce action in June 2001; the client commenced the action in October 2003, and it was therefore commenced outside the two-year statute of limitations for legal malpractice actions. Riemers v. Omdahl, 2004 ND 188, 687 N.W.2d 445, 2004 N.D. LEXIS 320 (N.D. 2004).

Client’s allegations about the attorney’s representation were to reduce or to avoid the attorney’s attempt to recover attorney fees for his representation of her; thus, her claim was a defensive recoupment and was not barred by the statute of limitations. Overboe v. Brodshaug, 2008 ND 112, 751 N.W.2d 177, 2008 N.D. LEXIS 108 (N.D. 2008).

District court did not err in granting summary judgment in favor of an attorney after finding the statute of limitations had expired prior to the former client’s initiation of a malpractice claim where the action accrued on the date of the order finding the client breached his fiduciary duty to his sisters and reserving the determination of damages arising from the breach. Following the issuance of that order, reasonable minds could have drawn but one conclusion from the evidence: the client was on notice a potential claim against the attorney existed. Broten v. Carter, 2019 ND 268, 935 N.W.2d 654, 2019 N.D. LEXIS 280 (N.D. 2019).

—Continuous Representation Rule.

The continuous representation rule is applicable to legal malpractice actions in this jurisdiction. Bjorgen v. Kinsey, 466 N.W.2d 553, 1991 N.D. LEXIS 22 (N.D. 1991).

North Dakota has adopted a “continuous representation rule” in legal malpractice actions, which tolls the statute of limitations or defers accrual of the cause of action while the attorney continues to represent the client and the representation relates to the same transaction or subject matter as the allegedly negligent acts. Jacobsen v. Haugen, 529 N.W.2d 882, 1995 N.D. LEXIS 72 (N.D. 1995).

Loss of Consortium.

A cause of action by a husband for loss of services, society, and companionship of his wife, resulting from injuries to her through the wrongful acts or negligence of a surgeon, arose at the time he was deprived of such services, society, and companionship. Milde v. Leigh, 75 N.D. 418, 28 N.W.2d 530, 1947 N.D. LEXIS 77 (N.D. 1947).

The two-year statute of limitations for malpractice actions applies to loss of consortium claims arising out of alleged professional negligence. Sime v. Tvenge Assoc. Architects & Planners, P.C., 488 N.W.2d 606, 1992 N.D. LEXIS 142 (N.D. 1992).

Malpractice.

—In General.

Limitation period commences to run against malpractice action from time act of malpractice with resulting injury is, or by reasonable diligence could be, discovered. Iverson v. Lancaster, 158 N.W.2d 507, 1968 N.D. LEXIS 103 (N.D. 1968).

The rule concerning the time at which a cause of action for malpractice accrues to start the running of the statute of limitations is that the limitation period commences to run against a malpractice action from the time the act of malpractice with resulting injury is, or by reasonable diligence could be, discovered. Johnson v. Haugland, 303 N.W.2d 533, 1981 N.D. LEXIS 223 (N.D. 1981).

Where plaintiff and bank had been named as defendants in an action for wrongful repossession of a mobile home, and plaintiff alleged that bank told him that it would take care of the lawsuit, and that upon reliance of bank’s promises that he would not be responsible for any liability in the matter he consented to have the bank’s law firm represent both he and the bank in the matter, plaintiff’s action against the bank after liability was imposed upon him in the repossession matter was an action for breach of an indemnity contract and was not governed by this section’s two-year statute of limitation for malpractice; and, fact that plaintiff brought a malpractice action against the bank’s law firm did not make the two-year limitation period applicable to the action against the bank. Johnson v. Haugland, 303 N.W.2d 533, 1981 N.D. LEXIS 223 (N.D. 1981).

In a malpractice case, the malpractice statute of limitations controls over statutes of limitations applicable to contract or other tort actions. Jilek v. Berger Elec., 441 N.W.2d 660, 1989 N.D. LEXIS 108 (N.D. 1989).

The malpractice plaintiff’s knowledge is ordinarily a fact question which is inappropriate for summary judgment, but the issue becomes one of law if the evidence is such that reasonable minds could draw but one conclusion. Wheeler v. Schmid Lab., 451 N.W.2d 133, 1990 N.D. LEXIS 30 (N.D. 1990).

Plaintiffs’ personal injury action was barred in accordance with subsection (3) of this section when inclusion of the phrase “among other things” did not convert a professional negligence claim into one of ordinary negligence. Krein v. DBA Corp., 327 F.3d 723, 2003 U.S. App. LEXIS 8000 (8th Cir. N.D. 2003).

—Architects and Engineers.

Engineers and architects are professionals for purposes of the two-year statute of limitations for malpractice actions. Sime v. Tvenge Assoc. Architects & Planners, P.C., 488 N.W.2d 606, 1992 N.D. LEXIS 142 (N.D. 1992).

Specialized engineering services were clearly “professional” within the meaning of the malpractice statute of limitations. Bottineau Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064, 1992 U.S. App. LEXIS 9578 (8th Cir. N.D. 1992).

—Continuous Treatment.

Even if this state were to adopt the continuous treatment theory, a doctor’s continued prescription for medication eight years after the patient’s last personal contact with the doctor, routine examination by nurse practitioner did not constitute such treatment. Wheeler v. Schmid Lab., 451 N.W.2d 133, 1990 N.D. LEXIS 30 (N.D. 1990).

—Defined.

As used in this section, the term “malpractice” refers to the nature of the subject matter of the action and not to the form of remedial procedure, whether it be in tort or contract. Johnson v. Haugland, 303 N.W.2d 533, 1981 N.D. LEXIS 223 (N.D. 1981).

Malpractice is a professional’s failure to exercise the requisite degree of skill and learning in providing services. Simply stated, malpractice means professional negligence. Jilek v. Berger Elec., 441 N.W.2d 660, 1989 N.D. LEXIS 108 (N.D. 1989).

While this section itself does not spell out the professions which it covers, the legislative history of this section suggests that the legislature envisioned more than one profession in its concept of malpractice. To date the supreme court has held that the statute applies to the professions of medicine and law. Jilek v. Berger Elec., 441 N.W.2d 660, 1989 N.D. LEXIS 108 (N.D. 1989).

The legislature did not intend, by use of the term “malpractice,” for the malpractice statute of limitations to apply to every licensed occupation. Jilek v. Berger Elec., 441 N.W.2d 660, 1989 N.D. LEXIS 108 (N.D. 1989).

The malpractice statute of limitations applies to one practicing a profession, not a trade. Jilek v. Berger Elec., 441 N.W.2d 660, 1989 N.D. LEXIS 108 (N.D. 1989).

The term “malpractice” in subdivision (3) of this section refers to the nature of the subject matter of the action and not to the form of remedial procedure, whether it be in tort or contract. Sime v. Tvenge Assoc. Architects & Planners, P.C., 488 N.W.2d 606, 1992 N.D. LEXIS 142 (N.D. 1992).

—Doctrine of Equitable Tolling.

Supreme Court would not apply doctrine of equitable tolling to prevent the running of the statute of limitations under the specific circumstances of a medical malpractice case. Burr v. Trinity Medical Ctr., 492 N.W.2d 904, 1992 N.D. LEXIS 241 (N.D. 1992).

—Electricians.

An electrician may be trained in a technical area and may perform skilled work, but he or she is not engaged in an occupation that requires a college degree in the specific field. In short, an electrician practices a trade, not a profession. Therefore, because an electrician practices a trade, the two-year malpractice statute of limitations does not apply. Jilek v. Berger Elec., 441 N.W.2d 660, 1989 N.D. LEXIS 108 (N.D. 1989).

—Financial Planners.

Because a financial planning business is not an occupation that requires the specialized knowledge, long and intensive preparation in skills, and scholarly principles underlying such skills typically associated only with professions, the defendant’s business was one to which the six-year statute of limitations applied, rather than the two-year professional malpractice statute. Kuntz v. Muehler, 1999 ND 215, 603 N.W.2d 43, 1999 N.D. LEXIS 247 (N.D. 1999).

—Medical.

The medical malpractice two-year statute of limitations begins to run when the plaintiff knows, or with reasonable diligence should know, of his injury, its cause, and the defendant’s possible negligence; provided however, that the limitation of an action against a physician or licensed hospital will not be extended beyond six years of the act or omission of alleged malpractice by a nondiscovery thereof. Anderson v. Shook, 333 N.W.2d 708, 1983 N.D. LEXIS 262 (N.D. 1983).

Medical malpractice actions must be commenced within two years of the discovery of the act or omission of alleged malpractice. This limitation begins to run when the plaintiff knows, or with reasonable diligence should know, of (1) the injury, (2) its cause, and (3) the defendant’s possible negligence. Wheeler v. Schmid Lab., 451 N.W.2d 133, 1990 N.D. LEXIS 30 (N.D. 1990).

In a medical malpractice action, where plaintiff knew his injury was caused by an extravasation which occurred during the venographic procedure and also knew that a medical technologist directly assisted the radiologist in conducting the procedure, a reasonable person exercising due diligence should have known of the possible negligence of the technician and anyone else associated with the procedure; more than two years elapsed from the time when plaintiff, as a matter of law, should have discovered technician’s alleged negligence, and therefore, his claim was barred. Zettel v. Licht, 518 N.W.2d 214, 1994 N.D. LEXIS 119 (N.D. 1994).

Medical malpractice action filed more than two years after the cause of the patient’s back pain was determined to be fractured vertebrae and collapsed discs, contrary to the earlier diagnosis of fibrositis, was time-barred. Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, 599 N.W.2d 253, 1999 N.D. LEXIS 189 (N.D. 1999).

Summary judgment was properly granted against a claim of medical malpractice based on the six-year statute of repose in this section where the act of alleged negligence occurred in 1992 and suit was not filed until 2001; this section did not violate the equal protection clause, and neither equitable estoppel nor the continuous rule applied to bar application of the statute. Hoffner v. Johnson, 2003 ND 79, 660 N.W.2d 909, 2003 N.D. LEXIS 91 (N.D. 2003).

In a patient’s medical malpractice suit against an out-of-state company that provided an allegedly non-sterile tendon for his replacement surgery, because the company’s business of harvesting, preservation, and delivery of body parts involved science or art requiring special skills not ordinarily possessed by lay persons, the case was governed by the two-year statute of limitations for malpractice under subdivision (3) of this section. Beaudoin v. S. Tex. Blood & Tissue Ctr., 2004 ND 49, 676 N.W.2d 103, 2004 N.D. LEXIS 63 (N.D. 2004).

Summary judgment was properly granted in favor of a radiologist in a wrongful death action based on medical malpractice because the two-year time limitation began to run the day after a decedent had an allergic reaction and died during a routine testing procedure at a hospital; the record showed that a representative had notice of the incident on the day the test was performed. Long v. Jaszczak, 2004 ND 194, 688 N.W.2d 173, 2004 N.D. LEXIS 324 (N.D. 2004).

Wrongful death action based on medical malpractice against a referring physician was not barred by the two-year statute of limitations where the evidence showed that plaintiff had complied with the requirements of N.D.C.C. § 28-01-38; the summons and complaint were delivered to the sheriff’s office in the physician’s county of residence for service on the day the statute of limitations expired. Long v. Jaszczak, 2004 ND 194, 688 N.W.2d 173, 2004 N.D. LEXIS 324 (N.D. 2004).

Summary judgment was properly awarded to doctors on parents’ wrongful birth claim because even if the claim was not barred by North Dakota law, it was barred by the two-year statute of limitations, N.D.C.C. § 28-01-18(3), for medical malpractice actions; the summons and complaint were not served on the doctors until May 5, 2009, which was more than two years after the child’s birth on April 12, 2007. B.D.H. v. Mickelson, 2010 ND 235, 792 N.W.2d 169, 2010 N.D. LEXIS 238 (N.D. 2010).

District court did not err in holding that a mother’s malpractice claim against her daughter’s psychiatrist was time-barred by N.D.C.C. § 28-01-18(4) where the earliest date facts occurred which would have placed a reasonable person on notice that a potential claim of medical malpractice existed was the day the mother was alerted her daughter had gone missing and the same day she learned of her daughter’s death. Since the mother had not filed suit within two years of that date, her claim was untimely. McCarthy v. Getz, 2019 ND 190, 930 N.W.2d 640, 2019 N.D. LEXIS 194 (N.D. 2019).

Case law applied an objective standard to determine the date the statute of limitations began to run in a wrongful death claim based on allegations of medical malpractice. That date was the date the plaintiff became aware that the medical treatment sought by the deceased had not gone as planned. McCarthy v. Getz, 2019 ND 190, 930 N.W.2d 640, 2019 N.D. LEXIS 194 (N.D. 2019).

Husband’s negligence claims were governed by the two-year statute of limitations for malpractice because the actual nature of his action was a hospital’s negligent provision of medical services to his wife; the question of whether the wife contracted hepatitis C due to a hospital’s alleged substandard phlebotomy services and failure to have proper drug diversion protocol involved science or art requiring special skills not ordinarily possessed by lay persons. Krebsbach v. Trinity Hosps., Inc., 2020 ND 24, 938 N.W.2d 133, 2020 N.D. LEXIS 24 (N.D. 2020).

Husband’s negligence claims were barred by the two-year statute of limitations for malpractice because after receiving a letter from attorneys about a possible personal injury claim, the husband reasonably should have recognized the need to investigate a hospital’s possible negligence; the two-year malpractice statute of limitations expired before the husband moved to intervene in a lawsuit with other plaintiffs against the hospital. Krebsbach v. Trinity Hosps., Inc., 2020 ND 24, 938 N.W.2d 133, 2020 N.D. LEXIS 24 (N.D. 2020).

—Privity.

The Supreme Court does not believe it can or should construe the term malpractice, within the statute, as encompassing only those actions where there is privity or near privity. Sime v. Tvenge Assoc. Architects & Planners, P.C., 488 N.W.2d 606, 1992 N.D. LEXIS 142 (N.D. 1992).

—Social Worker.

Social worker’s care of a patient who sued him for professional malpractice was within the two-year limitation period of N.D.C.C. § 28-01-18(3). However, another treating professional, whose last visit with the patient was outside of the limitations period, was properly dismissed from the action. Carpenter v. Rohrer, 2006 ND 111, 714 N.W.2d 804, 2006 N.D. LEXIS 113 (N.D. 2006).

—Tradespersons.

The malpractice statute of limitations applies to one practicing a profession, not a trade. Jilek v. Berger Elec., 441 N.W.2d 660, 1989 N.D. LEXIS 108 (N.D. 1989).

The six-year statute of limitations in N.D.C.C. § 28-01-16 for nonprofessional negligence applies to all tradespersons alike. Jilek v. Berger Elec., 441 N.W.2d 660, 1989 N.D. LEXIS 108 (N.D. 1989).

Multiple Causes in Pleadings.

A complaint may plead both a cause of action for legal malpractice and a cause of action for fraud, each with a different statute of limitations. Bjorgen v. Kinsey, 466 N.W.2d 553, 1991 N.D. LEXIS 22 (N.D. 1991).

Ordinary Negligence and Malpractice Distinguished.

The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of science or art, requiring special skills not ordinarily possessed by lay persons, or whether the conduct complained of can instead be assessed on the basis of common everyday experience. Sime v. Tvenge Assoc. Architects & Planners, P.C., 488 N.W.2d 606, 1992 N.D. LEXIS 142 (N.D. 1992).

Political Subdivision Action.

The two-year statute of limitation, under subsection 1, which specifically applies to assault and false-imprisonment actions, falls within the three-year parameter for bringing actions against political subdivisions or sheriffs and constables under N.D.C.C. § 32-12.1-10 and N.D.C.C. § 28-01-17(1), respectively. O'Fallon v. Pollard, 427 N.W.2d 809, 1988 N.D. LEXIS 188 (N.D. 1988).

Survival Action.

The two-year statute of limitations under this section does not apply to survival actions. Hulne v. International Harvester Co., 322 N.W.2d 474, 1982 N.D. LEXIS 365 (N.D. 1982).

Tax Action.

The penalty arising upon the delinquency of a statutory liability to pay a tax and interest on unpaid taxes after their due date do not constitute a penalty or forfeiture within the meaning of the statute of limitations; therefore, the district court did not err in ruling that subsection 2 is inapplicable to the penalty and interest portion of the assessment for gross production taxes. Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 1987 N.D. LEXIS 354 (N.D. 1987).

Workmen’s Compensation.

This section did not apply to an action to enforce an award of the workmen’s compensation bureau. State ex rel. Woods v. Hughes Oil Co., 58 N.D. 581, 226 N.W. 586, 1929 N.D. LEXIS 252 (N.D. 1929).

Wrongful Death.

Infancy of person on whose behalf guardian ad litem brought suit tolled subdivision 4 of this section and permitted her to bring an action during her infancy more than two years after her father’s death. Sprecher v. Magstadt, 213 N.W.2d 881, 1973 N.D. LEXIS 139 (N.D. 1973).

The two-year statute of limitations period contained in subdivision 4 is applicable to wrongful death actions. Sheets v. Graco, Inc., 292 N.W.2d 63, 1980 N.D. LEXIS 225 (N.D. 1980); Ness v. St. Aloisius Hosp., 301 N.W.2d 647, 1981 N.D. LEXIS 247 (N.D. 1981); Krueger v. St. Joseph's Hosp., 305 N.W.2d 18, 1981 N.D. LEXIS 283 (N.D. 1981).

The “discovery rule” of N.D.C.C. § 28-01-24, which authorizes a person to commence an action within one year from the time the cause of action is discovered or might have been discovered in the exercise of diligence where the party against whom the cause of action exists prevents by fraud or fraudulent concealment the person in whose favor the cause of action exists from obtaining knowledge thereof, is applicable to wrongful death actions despite fact that death has occurred. Krueger v. St. Joseph's Hosp., 305 N.W.2d 18, 1981 N.D. LEXIS 283 (N.D. 1981).

A wrongful death action is a separate and distinct cause of action for the benefit of heirs which accrues upon the death of the decedent. Matthews v. Celotex Corp., 569 F. Supp. 1539, 1983 U.S. Dist. LEXIS 13988 (D.N.D. 1983).

Wrongful Death Caused by Medical Malpractice.

Cause of action for wrongful death caused by medical malpractice accrues at time of patient’s death and thus wrongful death portion of combined wrongful death and malpractice action was properly dismissed, when not commenced within two years of death; the judicially created “discovery” rule used in malpractice cases does not apply to wrongful death actions since subdivision 4 clearly designates the time when a wrongful death action accrues and leaves no room for judicial construction, the word “deemed” being used in its conclusive sense as a positive statement of when an action shall accrue. Hubbard v. Libi, 229 N.W.2d 82, 1975 N.D. LEXIS 183 (N.D. 1975).

Action for wrongful death based upon medical malpractice accrues at the time of death of the injured party and the discovery rule contained in subdivision 3 of this section is not applicable to such action. Ness v. St. Aloisius Hosp., 301 N.W.2d 647, 1981 N.D. LEXIS 247 (N.D. 1981).

The “discovery rule” of N.D.C.C. § 28-01-24, which authorizes a person to commence an action within one year from the time the cause of action is discovered or might have been discovered in the exercise of diligence where the party against whom the cause of action exists prevents by fraud or fraudulent concealment the person in whose favor the cause of action exists from obtaining knowledge thereof, is applicable to wrongful death actions despite fact that death has occurred, and is a distinct “discovery rule” from the medical malpractice “discovery rule” in subdivision 3 of this section. Krueger v. St. Joseph's Hosp., 305 N.W.2d 18, 1981 N.D. LEXIS 283 (N.D. 1981).

Collateral References.

Federal Tort Claims Acts, limitations under, 1 A.L.R.2d 222.

When limitation period begins to run against cause of action for contracting of disease, 11 A.L.R.2d 277.

Action by passenger against carrier for personal injuries as based on contract or on tort, with respect to application of statutes of limitation, 20 A.L.R.2d 331.

Limitation of actions as to slander of title based on recording of instrument purporting to affect title, 39 A.L.R.2d 840.

When statute of limitations begins to run against action for false imprisonment or false arrest, 49 A.L.R.2d 922.

Death action against municipal corporation as subject to limitations governing wrongful death actions or that governing actions against a municipality for injury to person or property, 53 A.L.R.2d 1068.

When statute of limitations applies to action under dramshop or civil damage act, 55 A.L.R.2d 1286.

When statute of limitations begins to run against civil action for conspiracy, 62 A.L.R.2d 1369.

Malpractice, when statute of limitations commences to run against action against physicians, surgeons, or dentists for, 80 A.L.R.2d 368; 70 A.L.R.3d 7.

Time from which statute begins to run against action for wrongful death, 97 A.L.R.2d 1151.

Publication of libel for purposes of statute of limitations, 42 A.L.R.3d 807.

When statute of limitations commences to run against malpractice action based on leaving foreign substance in patient’s body, 70 A.L.R.3d 7.

What statute of limitations governs damage action against attorney for malpractice, 2 A.L.R.4th 284.

Statute of limitations applicable to third person’s action against psychiatrist, psychologist, or other mental health practitioner, based on failure to warn persons against whom patient expressed threats, 41 A.L.R.4th 1078.

Time of discovery as affecting running of statute of limitations in wrongful death action, 49 A.L.R.4th 972.

Medical malpractice: applicability of “foreign object” exception in medical malpractice statutes of limitations, 50 A.L.R.4th 250.

Medical malpractice: “loss of chance” casualty, 54 A.L.R.4th 10.

Incompetency of counsel as grounds for relief from state court civil judgments, abandonment of client or case, 64 A.L.R.4th 323.

Recovery in death action for failure to diagnose incurable disease which caused death, 64 A.L.R.4th 1232.

Penalties for common-law criminal offense of false imprisonment, 67 A.L.R.4th 1103.

Medical malpractice: statute of limitations in wrongful death action based on medical malpractice, 70 A.L.R.4th 535.

Medical malpractice: when limitations period begins to run on claim for optometrist’s malpractice, 70 A.L.R.4th 600.

Legal malpractice in handling or defending medical malpractice claim, 78 A.L.R.4th 725.

Medical malpractice: drug manufacturer’s package insert recommendations as evidence of standard of care, 82 A.L.R.4th 166.

Running of Limitations Against Action for Civil Damages for Sexual Abuse of Child, 9 A.L.R.5th 321.

Joint and Several Liability of Physicians Whose Independent Negligence in Treatment of Patient Causes Indivisible Injury, 9 A.L.R.5th 746.

Application of statute of limitations in private tort actions based on injury to persons or property caused by underground flow of contaminants, 11 A.L.R.5th 438.

Medical malpractice: who are “health care providers,” or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 A.L.R.5th 1.

Posttraumatic syndrome as tolling running of statute of limitations, 12 A.L.R.5th 546.

What statute of limitations applies to state law action by public sector employee for breach of union’s duty of fair representation, 12 A.L.R.5th 950.

When statute of limitations begins to run upon action against attorney for legal malpractice — deliberate wrongful acts or omissions, 67 A.L.R.5th 587.

Medical malpractice statutes of limitation minority provisions, 71 A.L.R.5th 307.

Attorney malpractice — Tolling or other exceptions to running of statute of limitations, 87 A.L.R.5th 473.

Insurance agents or brokers as professionals or nonprofessionals for purposes of malpractice statutes of limitations, 121 A.L.R.5th 365.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence—View that statute begins to run from time of occurrence of negligent act or omission, 11 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence—View that statute begins to run from time of occurrence of sustaining damage or injury and other theories, 12 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence—View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Statement of rule and application of rule to providing client with allegedly negligent advice or failing to advise, 13 A.L.R.6th 1.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence—View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Application of rule to conduct of litigation and delay or inaction in conducting client’s affairs, 14 A.L.R.6th 1.

Timeliness of action under medical malpractice statute of repose, aside from effect of fraudulent concealment of patient’s cause of action,14 A.L.R.6th 301.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence—View that statute begins to run from time client discovers, or should have discovered, negligent act or omission—Application of rule to property, estate, corporate, and document cases, 15 A.L.R.6th 427.

When statute of limitations begins to run on action against attorney for malpractice based upon negligence—View that statute begins to run from time client discovers, or should have discovered, negligent act or omission-Application of rule to negligent misrepresentation, failure to supervise junior counsel, conflict of interest, billing disputes, and unspecified acts of negligence, 16 A.L.R.6th 653.

When statute of limitations begins to run in case of dental malpractice, 17 A.L.R.6th 159.

Effect of Fraudulent or Negligent Concealment of Patient’s Cause of Action on Timeliness of Action Under Medical Malpractice Statute of Repose. 19 A.L.R.6th 475.

Law Reviews.

Limitation of Actions — Ignorance of Cause of Action — Medical Malpractice Claim Accrues When Plaintiff Discovers Defendant’s Possible Negligence, 60 N.D. L. Rev. 261 (1984).

Limitation of Actions — North Dakota Adopts Continuous Representation Rule for Tolling Statute of Limitations in Legal Malpractice Actions, 64 N.D. L. Rev. 547 (1988).

Limitation of Actions—Negligence: North Dakota Malpractice Statute of Limitations is Limited in Scope, 66 N.D. L. Rev. 239 (1990).

Summary of significant decisions rendered by the North Dakota Supreme Court in 1990 relating to legal malpractice, 66 N.D. L. Rev. 753 (1990).

Summary of 1991 North Dakota Supreme Court decisions regarding attorney/client, 68 N.D. L. Rev. 758 (1991).

North Dakota Legal Malpractice: A Summary of the Law, 70 N.D. L. Rev. 615 (1994).

Case Comment: Constitutional Law - Equal Protection of Laws: The Equal Protection Challenge to the Medical Malpractice Statute of Repose in North Dakota,Hoffner v. Johnson, 2003 ND 79, 660 N.W.2d 909 (2003), 80 N.D. L. Rev. 175 (2004).

North Dakota Supreme Court Review (Long v. Jaszczak),81 N.D. L. Rev. 585 (2005).

Penalties.

This section did not apply to an action against a municipal officer for penalty or forfeiture for exceeding contract authority. St. Anthony & Dakota Elevator Co. v. Martineau, 30 N.D. 425, 153 N.W. 416, 1915 N.D. LEXIS 151 (N.D. 1915).

Collateral References.

What period of limitation governs in an action to recover a penalty from a public officer and his official bond or surety, 18 A.L.R.2d 1176.

Abandonment.

Where a husband during his lifetime abandoned his homestead interests in certain land upon which the wife never resided, and some four months after the abandonment conveyed the homestead, an action to set aside the husband’s deed cannot be maintained by the widow although she did not join in the deed. Blatchley v. Dakota Land & Cattle Co., 26 N.D. 532, 145 N.W. 95, 1914 N.D. LEXIS 150 (N.D. 1914).

Adverse Claims.

A wife may join with the husband as joint plaintiff in an action to determine adverse claims to a homestead, though the legal title thereto is held in the husband’s name. Sexton v. Sutherland, 42 N.D. 509, 174 N.W. 214 (1919), distinguished, Grotberg v. First Nat’l Bank, 54 N.D. 548, 210 N.W. 21 (1926) and Nelson v. Griggs County, 56 N.D. 729, 219 N.W. 225, 1928 N.D. LEXIS 193 (N.D. 1928).

Insanity of Spouse.

The statute prescribing the time within which the transfer of a homestead by one spouse may be challenged does not apply to the conveyance of the homestead while the other spouse is an inmate of the state hospital for the insane. Grotberg v. First Nat'l Bank, 54 N.D. 548, 210 N.W. 21, 1926 N.D. LEXIS 58 (N.D. 1926).

Mortgage.

Homestead rights must be asserted by a mortgagor within the period of limitation. Justice v. Souder, 19 N.D. 613, 125 N.W. 1029, 1910 N.D. LEXIS 40 (N.D. 1910).

The holder under a foreclosure sale on a subsequent mortgage is not in a position to assert title as against a previous mortgage in which the wife did not join. Vannatta v. McClintock, 26 N.D. 166, 144 N.W. 76, 1913 N.D. LEXIS 52 (N.D. 1913).

Where the wife mortgaged a homestead conveyed to her by her husband to the bank of which the husband was an officer to take up his overdraft, and to give him a cash balance, the wife and second mortgagee, with notice of the first mortgage, are estopped as against an assignee thereof to assert its invalidity as a mortgage on the homestead. State v. Stoelting, 53 N.D. 736, 208 N.W. 101, 1926 N.D. LEXIS 26 (N.D. 1926).

Option Contract.

In an action for specific performance of an option contract for the purchase of a residence property, the two-year statute of limitations against a defense based on homestead rights could not begin to run until the plaintiff attempted to exercise his option. LARSON v. COLE, 76 N.D. 32, 33 N.W.2d 325, 1948 N.D. LEXIS 57 (N.D. 1948).

Adverse Possession.

Where a mortgagee in possession is claiming adversely and such adverse possession has continued for more than ten years before an action to quiet title is commenced, mortgagors’ rights are barred unless there is some remedy available to them which is not barred in ten years. Nash v. Northwest Land Co., 15 N.D. 566, 108 N.W. 792 (1906), distinguished, Blessett v. Turcotte, 23 N.D. 417, 136 N.W. 945 (1912) and Page v. Smith, 33 N.D. 369, 157 N.W. 477, 1916 N.D. LEXIS 103 (N.D. 1916).

Mere color of title evidenced by a void tax deed will not start the period of ten years prescribed by this section to run against the original owner while he has both valid title and possession. Grandin v. Gardiner, 63 N.W.2d 128, 1954 N.D. LEXIS 66 (N.D. 1954).

The possession of a county under a valid tax deed is not adverse to the former owner until notice of sale is given to record owners and this section does not apply during such time. Wittrock v. Weisz, 73 N.W.2d 355, 1955 N.D. LEXIS 154 (N.D. 1955).

Since a county under a tax deed valid on its face, does not hold adversely to the former owner or his heirs who succeed to the title, the provisions of this section are not applicable to the period that the county holds title as its provisions are inconsistent with the right to redeem or repurchase while the county holds title to the property. McGee v. Stokes' Heirs at Law, 76 N.W.2d 145, 1956 N.D. LEXIS 110 (N.D. 1956).

Applicability.

Six-year limitations period under N.D.C.C. § 28-01-16, and not the 10-year period under N.D.C.C. § 28-01-22, was properly applied to breach of fiduciary duty and “freeze-out” claims brought by a minority owner in a limited liability company. The claims fell within N.D.C.C. § 28-01-16(2) because they were based on the North Dakota Limited Liability Company Act, N.D.C.C. §§ 10-32-01 et seq., which did not expressly provide a statute of limitations; the claims also fell within N.D.C.C. § 28-01-16(5), as they involved an alleged injury not arising from contract. Roemmich v. Eagle Eye Dev., LLC, 526 F.3d 343, 2008 U.S. App. LEXIS 10239 (8th Cir. N.D. 2008).

Compensation for Land Taken.

An owner may bring an action against a township for compensation for land taken contrary to the statute any time before the town’s acquisition of title. Schilling v. Carl Township, 60 N.D. 480, 235 N.W. 126, 1931 N.D. LEXIS 193 (N.D. 1931), overruled in part, Hager v. City of Devils Lake, 2009 ND 180, 773 N.W.2d 420, 2009 N.D. LEXIS 188 (N.D. 2009).

Foreclosure of Mortgage.

A cause of action to foreclose a mortgage accrues when the debt matures, and the ten-year statute of limitations begins to run at that date. Baird v. Larson, 69 N.D. 795, 291 N.W. 545, 1940 N.D. LEXIS 210 (N.D. 1940).

An action to foreclose a chattel mortgage may be maintained within ten years after the cause of action has accrued. Baird v. Bartholomay, 70 N.D. 332, 294 N.W. 367, 1940 N.D. LEXIS 177 (N.D. 1940).

Inverse Condemnation.

Inverse condemnation is an action in implied contract covered by the six-year statute of limitations of N.D.C.C. § 28-01-16, not the ten-year period of this section. Maragos v. Minot, 191 N.W.2d 570, 1971 N.D. LEXIS 106 (N.D. 1971).

Nonpossessory Right in Real Estate.

The right to maintain an action to remove a cloud upon the title to a nonpossessory interest in real property is a continuing right and a statute of limitations affecting such a right of action does not commence to run as long as the possession of the property is consistent with the nonpossessory interest. Yttredahl v. Federal Farm Mtg. Corp., 104 N.W.2d 705 (N.D. 1960); Wisness v. Paniman, 120 N.W.2d 594, 1963 N.D. LEXIS 76 (N.D. 1963).

Quiet Title Action.

This section does not apply to an action to quiet title. Sabot v. Fox, 272 N.W.2d 280, 1978 N.D. LEXIS 185 (N.D. 1978).

Redemption of Mortgage.

This section does not apply to an action to redeem from a mortgage where mortgagee took possession of the mortgaged premises after condition broken, but before foreclosure until some claim inconsistent with that of a lien holder is asserted and surrender of the possession is refused on tender of mortgage debt. Blessett v. Turcotte, 23 N.D. 417, 136 N.W. 945, 1912 N.D. LEXIS 101 (N.D. 1912).

An equitable action to redeem by the mortgagor or his successors must be commenced within ten years after the cause of action accrued. Jungkunz v. Comonow, 43 N.D. 212, 174 N.W. 68, 1919 N.D. LEXIS 15 (N.D. 1919).

Termination of lease.

Court did not err in holding that the leases terminated on December 31, 2011 and in dismissing the lessee's counterclaims because there was no automatic renewal, the lessors' letter sent to the lessee was effective to exercise the lessors' right to terminate the leases for any cause at the end of the one-year term, the lessee failed to raise a genuine issue of material fact about corporate ratification, and the lessee's counterclaim was time-barred as a matter of law. Funke v. Aggregate Constr., Inc., 2015 ND 123, 863 N.W.2d 855, 2015 N.D. LEXIS 121 (N.D. 2015).

Collateral References.

Time when statute of limitations starts to run against breach of covenant running with land and requiring affirmative acts by covenantor, 17 A.L.R.2d 1251.

Applicability of statute of limitations or laches to quo warranto proceedings, 26 A.L.R.2d 828.

Actions involving re-employment of discharged serviceman as affected by limitations of time, 29 A.L.R.2d 1279.

What statute of limitations governs action to reform instrument, 36 A.L.R.2d 687.

Limitations statute applicable to criminal contempt proceedings, 38 A.L.R.2d 1131.

Statute of limitations applicable to action, by way of subrogation or the like, by employer or insurance carrier against third person for injury to employee, 41 A.L.R.2d 1044.

When statute of limitation begins to run against action on bond of personal representative, 44 A.L.R.2d 807.

When statute of limitations begins to run against an action on, or relating to, National Service Life Insurance Policy, 44 A.L.R.2d 1189.

When statute of limitations starts to run against enforcement of resulting trust, 45 A.L.R.2d 382.

Limitation of actions to enforce accountability of cotenant for rents and profits for use and occupation, 51 A.L.R.2d 388, 454.

Limitation of actions for annulment of marriage, 52 A.L.R.2d 1163.

What constitutes sufficient repudiation of express trust by trustee to cause statute of limitations to run, 54 A.L.R.2d 13, 147.

Delay in asserting contractual right to arbitration as precluding enforcement thereof, 25 A.L.R.3d 1171.

When statute of limitations commences to run against claim for contribution or indemnity based on tort, 57 A.L.R.3d 867.

Statute of limitations as bar to arbitration under agreement, 94 A.L.R.3d 533.

What is “cause” justifying discharge from employment of returning serviceman re-employed under sec. 9 of the Military Selective Service Act of 1967 (50 USCS Appendix sec. 459), 9 A.L.R. Fed. 225.

Applicability to fringe benefits of Vietnam Era Veterans’ Readjustment Assistance Act provision establishing veterans’ reemployment rights (38 USCS sec. 2021), 83 A.L.R. Fed. 908.

Application of statute of limitations in private tort actions based on injury to persons or property caused by underground flow of contaminants, 11 A.L.R.5th 438.

What statute of limitations applies to state law action by public sector employee for breach of union’s duty of fair representation, 12 A.L.R.5th 950.

Applicability.

Where a tenured professor at a state university was dismissed for good cause, the three year statute of limitations in this section applied to his breach of contract suit against the state board of education, not the six year period in N.D.C.C. § 28-01-16. Dimond v. State, 2001 ND 208, 637 N.W.2d 692, 2001 N.D. LEXIS 238 (N.D. 2001).

District court did not err in dismissing as untimely plaintiff’s claims relating to her son’s death. After speaking with an independent toxicologist on December 27, 2013, plaintiff was aware of facts sufficient to put her on notice of a potential claim, and she failed to sue defendants within three years of that date. Ayling v. Sens, 2019 ND 114, 926 N.W.2d 147, 2019 N.D. LEXIS 117 (N.D. 2019).

No Other Law.

Three year statute of limitations under this section applied only when no other period is specified; therefore, whether seven year statute of limitations under N.D.C.C. § 12.1-06.1-05 for violations of the Racketeer Influenced and Corrupt Organization Act (RICO) applied depended on whether plaintiff demonstrated state employee’s conduct amounted to a pattern of racketeering activity, under RICO. Burr v. Kulas, 1997 ND 98, 564 N.W.2d 631, 1997 N.D. LEXIS 114 (N.D. 1997).

Upon remand of the case to the trial court, the trial court under the authority of N.D.C.C. § 1-02-39 could consider the factors listed in that statute to determine the appropriate limitations period to be applied to the lessees’ contract claims against the political subdivision. The trial court needed to do so because it applied the wrong limitations period to determine that the contract claims were barred against the political subdivision, especially given the legislature’s intent under N.D.C.C. § 32-12.1-01 that claims against political subdivisions be treated separately from claims against the state, that tort claims as recognized by the factors set forth in N.D.C.C. § 32-12.1-02, that state tort liability was separate from political subdivision liability as contemplated under N.D.C.C. § 32-12.2-01, and that the legislature had provided a “catch-all” limitations provision for actions against only the state and its employees under N.D.C.C. § 28-01-22.1. Finstad v. Ransom-Sargent Water Users, Inc., 2011 ND 215, 812 N.W.2d 323, 2011 N.D. LEXIS 216 (N.D. 2011).

Law Reviews.

Sovereign Immunity — Judicial Abrogation of North Dakota’s Sovereign Immunity Results in Its Possible Legislative Reassertion and Legislation to Provide Injured Parties with a Remedy for the Torts Committed by the State or Its Agents, 71 N.D. L. Rev. 761 (1995).

Assessments for Gross Production Taxes.

The general six-year statute of limitations in N.D.C.C. § 28-01-16(2) applies to assessments for gross production taxes. Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 1987 N.D. LEXIS 354 (N.D. 1987).

Old-Age Assistance.

This section did not apply to a claim of the public welfare board against estate of the recipient to recover old-age assistance payments. Weber v. Weber, 77 N.D. 142, 42 N.W.2d 67, 1950 N.D. LEXIS 113 (N.D. 1950).

Political Subdivisions.

School districts and counties are within the terms of the statute of limitations and the statute runs not only for but against them. Rosedale Sch. Dist. v. Towner County, 56 N.D. 41, 216 N.W. 212, 1927 N.D. LEXIS 70 (N.D. 1927).

State Bonding Fund.

The former State Bonding Fund Act, former chapter 26-23 (see now chapter 26.1-21), insofar as it provided conditions and limitations for the filing of claims and bringing of actions against the state bonding fund, was exclusive as against the general statutes of limitations. Morton County v. Tavis, 66 N.W.2d 201, 1954 N.D. LEXIS 102 (N.D. 1954).

Tax Liens.

A foreclosure of a tax lien is not subject to statute of limitations. Wells County v. McHenry, 7 N.D. 246, 74 N.W. 241, 1898 N.D. LEXIS 57 (N.D. 1898).

Collateral References.

Claim of government or subdivision thereof as within provision of nonclaim statute, 34 A.L.R.2d 1003.

Applicability of general statute of limitations to real estate tax lien foreclosure action, 59 A.L.R.2d 1144.

Applicability of statute of limitations or doctrine of laches to proceedings to revoke or suspend license to practice medicine, 51 A.L.R.4th 1147.

Applicability.

This section is applicable only when an action is otherwise barred by the passage of time. Phoenix Assurance Co. v. Runck, 366 N.W.2d 788, 1985 N.D. LEXIS 299 (N.D. 1985); Beavers v. Walters, 537 N.W.2d 647, 1995 N.D. LEXIS 162 (N.D. 1995).

Because this section is only applicable when an action is otherwise barred by the passage of time, it is inapplicable in an action for relief on the ground of fraud. Phoenix Assurance Co. v. Runck, 366 N.W.2d 788, 1985 N.D. LEXIS 299 (N.D. 1985).

The doctrine of fraudulent concealment is applicable to breach of contract actions falling under Article II of the U.C.C. JN Exploration & Prod. v. Western Gas Resources, 153 F.3d 906, 1998 U.S. App. LEXIS 21261 (8th Cir. N.D. 1998).

Where an insurance adjuster failed to disclose an insured’s death while pursuing settlement negotiations in an auto accident case, this section did not apply to extend the statute of limitations; the plaintiff was aware of the cause of action but not the death of the defendant. Muhammed v. Welch, 2004 ND 46, 675 N.W.2d 402, 2004 N.D. LEXIS 46 (N.D. 2004).

Commencement of Period of Limitation.

In an action against physicians for alleged assault and malpractice resulting from the removal of certain organs from plaintiff’s body, where plaintiff did not discover the removal until a subsequent operation six years after the removal, it was at that time that the one-year limitation was set in motion and plaintiff’s failure to initiate action within one year from the date of the second operation barred her from recovery. Linke v. Sorenson, 276 F.2d 151, 1960 U.S. App. LEXIS 4929 (8th Cir. N.D. 1960).

Effect of Section 28-01-16.

There is no irreconcilable conflict between this section and N.D.C.C. § 28-01-16. Phoenix Assurance Co. v. Runck, 366 N.W.2d 788, 1985 N.D. LEXIS 299 (N.D. 1985).

Fraudulent Concealment As Estoppel.

Fraudulent concealment is not a new and separate cause of action in itself, but it merely estops the guilty party from relying on the defense of limitation until the fraud is discovered. Linke v. Sorenson, 276 F.2d 151, 1960 U.S. App. LEXIS 4929 (8th Cir. N.D. 1960).

Purpose.

This section is designed to extend the period of time within which an action, otherwise barred by the passage of time because of a statute of limitation, may be brought when one person, by fraud or fraudulent concealment, has prevented another from obtaining knowledge of the existence of a cause of action. Phoenix Assurance Co. v. Runck, 366 N.W.2d 788, 1985 N.D. LEXIS 299 (N.D. 1985).

Wrongful Death Actions.

This section is applicable to wrongful death actions. Krueger v. St. Joseph's Hosp., 305 N.W.2d 18, 1981 N.D. LEXIS 283 (N.D. 1981).

Collateral References.

Period of limitation tolled by fraud, 15 A.L.R.2d 500.

Liability of manufacturer or seller for injury or death allegedly caused by use of contraceptive, 54 A.L.R.5th 1.

Attorney malpractice — Tolling or other exceptions to running of statute of limitations, 87 A.L.R.5th 473.

Applicability.

Probate code nonclaim provisions of N.D.C.C. § 30.1-19-03 are not subject to the tolling provisions of N.D.C.C. § 28-01-25(1) during a person’s minority. Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, 2013 N.D. LEXIS 85 (N.D. 2013).

Discovery.

In applying the discovery rule, for purposes of determining when the claim for relief accrues under this section, the claimant is deemed to know facts that a reasonable person, not suffering from any disability under the statute, would know. BASF Corp. v. Symington, 512 N.W.2d 692, 1994 N.D. LEXIS 40 (N.D. 1994).

Effect of Section 28-01-31.

Section 28-01-31 and this section allow a mentally incompetent person with multiple disabilities, whose claim accrues six years or more before she becomes an adult, an extension of six years to file the claim, a statutory one-year extension for minority after reaching the age of majority, as well as a statutory five-year extension for her mental incapacity. BASF Corp. v. Symington, 512 N.W.2d 692, 1994 N.D. LEXIS 40 (N.D. 1994).

Legislative Intent.

The language of the statute limiting extensions indicates that the legislature did not intend to allow claimants with disabilities unlimited time to file lawsuits. BASF Corp. v. Symington, 512 N.W.2d 692, 1994 N.D. LEXIS 40 (N.D. 1994).

Notice of Claim Against Political Subdivision.

This section operated to extend minor’s time for filing claim against school district to ninety days (filing period under applicable statute) after minor reached age of eighteen years. Besette v. Enderlin Sch. Dist., 288 N.W.2d 67, 1980 N.D. LEXIS 181 (N.D. 1980).

Prisoner Status.

A prisoner waived the benefit of the tolling statute, for purposes of a legal malpractice claim against his former defense counsel, where he filed and litigated many pro se legal actions concerning that counsel’s representation including an appeal of his sentence, several habeas petitions, and a complaint against counsel to the Iowa State Bar Association. Such a prisoner was under no actual disability from gaining access to the courts and he removed the disability of his imprisonment and the protection of the tolling statute when he litigated numerous pro se actions as a prisoner. Runck v. Kutmus, 997 F.2d 399, 1993 U.S. App. LEXIS 15491 (8th Cir. N.D. 1993).

Proof of Incompetence.

When a plaintiff could not prove incompetence sufficient to disable him from pursuing legal claims, and when the plaintiff knew enough about the injury to assert his rights, subsection (b) of this section did not toll the statute of limitations, despite the plaintiff’s inability to determine the exact parties responsible without legal counsel. Krein v. DBA Corp., 327 F.3d 723, 2003 U.S. App. LEXIS 8000 (8th Cir. N.D. 2003).

Repressed Memory.

This section only extends the regular limitations period if the plaintiff suffers from one of the three listed disabilities at the time the claim for relief accrues, and a repressed memory is not listed; therefore, this section does not categorically require a sexual-abuse victim with a repressed memory to begin an action within one year of when a potential claim was “discovered.” Peterson v. Huso, 552 N.W.2d 83, 1996 N.D. LEXIS 195 (N.D. 1996).

Wrongful Death.

Subdivision 1 permitted an infant to bring an action for wrongful death based on the demise of her father, during her infancy and more than two years after her father’s death. Sprecher v. Magstadt, 213 N.W.2d 881, 1973 N.D. LEXIS 139 (N.D. 1973).

Wrongful death action under N.D.C.C. § 32-21-01 was barred by the probate code nonclaim provisions under N.D.C.C. § 30.1-19-03(1)-(3) because the representative was not a reasonably ascertainable creditor entitled to actual notice under N.D.C.C. § 30.1-19-01 when she told the representative of the pilot’s estate that no tort claims would be pursued, the claims were not filed within three months of the pilot’s death, and the nonclaim provisions were not subject to the tolling provisions of N.D.C.C. § 28-01-25(1) during the children’s minority. Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, 2013 N.D. LEXIS 85 (N.D. 2013).

Collateral References.

Time of existence of mental incompetency which will prevent or suspend running of statute of limitations, 41 A.L.R.2d 726.

Statute of limitations in illegitimacy proceedings, 59 A.L.R.3d 685.

Imprisonment of party to civil action as tolling statute of limitations, 77 A.L.R.3d 735.

Tolling of statute of limitations, on account of minority of injured child, as applicable to parent’s or guardian’s right of action arising out of same injury, 49 A.L.R.4th 216.

Surviving parent’s minority as tolling limitation period on suit for child’s wrongful death, 54 A.L.R.4th 362.

Running of Limitations Against Action for Civil Damages for Sexual Abuse of Child, 9 A.L.R.5th 321.

Emotional or psychological “blocking” or repression as tolling running of statute of limitations, 11 A.L.R.5th 588.

Posttraumatic syndrome as tolling running of statute of limitations, 12 A.L.R.5th 546.

Attorney malpractice — Tolling or other exceptions to running of statute of limitations, 87 A.L.R.5th 473.

When Is Person, Other than One Claiming Posttraumatic Stress Syndrome or Memory Repression, Within Coverage of Statutory Provision Tolling Running of Limitations Period on Basis of Mental Disability. 23 A.L.R.6th 697.

Law Reviews.

Summary of North Dakota Supreme Court Decisions on Civil Procedure — Limitations of Actions, 71 N.D. L. Rev. 841 (1995).

Applicability.

Because a creditor’s claim for tort damages can be filed in a probate proceeding under Title 30.1, the death of a potential defendant before the period of the statute of limitations has run on a tort claim does not make § 28-01-16 ineffective, and this section does not apply. Ness v. Stirling (In re Estate of Stirling), 537 N.W.2d 554, 1995 N.D. LEXIS 177 (N.D. 1995), overruled in part, Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, 2013 N.D. LEXIS 85 (N.D. 2013).

Survival Action.

The statute of limitations that applies to an action which a person is entitled to bring also applies to that action when it is brought as a survival action by his representative upon his death; if, however, the applicable statute of limitations period expires subsequent to and within one year from the person’s death, his representative may commence the action, pursuant to this section, at any time within one year from the date of death. Hulne v. International Harvester Co., 322 N.W.2d 474, 1982 N.D. LEXIS 365 (N.D. 1982).

Collateral References.

Limitations extended by illness or death of party, counsel, or witness, 80 A.L.R.2d 1399.

Death before accrual of cause of action of one in whose favor it would have accrued, as affecting running of limitation, 28 A.L.R.3d 1141.

Attorney malpractice — Tolling or other exceptions to running of statute of limitations, 87 A.L.R.5th 473.

Abatement of Actions.

The only actions or causes of action that are extinguished by the death of a party are those specifically enumerated in this section. Missouri Slope Livestock Auction v. Wachter, 113 N.W.2d 222, 1962 N.D. LEXIS 57 (N.D. 1962), overruled in part, Investors Title Ins. Co. v. Herzig, 2010 ND 138, 785 N.W.2d 863, 2010 N.D. LEXIS 131 (N.D. 2010).

Action Against Estate.

Survival action was barred by N.D.C.C. § 30.1-19-03(1)(a) because the representative did not file her claim with the estate until after the three months allowed for filing claims under the statute had expired. Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, 2013 N.D. LEXIS 85 (N.D. 2013).

Action by Husband.

Victim’s husband should have been permitted to maintain survival action. Kenna v. So-Fro Fabrics, 18 F.3d 623, 1994 U.S. App. LEXIS 4444 (8th Cir. N.D. 1994).

Actions Incidental to Divorce.

Because marriage was dissolved by death and not by divorce, the trial court did not err when it held that there was no longer a marriage to be dissolved and, therefore, no issue of property distribution remaining before the court. Thorson v. Thorson, 541 N.W.2d 692, 1996 N.D. LEXIS 2 (N.D. 1996).

Appellate Proceedings.

The death of a party after judgment does not abate the action and notice of appeal may be served on the personal representatives of the deceased and such personal representatives are parties to the appeal although their names do not appear in the record. Higgins v. Hawks, 122 N.W.2d 129, 1963 N.D. LEXIS 86, 1963 N.D. LEXIS 87 (N.D. 1963).

Automobile Accident.

An action by a husband for injuries suffered in an automobile accident did not abate by the death of the husband and the administrator of his estate, his widow, was properly substituted as plaintiff. Marsden v. O'Callaghan, 77 N.W.2d 531, 1956 N.D. LEXIS 129 (N.D. 1956).

Statute of Limitations.

The statute of limitations that applies to an action which a person is entitled to bring also applies to that action when it is brought as a survival action by his representative upon his death; if, however, the applicable statute of limitations period expires subsequent to and within one year from the person’s death, his representative may commence the action, pursuant to N.D.C.C. § 28-01-26, at any time within one year from the date of death. Hulne v. International Harvester Co., 322 N.W.2d 474, 1982 N.D. LEXIS 365 (N.D. 1982).

Collateral References.

Liability for additions to deficiencies for fraud, imposed by income tax laws, as surviving taxpayer’s death, 15 A.L.R.2d 1036.

Medical malpractice action as abating upon death of either party, 50 A.L.R.2d 1445.

Death as terminating 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.

Abatement or survival of action for attorney’s malpractice or negligence upon death of either party, 65 A.L.R.2d 1211.

Death of putative father as precluding action for determination of paternity or for child support, 58 A.L.R.3d 188.

Effect of death of beneficiary upon right of action under death statute, 13 A.L.R.4th 1060.

Defamation action as surviving plaintiff’s death, under statute not specifically covering action, 42 A.L.R.4th 272.

Effect of death of beneficiary, following wrongful death, upon damages, 73 A.L.R.4th 441.

Application.

The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents, 20 U.S.T. 361, authorizes service by methods that do not involve the Dutch central authority, and the plaintiff could have used one of those methods instead of attempting service through the central authority; the Hague Convention was therefore not a statutory prohibition that could prevent plaintiff purchaser in a products liability suit from timely commencement of an action and this section was not applicable. Paracelsus Healthcare Corp. v. Philips Med. Sys., 2003 U.S. Dist. LEXIS 11155 (D.N.D. June 27, 2003).

In a diversity action brought in district court, a healthcare corporation attempted to complete service of process on a Dutch medical corporation by serving the central authority, but under the plain language of N.D.C.C. § 28-01-38, which applied, the central authority was not the equivalent of a sheriff or county officer, and the action had not commenced. Moreover, the service on the central authority did not toll the statute of limitations; the corporation failed to pursue other alternatives available under The Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, T.I.A.S. No. 6638. Paracelsus Healthcare Corp. v. Philips Med. Sys., 384 F.3d 492, 2004 U.S. App. LEXIS 15911 (8th Cir. N.D. 2004).

Consent to Sue.

An action on a judgment is not stayed during the time that the judgment creditor is required to obtain leave to sue. Osborne v. Lindstrom, 9 N.D. 1, 81 N.W. 72, 1899 N.D. LEXIS 145 (N.D. 1899).

Death of Tort-feasor.

Section 30.1-12-04 does not prohibit enforcement of a tort claim and toll the running of the statute of limitations, but simply annexes the condition that a personal representative of decedent tort-feasor be appointed. Ness v. Stirling (In re Estate of Stirling), 537 N.W.2d 554, 1995 N.D. LEXIS 177 (N.D. 1995), overruled in part, Olson v. Estate of Rustad, 2013 ND 83, 831 N.W.2d 369, 2013 N.D. LEXIS 85 (N.D. 2013).

Applicability.

This section applies to both residents and nonresidents. Loken v. Magrum, 380 N.W.2d 336, 1986 N.D. LEXIS 244 (N.D. 1986).

Application of 1989 Amendment.

Because the North Dakota legislature did not specifically state that the 1989 amendment should apply retroactively, the district court correctly applied the tolling statute as it existed before it was amended in 1989 to the case at bar. Bottineau Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064, 1992 U.S. App. LEXIS 9578 (8th Cir. N.D. 1992).

Availability of Long-Arm Service of Process.

Availability of long-arm service of process pursuant to N.D.R.Civ.P., Rule 4 does not supersede the tolling of statutes of limitation during a defendant’s absence from the state; N.D.R.Civ.P., Rule 4 did not impliedly repeal this section. Walsvik v. Brandel, 298 N.W.2d 375, 1980 N.D. LEXIS 301 (N.D. 1980).

Because defamation claims arising from statements made on a website were actionable in 1998, the single publication rule applied to the website, and there were no material modifications after 1998, the defamation claims filed in 2003 were barred by the two-year statute of limitations under N.D.C.C. § 28-01-18(1). Even though defendants were out of the country, the tolling provisions of N.D.C.C. § 28-01-32 did not apply because defendants were within the court’s long-arm jurisdiction. Atkinson v. McLaughlin, 462 F. Supp. 2d 1038, 2006 U.S. Dist. LEXIS 86405 (D.N.D. 2006).

Constitutionality of Former Section.

The North Dakota tolling statute, as it existed before amendment in 1989, violated the Commerce Clause. The statute placed a significant burden on interstate commerce because it forced a nonresident defendant to choose between being physically present in the state for the limitations period or forfeiting the statute of limitations defense. Bottineau Farmers Elevator v. Woodward-Clyde Consultants, 963 F.2d 1064, 1992 U.S. App. LEXIS 9578 (8th Cir. N.D. 1992).

Foreclosure of Mortgages.

The statute applies to an action to foreclose a real estate mortgage. Colonial & United States Mtg. Co. v. Northwest Thresher Co., 14 N.D. 147, 103 N.W. 915, 70 L.R.A. 814, 116 Am. St. Rep. 642, 8 Am. Ann. Cas. 1160 (1905), decided prior to the enactment of Chapter 5, p. 9, of the 1905 Laws; Colonial & United States Mortgage Co. v. Flemington, 14 N.D. 181, 103 N.W. 929, 1905 N.D. LEXIS 48 (N.D. 1905).

The statute does not apply to an action for the foreclosure of a mortgage accruing prior to the enactment of the statute. Adams & Freese Co. v. Kenoyer, 17 N.D. 302, 116 N.W. 98, 1908 N.D. LEXIS 49 (N.D. 1908); A. D. Clarke & Co. v. Doyle, 17 N.D. 340, 116 N.W. 348, 1908 N.D. LEXIS 58 (N.D. 1908).

Judgments.

A judgment cannot be properly enforced by execution issued after the expiration of ten years following its entry. Weisbecker v. Cahn, 14 N.D. 390, 104 N.W. 513, 1905 N.D. LEXIS 54 (N.D. 1905).

An action for the renewal of a domestic judgment for money, held by plaintiff against defendant, who has been absent from the state during the ten-year period of limitation, may be brought after ten years have elapsed. Union Nat'l Bank v. Ryan, 23 N.D. 482, 137 N.W. 449, 1912 N.D. LEXIS 114 (N.D. 1912).

Loans.

This section applies to an action brought in the state for money loaned to one while a resident of this state, even though the debtor has resided outside of the state for more than six years. Pratt v. Pratt, 29 N.D. 531, 151 N.W. 294, 1915 N.D. LEXIS 27 (N.D. 1915).

Military Service.

Plaintiff’s absence from the state does not of itself toll the statute of limitations. Kosel v. First Nat'l Bank, 55 N.D. 445, 214 N.W. 249, 1927 N.D. LEXIS 58 (N.D. 1927).

Nonresident Motorists.

An irreconcilable conflict between the provisions for substituted service of process on a nonresident motorist and tolling the statute of limitations has not been established. Loken v. Magrum, 380 N.W.2d 336, 1986 N.D. LEXIS 244 (N.D. 1986).

North Dakota’s legislature has not specifically provided an exception to the tolling statute because of substituted service of process on a nonresident motorist. Loken v. Magrum, 380 N.W.2d 336, 1986 N.D. LEXIS 244 (N.D. 1986).

The legislature has not expressly provided for an exception for tolling the statute of limitations in this section, and such an exception is not reflected in N.D.C.C. §§ 39-01-11 and 39-01-12. Loken v. Magrum, 380 N.W.2d 336, 1986 N.D. LEXIS 244 (N.D. 1986).

Service by Publication.

Because plaintiff’s claim against defendant arose as a tort, service by publication was a permissible means to effectuate service of process and the courts of North Dakota had jurisdiction over defendant even in her absence from the state. Therefore, this section did not toll the six-year statute of limitations and plaintiff’s action was properly dismissed by the district court with prejudice. Lupo v. McNeeley, 2019 ND 104, 925 N.W.2d 457, 2019 N.D. LEXIS 108 (N.D. 2019).

Collateral References.

Provision of statute of limitations excluding period of defendant’s absence from state as applicable to a local cause of action against individual who was a nonresident when the same arose, 17 A.L.R.2d 502.

Absence of judgment debtor from state as suspending or tolling running of period of limitations as to judgment, 27 A.L.R.2d 839.

Statute of limitation in illegitimacy proceedings, 59 A.L.R.3d 685.

Absence of Judgment Debtor.

Under the statute, the absence of the judgment debtor from the state tolls the statute of limitations and, though dormant so far as it relates to liens and for the purposes of executions, it is not dead, and will support an action against the judgment debtor after ten years have elapsed. Union Nat'l Bank v. Ryan, 23 N.D. 482, 137 N.W. 449, 1912 N.D. LEXIS 114 (N.D. 1912).

Nunc Pro Tunc.

A cause of action cannot be created or caused to accrue nunc pro tunc. Osborne v. Lindstrom, 9 N.D. 1, 81 N.W. 72, 1899 N.D. LEXIS 145 (N.D. 1899).

Acknowledgment.

To allow an oral acknowledgment or promise to toll the statute of limitations would render the “writing signed by the party to be charged” phrase of this section meaningless; thus, this section requires a written acknowledgment or promise of a new or continuing contract for purposes of tolling the statute of limitations. Kadrmas, Lee & Jackson, P.C. v. Bolken, 508 N.W.2d 341, 1993 N.D. LEXIS 210 (N.D. 1993).

Balance Due on Account.

Where there was no mutual oral agreement established either by customer’s failure to object to bills sent or by written acknowledgment of balance due, as required by this section, limitation of time for bringing action to recover balance due on account was not extended. Hansen v. Fettig, 179 N.W.2d 739, 1970 N.D. LEXIS 134 (N.D. 1970).

Joint Debt.

A payment by one joint debtor does not interrupt the running of the statute as against another joint debtor. Grovenor v. Signor, 10 N.D. 503, 88 N.W. 278, 1901 N.D. LEXIS 66 (N.D. 1901).

A partial payment of a joint or joint and several obligation tolls the limitations as to the obligor requesting or directing payment. Roles v. Roles, 58 N.D. 310, 225 N.W. 809, 1929 N.D. LEXIS 211 (N.D. 1929).

The running of limitations in favor of one of the makers of a joint and several note is not suspended by a payment by the other. Langlie v. Loge, 59 N.D. 399, 230 N.W. 211, 1930 N.D. LEXIS 155 (N.D. 1930).

Mortgage.

Where the payments are made on a mortgage debt from time to time after the due date of the mortgage, the life of the debt is continued thereby. Magnuson v. Breher, 69 N.D. 197, 284 N.W. 853, 1939 N.D. LEXIS 141 (N.D. 1939).

Note Secured by Mortgage.

Partial payments on a note secured by a real estate mortgage, which extend the right of action upon the note, also extend the right of action upon the mortgage. Hansen v. Branner, 52 N.D. 892, 204 N.W. 856, 1925 N.D. LEXIS 156 (N.D. 1925).

Partial Payments.

Partial payments that are voluntary, free from uncertainty as to the identity of the debt, and made and accepted as partial payment of the larger debt under circumstances consistent with an intent to pay the entire debt, toll the statute of limitations for the entire debt. Kadrmas, Lee & Jackson, P.C. v. Bolken, 508 N.W.2d 341, 1993 N.D. LEXIS 210 (N.D. 1993).

Renewal Note.

The execution of a renewal note is an acknowledgment of the debt within the meaning of the statute so as to take action on the note out of the operation of the six-year limitation statute, where the action was brought within six years from the time the renewal note was due. Hoffman v. Ness, 71 N.D. 283, 300 N.W. 428, 1941 N.D. LEXIS 168 (N.D. 1941).

An action on a promissory note was barred by statute of limitations where holder relied upon a written acknowledgment or promise to pay the debt which showed that the debtor was unable to pay, and merely intimated that he might pay or renew the debt if certain conditions were fulfilled. Huus v. Huus, 75 N.D. 392, 28 N.W.2d 385, 1947 N.D. LEXIS 75 (N.D. 1947).

Renewal note executed by debtor sufficiently recognized the debt to avoid the operation of the statute of limitations. Pear v. Grand Forks Motel Assocs., 553 N.W.2d 774, 1996 N.D. LEXIS 222 (N.D. 1996).

Statute of Limitations not Tolled.

Allowance of the wife’s claim against the estate for a promissory note was reversed because there was no evidence of a promise to extend the time for payment, or to forebear suit under the promissory note, much less a written promise or acknowledgment to extend the statute of limitations, and the wife had cited no authority to support her assertion that the statute of limitations was tolled by her forbearance during the couple’s marriage; the promissory note was executed in March 1980 and stated it was due in March 1985, the decedent died in June 2004, and the decedent had not made any payments on the note when he died in 2004. Sorenson v. Sorenson (In re Estate of Sorenson), 2006 ND 145, 717 N.W.2d 535, 2006 N.D. LEXIS 136 (N.D. 2006).

Collateral References.

Acknowledgment or promise to pay judgment as affecting running of statute of limitations, 45 A.L.R.2d 967.

Necessity of written acknowledgment or new promise affecting running of limitations on account stated, 51 A.L.R.2d 331.

Law Reviews.

The Statute of Frauds Restatement with North Dakota Annotations, 2 Dak. L. Rev. 373 (1929); 3 Dak. L. Rev. 119 (1930).

Mutual Account.

Implement dealer’s account for goods and services to customer that consisted of charges on one side and payments on the other was open account, but not mutual account, and this section did not apply in determining when cause of action to recover balance due had accrued. Hansen v. Fettig, 179 N.W.2d 739, 1970 N.D. LEXIS 134 (N.D. 1970).

Trial court did not err in dismissing claim as barred by the six-year statute of limitations under N.D.C.C. § 28-01-16(1), because retrospective premium adjustment for workers compensation insurance was not a mutual, open account as defined by this section but was expected to be settled annually after calculations were completed. American Ins. Co. v. Midwest Motor Express, 554 N.W.2d 182, 1996 N.D. LEXIS 218 (N.D. 1996).

Mutual, Open and Current Account.

This section is applicable in determining when a cause of action accrues for recovery of the balance due upon a mutual, open and current account. Sheyenne Valley Lumber Co. v. Nokleberg, 319 N.W.2d 120, 1982 N.D. LEXIS 248 (N.D. 1982).

Collateral References.

When statute of limitations begins to run on account stated, 51 A.L.R.2d 331.

When statute of limitations begins to run against action by attorney for compensation for services, where charges are made in open or stated accounts, 60 A.L.R.2d 1008.

Causes of action governed by limitations period in UCC § 2-725, 49 A.L.R.5th 1.

Corporate Defendant.

Action was not commenced under this section where summons was delivered to sheriff in county where corporate defendant ceased to maintain an office and person served was neither agent nor officer of the corporation. Sylling v. Agsco Distribs., 171 N.W.2d 825, 1969 N.D. LEXIS 78 (N.D. 1969).

Election Contest.

The district court erred in holding as a matter of law that this section did not apply to commencement of an action to contest school district mill levy election. Elliot v. Drayton Pub. Sch. Dist., 406 N.W.2d 655, 1987 N.D. LEXIS 319 (N.D. 1987).

Where the contestants’ attorney gave the papers to the sheriff’s office on the fourteenth day, the attorney’s actions throughout that day demonstrated a faithful and diligent effort to procure service on the contestees, a named contestee was timely served and the action was timely filed, and after filing and delivery to the sheriff’s office during the last hour of the business day, service was promptly completed the next morning, the contestants delivered the papers to the sheriff’s office with a bona fide intent that they be served as soon as reasonably possible in compliance with this section. Accordingly, the contestants’ election contest should not have been dismissed, for failure to commence the action within 14 days under N.D.C.C. § 16.1-16-04. Elliot v. Drayton Pub. Sch. Dist., 406 N.W.2d 655, 1987 N.D. LEXIS 319 (N.D. 1987).

Endorsement of Summons.

An endorsement stamped on the back of a summons and a complaint showing the time of filing is sufficient evidence of the time of commencing the action. 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).

Foreclosure of Liens.

The statute of limitations did not commence to run in proceedings to have mortgages, mechanics’ liens, and taxes which were at a prior time valid and subsisting liens against land and paid by plaintiff purchaser, declared to be liens upon such premises, until such action was terminated and final judgment entered therein. Donovan v. Dickson, 37 N.D. 404, 164 N.W. 27, 1917 N.D. LEXIS 114 (N.D. 1917).

Issuance of Summons.

A summons is issued when it is duly drawn and signed with the intention that it be served, even though it yet remains in the hands of the plaintiff’s attorneys. Smith v. Nicholson, 5 N.D. 426, 67 N.W. 296, 1896 N.D. LEXIS 43 (N.D. 1896).

Publication of Summons.

The requirement that a summons be published against a defendant within sixty days after its delivery and service is applicable to a garnishment proceeding. Citizens' State Bank v. Smeland, 48 N.D. 466, 184 N.W. 987, 1921 N.D. LEXIS 65 (N.D. 1921).

Service of Summons.

An action is deemed commenced by the service of a summons. Smith v. Nicholson, 5 N.D. 426, 67 N.W. 296, 1896 N.D. LEXIS 43 (N.D. 1896).

Summary judgment was properly awarded to doctors on parents’ wrongful birth claim because even if the claim was not barred by North Dakota law, it was barred by the two-year statute of limitations for medical malpractice actions; the summons and complaint were not served on the doctors until May 5, 2009, which was more than two years after the child’s birth on April 12, 2007. B.D.H. v. Mickelson, 2010 ND 235, 792 N.W.2d 169, 2010 N.D. LEXIS 238 (N.D. 2010).

District court properly granted a motion to dismiss based on lack of jurisdiction where although plaintiff had mailed a summons to the sheriff’s department within the statute of limitations, the documents were not in the sheriff department’s possession until after the statute of limitations expired, and mailing to the sheriff’s department fell short of the N.D.C.C. § 28-01-38 requirement for an attempt. Hughes v. Olheiser Masonry, Inc., 2019 ND 273, 935 N.W.2d 530, 2019 N.D. LEXIS 273 (N.D. 2019).

Service Upon Foreign Corporation.

Purchaser’s products liability suit against Dutch corporation was untimely because transmission of the summons to the Dutch central authority did not commence the action as contemplated by this section; the court would not equate the central authority to a sheriff or county officer. Paracelsus Healthcare Corp. v. Philips Med. Sys., 2003 U.S. Dist. LEXIS 11155 (D.N.D. June 27, 2003).

In a diversity action brought in district court, a healthcare corporation attempted to complete service of process on a Dutch medical corporation by serving the central authority, but under the plain language of N.D.C.C. § 28-01-38, which applied, the central authority was not the equivalent of a sheriff or county officer, and the action had not commenced. Paracelsus Healthcare Corp. v. Philips Med. Sys., 384 F.3d 492, 2004 U.S. App. LEXIS 15911 (8th Cir. N.D. 2004).

Statute of Limitations.

The six-year statute of limitations commences to run on a mutual account from the date of the last item proved in the account on either side. State ex rel. State Hosp. v. Hintz, 281 N.W.2d 564, 1979 N.D. LEXIS 273 (N.D. 1979).

Wrongful death action based on medical malpractice against a referring physician was not barred by the two-year statute of limitations where the evidence showed that plaintiff had complied with the requirements of N.D.C.C. § 28-01-38; the summons and complaint were delivered to the sheriff’s office in the physician’s county of residence for service on the day the statute of limitations expired. Long v. Jaszczak, 2004 ND 194, 688 N.W.2d 173, 2004 N.D. LEXIS 324 (N.D. 2004).

Insurance company, limited partnership, and rental company’s action for negligence and strict liability was timely filed where they faxed the summons and complaint to the relevant sheriff’s office within six years of the action accruing, and where they met the requirement of N.D.C.C. § 28-01-38 that they intended those documents to be served on the elevator company that they were suing. Under that statute, the sheriff was authorized to serve that process and it did not matter that the service occurred in Wisconsin where the elevator company was located, as the service was made in accordance with N.D.R.Civ.P. 4(d)(1) allowing service to be made outside the state so long as that service complied with service as if it was being made in North Dakota. Am. Family Ins. & Prairie W. Apts. I, L.P. v. Waupaca Elevator Co., 2012 ND 13, 809 N.W.2d 337, 2012 N.D. LEXIS 13 (N.D. 2012).

“United in Interest” Construed.

Two parties are “united in interest” under this section when they are in such relation to each other with regard to the subject matter of the plaintiff’s action that they necessarily stand or fall together, a judgment against one will necessarily result in liability upon the other, and neither can reasonably raise a defense which is unavailable to the other. Gessner v. City of Minot, 1998 ND 157, 583 N.W.2d 90, 1998 N.D. LEXIS 157 (N.D. 1998).

Where first driver of snowmobile sued two other snowmobile drivers for negligence, the first driver failed to allege any facts that demonstrated that the other two drivers were united in interest within the meaning of this section, and the statutory definition of when an action was commenced did not preclude summary judgment for the second driver. Kimball v. Landeis, 2002 ND 162, 652 N.W.2d 330, 2002 N.D. LEXIS 209 (N.D. 2002).

Collateral References.

Process served after expiration of limitation period, tolling of statute, 27 A.L.R.2d 236.

Law Reviews.

The Proposed North Dakota Rules of Civil Procedure, 32 N.D. L. Rev. 88 (1956).

Counties and School Districts.

Counties and school districts are subject to statutes of limitations. Rosedale Sch. Dist. v. Towner County, 56 N.D. 41, 216 N.W. 212, 1927 N.D. LEXIS 70 (N.D. 1927).

Nonclaim Statute.

The statute providing that if suit is not brought on a rejected claim against a decedent’s estate, within the time fixed, the claim is barred forever, declares a statute of nonclaim, and such statute is not affected by the general statute of limitations. Mann v. Redmon, 23 N.D. 508, 137 N.W. 478, 1912 N.D. LEXIS 118 (N.D. 1912).

Pleading in Answer.

The statute of limitations must be pleaded in an answer and cannot be raised by demurrer, though it is apparent on the face of the complaint. Shane v. Peoples, 25 N.D. 188, 141 N.W. 737, 1913 N.D. LEXIS 117 (N.D. 1913), distinguished, Darling & Co. v. Burchard, 69 N.D. 212, 284 N.W. 856, 1939 N.D. LEXIS 144 (N.D. 1939); Chicago & N.W. Ry. v. Nepstad, 49 N.D. 221, 190 N.W. 1009, 1922 N.D. LEXIS 43 (N.D. 1922); Hagen v. Altman, 79 N.W.2d 53, 1956 N.D. LEXIS 151 (N.D. 1956).

The defense of limitations cannot be raised by demurrer in a suit to have conveyances set aside upon the ground that they were fraudulent as to creditors, though the fact that the statutory period has elapsed appears on the face of the complaint. Gilbertson v. Volden, 71 N.D. 192, 299 N.W. 250, 1941 N.D. LEXIS 152 (N.D. 1941).

Waiver.

The defense of the limitation of an action is waived if not pleaded in the answer, and the facts constituting the bar must be alleged. Satterlund v. Beal, 12 N.D. 122, 95 N.W. 518, 1903 N.D. LEXIS 19 (N.D. 1903), distinguished, Starke v. Stewart, 33 N.D. 359, 157 N.W. 302, 1916 N.D. LEXIS 98 (N.D. 1916); Lincoln Nat'l Life Ins. Co. v. Kelly, 73 N.D. 622, 17 N.W.2d 906, 1945 N.D. LEXIS 77 (N.D. 1945).

Action Accrual.

Statute of limitations exception, N.D.C.C. § 47-19.1-11, in the Marketable Record Title Act, N.D.C.C. § 47-19.1-01, did not operate to bar the opposing parties’ claims to land that the claimant asserted the claimant owned, as the exception permitted the opposing parties to challenge the claimant’s action based on a contract for the sale of lands in a case where the claimant asserted ownership based on an allegedly unbroken claim of title to an interest in land and possession of land. As a result, the opposing parties could challenge the claimant’s right to ownership of the land under N.D.C.C. § 28-01-15(2), and could prevail because the record showed that the claimant had not filed a claim for ownership to the land within 10 years of the due date of the last payment on the indebtedness, as was required by N.D.C.C. § 28-01-42. Locken v. Locken, 2011 ND 90, 797 N.W.2d 301, 2011 N.D. LEXIS 88 (N.D. 2011).

Extension of 20-Year Period.

Under this statute an action to cancel a contract for deed must be brought within 20 years from the date of the contract. However, if less than 10 years have elapsed from the due date of the last payment, the accrual of the right of action, or the expiration of the maturity date on the instrument or debt, then the action to cancel may be brought more than 20 years from the date of the contract. State v. Potter, 452 N.W.2d 71, 1990 N.D. LEXIS 38 (N.D. 1990).

Collateral References.

Vendor’s obligation to disclose to purchaser to land presence of contamination from hazardous substances or wastes, 12 A.L.R.5th 630.

Law Reviews.

North Dakota Supreme Court Review (Locken v. Locken),see 87 N.D. L. Rev. 419 (2011).

Constitutionality.

Disparate treatment under this section of persons who furnish the design, planning, supervision or construction of an improvement on one hand, and material suppliers or owners of an improvement on the other, did not contravene Art. I, § 21, N.D. Const., where differences in control of property made the classifications reasonable. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

This section does not relate only to particular persons or things of a class. It operates alike on all persons and property similarly situated. Reasonable classification does not violate Art. IV, § 13, N.D. Const. The classifications made by this section have not been shown to be unreasonable and do not violate the “special law” provisions of N.D. Const., Art. IV, § 13. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

Grain Bin.

It was unnecessary to define the term “improvement to real property” because only one conclusion — that the grain bin was an improvement to real property — could reasonably be drawn, where the bin was a 10,000-bushel bin anchored to a cement slab by bolts, with a perforated floor nine inches above the cement slab upon which the bin rested, part of a grain-handling system which also consisted of two additional 10,000-bushel bins, a 3,500-bushel overhead bin, two hopper bins, and a leg, and since the bin was erected in 1967, the owner had never moved it or removed any of the anchors. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

Legislative Intention.

In enacting this section the Legislature’s intention was to limit what would otherwise be virtually unlimited and perpetual exposure to liability for persons engaged in the design, planning, supervision or observation of construction or construction of improvements to real property without eliminating liability entirely by affording a reasonable period within which defects might be manifested and suits brought for injuries caused by defects. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

There is a close correspondence between the statutory classification of persons injured within 10 years after substantial completion and persons injured more than 10 years after substantial completion and the legislative goals. That classification, therefore, does not violate Art. I, § 21, N.D. Const.Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

This section was intended to protect architects, contractors, and engineers, but not materialmen, manufacturers, or suppliers of products used in an improvement to real property. Blikre v. AC and S, Inc., 1999 ND 96, 593 N.W.2d 775, 1999 N.D. LEXIS 89 (N.D. 1999).

Manufacturers of Building Materials.

This section does not apply to a manufacturer of building materials used in an improvement to real property. Hebron Pub. Sch. Dist. No. 13 v. United States Gypsum Co., 475 N.W.2d 120, 1991 N.D. LEXIS 163 (N.D. 1991).

Designer and manufacturer of asbestos-containing acoustical ceiling plaster was not protected by the statute of repose applicable to claims involving improvements to real property. Hebron Public School Dist. No. 13 v. U.S. Gypsum, 953 F.2d 398, 1992 U.S. App. LEXIS 161 (8th Cir. N.D. 1992).

This section does not apply to products liability claims arising out of exposure, during construction, to an allegedly dangerous defective product. Blikre v. AC and S, Inc., 1999 ND 96, 593 N.W.2d 775, 1999 N.D. LEXIS 89 (N.D. 1999).

Persons Protected.

This provision does not shield the manufacturers of supplies for builders. Instead, the provision is designed to protect architects and other contractors who submit plans to the consumer. Hebron Public School Dist. v. United States Gypsum Co., 723 F. Supp. 416, 1989 U.S. Dist. LEXIS 12480 (D.N.D. 1989), aff'd, 953 F.2d 398, 1992 U.S. App. LEXIS 161 (8th Cir. N.D. 1992).

Rooftop Furnace.

Where factory designed and manufactured the rooftop furnace, which was an assembly line product placed on the roof of the building, factory was not engaged in performing or furnishing the design, planning, supervision, or observation of construction, or construction of an improvement to real property within the meaning of this section. Vantage, Inc. v. Carrier Corp., 467 N.W.2d 446, 1991 N.D. LEXIS 50 (N.D. 1991).

Standard of Review.

The right to recover for personal injuries is an important substantive right for which the appropriate standard by which to review limiting legislation is the intermediate standard or the close correspondence test. That intermediate standard of review requires a close correspondence between statutory classification and legislative goals. Because the statute of repose contained in this section also affects the right to recover for personal injuries, the Supreme Court will apply the intermediate standard of review. Bellemare v. Gateway Builders, 420 N.W.2d 733, 1988 N.D. LEXIS 51 (N.D. 1988).

Collateral References.

What constitutes “improvement to real property” for purposes of statute of repose or statute of limitations, 122 A.L.R.5th 1.

Law Reviews.

Actions Arising out of Improvements to Real Property: Special Statutes of Limitations, 57 N.D. L. Rev. 7 (1981).

Application.

This section does not have retroactive application to those causes of action which arose before it was enacted. Fortier v. Traynor, 330 N.W.2d 513, 1983 N.D. LEXIS 240 (N.D. 1983).

Trial court erred in entering summary judgment dismissing a wrongful death action against a nursing home for failure to provide an expert opinion within three months to support the allegations of professional negligence; the time limit applies only to actions against a physician, nurse, or hospital. Van Klootwyk v. Baptist Home, Inc., 2003 ND 112, 665 N.W.2d 679, 2003 N.D. LEXIS 126 (N.D. 2003).

District court erred when it applied the 2005 version of N.D.C.C. § 28-01-46 in effect on the commencement date of a patient’s action since the applicable law in malpractice actions was the law in effect when the cause of action arose. Unless the amendments to § 28-01-46 were retroactive, the district court should have used the date the cause of action accrued in its analysis rather than the commencement date of the action, and nothing in the statute suggested the amendments were intended to apply retroactively; because the injury date occurred on February 10, 2004, and the statute was not retroactive, the 1997 version of § 28-01-46 should have been applied. White v. Altru Health Sys., 2008 ND 48, 746 N.W.2d 173, 2008 N.D. LEXIS 56 (N.D. 2008).

Dismissal Improper.

Because the patient and her spouse did not obtain an admissible expert’s opinion as required by this section and the negligent act at issue did not fall within the statute’s obvious occurrence exception, they failed to meet this section’s requirements as a matter of law; however, the patient’s and spouse’s claim for lack of informed consent fell within the statutory exception and the trial court improperly dismissed that claim without a hearing. Holman v. Berglund, 2003 ND 103, 664 N.W.2d 516, 2003 N.D. LEXIS 106 (N.D. 2003).

Under N.D.C.C. § 28-01-46, a plaintiff had to show good cause before the case was dismissed, but because a defendant might file a motion to dismiss well after the 3-month period lapsed, and because the plaintiff had the right to respond to that motion, the latest a plaintiff could show good cause would be in response to the motion to dismiss; thus, a trial court ought not to have dismissed a suit where the plaintiff filed her good cause motion after the defendants moved to dismiss more than 3 months subsequent to the commencement of the suit. Scheer v. Altru Health Sys., 2007 ND 104, 734 N.W.2d 778, 2007 N.D. LEXIS 92 (N.D. 2007).

Supreme court exercised its supervisory jurisdiction because the district court’s decision denying the motion to dismiss filed by a doctor and a medical practice was contrary to N.D.C.C. § 28-01-46 and the supreme court’s precedent. Pierce v. Anderson, 2018 ND 131, 912 N.W.2d 291, 2018 N.D. LEXIS 137 (N.D. 2018).

Dismissal of malpractice claim was inappropriate because the affidavit of a doctor served the purpose of ensuring that the claim was not frivolous or unsupported as it was inferable that the doctor’s opinion on the standard of care was that a physician should have warned a patient that the patient’s vision did not meet the legal standard to drive. The affidavit did not need to state expressly that adequate vision was required to safely drive and that a driver whose vision did not meet legal standards would foreseeably cause driving accidents. Cichos v. Dakota Eye Inst., P.C., 2019 ND 234, 933 N.W.2d 452, 2019 N.D. LEXIS 239 (N.D. 2019).

Dismissal Proper.

District court’s dismissal of medical malpractice action based on plaintiff’s failure to secure an admissible medical opinion supporting his malpractice claim more than three years after filing the action was not error. Larson v. Hetland, 1999 ND 98, 593 N.W.2d 785, 1999 N.D. LEXIS 88 (N.D. 1999).

Where plaintiff failed to file an expert opinion affidavit within the three month period provided for by this section, and also failed to request an extension of time based on “good cause” prior to defendant’s filing a motion to dismiss, District Court did not err in dismissing plaintiff’s case without prejudice. Weasel v. St. Alexius Med. Ctr., 230 F.3d 348, 2000 U.S. App. LEXIS 25481 (8th Cir. N.D. 2000).

When the plaintiff did not file an expert affidavit to support the allegations of professional negligence against defendants within the three-month period or within the extended period under this section, the court granted the defendants’ motion for summary judgment, treating it as a motion to dismiss, because under this section dismissal without prejudice is the appropriate remedy for failure to disclose an expert witness. Schaaf v. Dahl, 2003 U.S. Dist. LEXIS 23452 (D.N.D. Dec. 31, 2003).

Patient’s motion for an extension of time to file an expert report in her medical malpractice action against the United States of America, acting through the Department of Interior, Indian Health Services (IHS), was denied where it was undisputed that the patient: (1) did not file an expert witness affidavit within the three-month period set forth in this section; (2) did not seek to extend the three-month deadline prior to the expiration of the limitations period; and (3) sought an extension only after IHS filed a motion for summary judgment. The patient’s assertion that she had a difficult time communicating with one of her proposed experts who did not return her calls did not excuse the delay of nearly seven months before the patient sought an extension of the expert disclosure period. Vallee v. United States, — F. Supp. 2d —, U.S. Dist. LEXIS (D.N.D. May 21, 2004).

In a medical malpractice case brought under the Federal Tort Claims Act, 28 USCS § 1346, 2671- 2680, North Dakota law applied to the case, even though the injury occurred on an Indian reservation, because a mother failed to show that there was any applicable tribal law; further, a motion for summary judgment filed by several health care providers and the United States was granted because the mother failed to file an expert affidavit within three months of the commencement of the action, no motion for a good cause extension was filed on a timely basis, and the obvious occurrence exception did not apply to a head injury suffered by a child. LaFramboise v. Thompson, 329 F. Supp. 2d 1054, 2004 U.S. Dist. LEXIS 16640 (D.N.D. 2004).

District court did not err in granting defendant physician summary judgment on plaintiff’s medical negligence claim; plaintiff failed to produce expert evidence regarding the applicable standard of care. Johnson v. Bronson, 2013 ND 78, 830 N.W.2d 595, 2013 N.D. LEXIS 81 (N.D. 2013).

District court properly dismissed a patient's medical negligence action against a surgeon because, while her attorney disclosed the existence of an expert witness willing to testify on the patient's behalf in a letter to the surgeon's attorney, the patient failed to serve the surgeon with an affidavit from an expert as required by statute, the injury the patient suffered as a result of the surgeon's alleged negligence did not fall under the “obvious occurrence” exception in the statute where the occurrence that led to the result, not the result itself, had to be obvious, and the technical surgical procedure was beyond the understanding of a layperson. Greene v. Matthys, 2017 ND 107, 893 N.W.2d 179, 2017 N.D. LEXIS 96 (N.D. 2017).

Because the personal representative failed to serve an affidavit containing an admissible expert opinion supporting a prima facie case of professional negligence within three months of the commencement of the medical malpractice action and failed to request an extension of the time period to serve the affidavit within the three months as required by N.D.C.C. § 28-01-46, the action was proper dismissed. Bride v. Trinity Hosp., 2019 ND 131, 927 N.W.2d 416, 2019 N.D. LEXIS 141 (N.D. 2019).

Legislative Intent.

The legislative history of this section does not indicate an intent to limit the requirement of expert witnesses to professional negligence actions involving physicians, nurses, and hospitals, nor does it reveal an intent to expand the definition of “physician”; rather, the legislative history indicates that this section is designed simply to minimize frivolous claims against physicians, nurses, and hospitals. Heimer v. Privratsky, 434 N.W.2d 357, 1989 N.D. LEXIS 18 (N.D. 1989).

Section 28-01-46 minimizes frivolous claims against physicians by avoiding the necessity of a trial or action based upon professional negligence unless the plaintiff obtains an expert opinion to substantiate the allegations of negligence. Vallee v. United States, — F. Supp. 2d —, U.S. Dist. LEXIS (D.N.D. May 21, 2004).

Obvious Occurrence Exception.

The “obvious occurrence” exception to this section applies only to cases that are plainly within the knowledge of a layperson. Larsen v. Zarrett, 498 N.W.2d 191, 1993 N.D. LEXIS 58 (N.D. 1993).

“Obvious occurrence” exception to this section did not apply to a patient’s medical malpractice action, which was based on the failure to properly diagnose her radiculopathy, a tumor in her kidney and gallstones, because the patient’s claims of professional negligence were beyond the understanding of the ordinary layperson. Vallee v. United States, — F. Supp. 2d —, U.S. Dist. LEXIS (D.N.D. May 21, 2004).

Obvious occurrence exception to N.D.C.C. § 28-01-46 did not apply where the bilateral salpingectomy procedure the doctor performed was a technical procedure that required an expert witness to establish the relevant standard of care, and the record did not establish the medical risks, gravity and type of harm associated with the procedure. Cartwright v. Tong, 2017 ND 146, 896 N.W.2d 638, 2017 N.D. LEXIS 147 (N.D. 2017).

Patient did not file an expert witness affidavit within three months of commencing the action, and the district court clearly erred in concluding the obvious occurrence exception applied because the alleged occurrence of professional negligence was not plainly within the knowledge of a layperson; a layperson could not find negligence without the benefit of expert testimony. Pierce v. Anderson, 2018 ND 131, 912 N.W.2d 291, 2018 N.D. LEXIS 137 (N.D. 2018).

District court clearly erred in concluding the obvious occurrence exception within N.D.C.C. § 28-01-46 applied because the alleged professional negligence was not within the knowledge of a layperson; under the rule of ejusdem generis, when the general words were construed to embrace only objects similar in nature to those objects specifically enumerated the occurrence alleged was not like the failure to remove a foreign substance or performance of a medical procedure upon the wrong patient. Pierce v. Anderson, 2018 ND 131, 912 N.W.2d 291, 2018 N.D. LEXIS 137 (N.D. 2018).

Optometrist.

This section is inapplicable in an action against an optometrist for professional negligence. Heimer v. Privratsky, 434 N.W.2d 357, 1989 N.D. LEXIS 18 (N.D. 1989).

Malpractice.

Where there had been no claim that the three-month deadline played any role in a malpractice case where the admissibility of the expert witness’ testimony was challenged, the motion to dismiss must be denied. Morlan v. Harrington, 658 F. Supp. 24, 1986 U.S. Dist. LEXIS 16616 (D.N.D. 1986).

Res Ipsa Loquitur.

Under North Dakota law, res ipsa loquitur is inapplicable to medical malpractice actions unless the breach is so egregious that a layman is capable of comprehending its enormity. Maguire v. Taylor, 940 F.2d 375, 1991 U.S. App. LEXIS 17421 (8th Cir. N.D. 1991).

By enacting this section the legislature has essentially defined the doctrine of res ipsa loquitur for purposes of medical malpractice cases. Larsen v. Zarrett, 498 N.W.2d 191, 1993 N.D. LEXIS 58 (N.D. 1993).

Sufficiency of Opinion.

An expert opinion is not inadmissible because, on deposition examination by opposing counsel, the opinion may be questioned or its weight may be weakened; the statute does not require that the expert opinion be sufficient to sustain a directed verdict or that the matter be tried in the context of the motion to dismiss the action under the statute. Ellefson v. Earnshaw, 499 N.W.2d 112, 1993 N.D. LEXIS 71 (N.D. 1993).

Wrong Organ Exception.

Wrong organ exception to N.D.C.C. § 28-01-46 did not apply where the surgeries at issue required a procedure on the fallopian tubes, and the surgeon performed a procedure on that organ. Cartwright v. Tong, 2017 ND 146, 896 N.W.2d 638, 2017 N.D. LEXIS 147 (N.D. 2017).

Collateral References.

Homicide: physician’s withdrawal of life supports from comatose patient, 47 A.L.R.4th 18.

Medical malpractice: res ipsa loquitur in negligent anesthesia cases, 49 A.L.R.4th 63.

Medical malpractice: hospital’s liability for injury allegedly caused by failure to have properly qualified staff, 62 A.L.R.4th 692.

Legal malpractice in handling or defending medical malpractice claim, 78 A.L.R.4th 725.

Medical malpractice: drug manufacturer’s package insert recommendations as evidence of standard of care, 82 A.L.R.4th 166.

Liability of hospital, physician, or other medical personnel for death or injury from use of drugs to stimulate labor, 1 A.L.R.5th 243.

Hospital’s liability for injury resulting from failure to have sufficient number of nurses on duty, 2 A.L.R.5th 286.

Medical malpractice: who are “health care providers,” or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 A.L.R.5th 1.

Law Reviews.

North Dakota Supreme Court Review, 78 N.D. L. Rev. 579 (2002).

North Dakota Supreme Court Review (Scheer v. Altru Health System, 2007 ND 104, 734 N.W.2d 778 (2007)), see 84 N.D. L. Rev. 567 (2008).

Statute of Limitations.

Under the Uniform Conflict of Laws-Limitation Act courts will apply the statute of limitations of the state which governs the substantive issues. The Act also is significant in another respect. One of the factors looked at when determining whether to certify an issue is whether it is likely to recur. Perkins v. Clark Equipment Co., Melrose Div., 823 F.2d 207, 1987 U.S. App. LEXIS 8873 (8th Cir. N.D. 1987).

Law Reviews.

North Dakota Choice of Law in Tort and Contract Actions: A Summary of Cases and a Critique, 71 N.D. L. Rev. 721 (1995).

Comparative Legislation.

Jurisdictions which have enacted the Uniform Conflict of Laws — Limitations Act include:

Colo. Rev. Stat. §§ 13-82-101 to 13-82-107.

Wash. Rev. Code §§ 4.18.010 to 4.18.904.

Burden of Proof.

Because plaintiffs, who brought asbestos-related product liability actions, failed to present any evidence demonstrating that they were not afforded a fair opportunity to sue upon their claims by other states’ limitation periods, plaintiffs failed to raise a genuine issue of material fact on an issue upon which they bore the burden of proof, and summary judgment against plaintiffs was appropriate. Vicknair v. Phelps Dodge Indus., 2011 ND 39, 794 N.W.2d 746, 2011 N.D. LEXIS 39 (N.D. 2011).

Burden of Proof.

Although plaintiffs contended the district court erred in concluding that the escape clause in N.D.C.C. § 28-01.2-04 did not apply, plaintiffs, as the parties urging application of the escape clause, bore the burden of establishing that an exception applied. Because plaintiffs failed to present any evidence demonstrating that they were not afforded a fair opportunity to sue upon their asbestos exposure claims by the other states’ limitation periods, plaintiffs failed to raise a genuine issue of material fact on an issue upon which they bore the burden of proof, and summary judgment against plaintiffs was appropriate. Vicknair v. Phelps Dodge Indus., 2011 ND 39, 794 N.W.2d 746, 2011 N.D. LEXIS 39 (N.D. 2011).

Applicability of Chapter.

When a defective product causes damage to persons or other property, the interests at stake are health and safety which are protected under tort law which allows recovery by injured plaintiffs against a seller or manufacturer of an unreasonably dangerous defective product under this chapter. When, however, a product is defective and damages only itself, the interest at stake is the purchaser’s expectation of receiving the bargained-for product; that interest is protected by the remedies provided under Art. 2 of the Uniform Commercial Code, N.D.C.C. ch. 41-02. Steiner v. Ford Motor Co., 2000 ND 31, 606 N.W.2d 881, 2000 N.D. LEXIS 26 (N.D. 2000).

Economic Loss Doctrine.

Tort actions under the Products Liability Act can be brought when a defective product causes damage to persons or other property, but are not available to any plaintiff when only the defective product itself has been damaged. Clarys v. Ford Motor Co., 1999 ND 72, 592 N.W.2d 573, 1999 N.D. LEXIS 77 (N.D. 1999).

Seller.

Evidence was sufficient to support finding that company which distributed a product was a “seller” where another company manufactured the product, the company never had physical possession of the product, and while design changes were to be authorized by the company, it did little more than place its private label on the product. Winkler v. Gilmore & Tatge Mfg. Co., 334 N.W.2d 837, 1983 N.D. LEXIS 334 (N.D. 1983).

In an action brought by the surviving spouse of a deceased heavy construction equipment operator who was killed when a nine-wheel pneumatic rubber tire roller compactor he was operating rolled over, the court denied summary judgment to the seller and the distributor on the spouse’s strict products liability claim because (1) the distributor had held itself as the manufacturer of the compactor, so it was a manufacturer under N.D.C.C. § 28-01.3-01(1); (2) the seller was not entitled to dismissal under N.D.C.C. § 28-01.3-04 as the non-manufacturing seller of the compactor because there were genuine issues of material fact as to whether the seller’s decision to stock the compactor without a rollover protective structure (ROPS) was an element of its design, whether the seller had actual knowledge of the product defect, and whether it created the defect which caused the death; (3) there was a genuine issue of material fact as to whether the purchaser, the decedent’s employer, was aware of the option to purchase a ROPS and made the conscious decision to not do so; (4) there were genuine issues of material fact as to whether the lack of a ROPS was a defect which rendered the compactor unreasonably dangerous or dangerous to an extent beyond which was contemplated by the ordinary and prudent buyer or user and beyond that contemplated by the purchaser, its employees, or the decedent pursuant to N.D.C.C. §§ 28-01.3-06, 28-01.3-01(4); and (5) the spouse’s expert opined that the decedent’s injuries were proximately caused by the lack of a seat belt and ROPS. Reiss v. Komatsu Am. Corp., 735 F. Supp. 2d 1125, 2010 U.S. Dist. LEXIS 85136 (D.N.D. 2010).

Specificity included in the legislature’s adoption of N.D.C.C. ch. 28-01.3 indicates the clear message that it intended to restrict, rather than expand, the availability of product liability actions as a remedy for personal injury, death or property damage arising out of use of defective products. In a products liability case brought against the seller of a meat grinder, the Supreme Court of North Dakota declined to adopt the “apparent manufacturer” doctrine, because the products liability act curtailed liability of a “nonmanufacturing seller” under N.D.C.C. § 28-01.3-04 and controlled over any conflicting common law doctrine. Bornsen v. Pragotrade, LLC, 2011 ND 183, 804 N.W.2d 55, 2011 N.D. LEXIS 192 (N.D. 2011).

Unreasonably Dangerous.

—Actual Knowledge of Risk.

Cautionary language relied on by manufacturer of handgun did not convey a warning that anything would be “blown back” forcefully enough to cause a serious injury, and the trial court could reasonably find a generic warning from a group of weapon manufacturers of the possibility that a rare rupture could cause objects to be blown back to the shooter’s face would not give plaintiff actual knowledge that this type of accident could occur with the handgun manufactured by defendant. Endresen v. Scheels Hardware & Sports Shop, 1997 ND 38, 560 N.W.2d 225, 1997 N.D. LEXIS 39 (N.D. 1997).

—Particular Cases.

Summary judgment to the manufacturer was appropriate because the consumers failed to present any evidence that the scissors lift was defective in design or manufacture, that any such defect rendered the scissors lift unreasonably dangerous, or that the defect existed when the scissors lift left the manufacturer. Krosch v. JLG Indus., Inc., 590 F. Supp. 2d 1169, 2008 U.S. Dist. LEXIS 102884 (D.N.D. 2008).

Summary judgment to the producer was appropriate where the consumers failed to present any evidence that the level sensor was defective in design or manufacture, that any such defect rendered the product unreasonably dangerous, or that the defect existed when the level sensor left the producer. Krosch v. JLG Indus., Inc., 590 F. Supp. 2d 1169, 2008 U.S. Dist. LEXIS 102884 (D.N.D. 2008).

—Risk-Utility Analysis.

Benefit of the design of a handgun to persons who purchased it for self-protection did not outweigh the risk of danger inherent in the design to persons who purchased and used the same handgun with reloaded ammunition for recreational purposes. Endresen v. Scheels Hardware & Sports Shop, 1997 ND 38, 560 N.W.2d 225, 1997 N.D. LEXIS 39 (N.D. 1997).

Collateral References.

Products liability: inconsistency of verdicts on separate theories of negligence, breach of warranty, or strict liability, 41 A.L.R.4th 9.

Products liability: alcoholic beverages, 42 A.L.R.4th 253.

Products liability: construction materials or insulation containing formaldehyde, 45 A.L.R.4th 751.

Products liability: liability of manufacturer or seller as affected by failure of subsequent party in distribution chain to remedy or warn against defect of which he knew, 45 A.L.R.4th 777.

Products liability: perfumes, colognes, or deodorants, 46 A.L.R.4th 1197.

Products liability: admissibility of defendant’s evidence of industry custom or practice in strict liability action, 47 A.L.R.4th 621.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning athletic, exercise, or recreational equipment, 50 A.L.R.4th 1226.

Products liability: admissibility of evidence of absence of other accidents, 51 A.L.R.4th 1186.

Attorneys’ fees in products liability suits, 53 A.L.R.4th 414.

Res ipsa loquitur, applicability in case of multiple, nonmedical defendants — modern status, 59 A.L.R.4th 201.

Products liability: electricity, 60 A.L.R.4th 732.

Products liability: “fireman’s rule” as defense, 62 A.L.R.4th 727.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning automobiles, boats, aircraft, and other vehicles, 63 A.L.R.4th 18.

Products liability: mascara and other eye cosmetics, 63 A.L.R.4th 105.

Products liability: personal jurisdiction over nonresident manufacturer of component incorporated in another product, 69 A.L.R.4th 14.

Products liability: motor vehicle exhaust systems, 72 A.L.R.4th 62.

Products liability: industrial refrigeration equipment, 72 A.L.R.4th 90.

Forum non conveniens in products liability cases, 76 A.L.R.4th 22.

Products liability: bicycles and accessories, 76 A.L.R.4th 117.

Products liability: trampolines and similar devices, 76 A.L.R.4th 171.

Products liability: competitive sports equipment, 76 A.L.R.4th 201.

Products liability: skiing equipment, 76 A.L.R.4th 256.

Products liability: general recreational equipment, 77 A.L.R.4th 1121.

Products liability: mechanical amusement rides and devices, 77 A.L.R.4th 1152.

Products liability: seller’s right to indemnity from manufacturer, 79 A.L.R.4th 278.

Products liability: all-terrain vehicles (ATV’s), 83 A.L.R.4th 70.

Products liability: hair straighteners and relaxants, 84 A.L.R.4th 1090.

Products liability: cutting or heating torches, 84 A.L.R.4th 1123.

Products liability: defective motor vehicle air bag systems, 39 A.L.R.5th 267.

Products liability: theatrical equipment and props, 42 A.L.R.5th 699.

Products liability: manufacturer’s postsale obligation to modify, repair, or recall product, 47 A.L.R.5th 395.

Products liability: recovery for injury or death resulting from intentional inhalation of product’s fumes or vapors to produce intoxicating or similar effect, 50 A.L.R.5th 275.

The government-contractor defense to state products-liability claims, 53 A.L.R.5th 535.

Construction and application of learned-intermediary doctrine, 57 A.L.R.5th 1.

Products liability: liability for injury or death allegedly caused by defect in mobile home or trailer, 61 A.L.R.5th 473.

Products liability: swimming pools and accessories, 65 A.L.R.5th 105.

Products liability: paints, stains, and similar products, 69 A.L.R.5th 137.

Products liability: helicopters, 72 A.L.R.5th 299.

Products liability: consumer expectations test, 73 A.L.R.5th 75.

Products Liability: Ladders, 81 A.L.R.5th 245.

Products liability: firearms, ammunition, and chemical weapons, 96 A.L.R.5th 239.

Applicability of Insurance Policies to Alleged Bodily Injury Arising from Use of Cellular Telephones, 32 A.L.R.6th 505.

Liability of manufacturer or distributor for injuries arising from allegedly defective artificial knee devices or prostheses, 89 A.L.R.6th 337.

Products liability: pain pumps, 90 A.L.R.6th 75.

Federal preemption of state common-law products liability claims pertaining to medical devices, implants, and other health-related items, 74 A.L.R. Fed. 2d 1.

Law Reviews.

Case Comment: Products Liability — Conflict Preemption:The United States Supreme Court Denies Preemption Defense for Drug Manufacturers Using FDA—Approved Warning Labels Wyeth v. Levine, 129 S. Ct. 1187 (2009), see86 N.D. L. Rev. 405 (2010).

Case Comment: Products Liability—Conflict Preemption: Rewriting the Test For Impossibility: The United States Supreme Court Removes the Protection of The Law for Generic Drug Recipients Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), see87 N.D. L. Rev. 355 (2011).

Conditions on Right of Indemnity.

The statutory indemnification provisions of this Chapter do not require a tender of defense from the seller to the manufacturer as a condition upon the seller’s right of indemnity for reasonable attorneys’ fees and costs incurred by the seller in defending a product liability action. Kaylor v. Iseman Mobile Homes, 369 N.W.2d 101, 1985 N.D. LEXIS 336 (N.D. 1985).

Indemnity of Seller.

Seller is entitled to indemnification only in those cases where the manufacturer is found liable and the seller is absolved of liability by the trier of fact. Winkler v. Gilmore & Tatge Mfg. Co., 334 N.W.2d 837, 1983 N.D. LEXIS 334 (N.D. 1983).

Liberal Construction.

The purpose of this section is to relieve North Dakota retailers of products liability suits to which they are subjected merely because the retailer sold the product, where there is no indication that the retailer is liable. Consequently, the statute should be liberally construed toward accomplishing this objective and promoting justice. Kaylor v. Iseman Mobile Homes, 369 N.W.2d 101, 1985 N.D. LEXIS 336 (N.D. 1985).

Seller Who Is Also a Manufacturer.

This section does not preclude a seller who is also a manufacturer from seeking indemnity from another manufacturer. Winkler v. Gilmore & Tatge Mfg. Co., 334 N.W.2d 837, 1983 N.D. LEXIS 334 (N.D. 1983).

Collateral References.

Products liability: duty of manufacturer or seller of component part incorporated in another product to warn of dangers, 39 A.L.R.4th 6.

Products liability: automobile manufacturer’s liability for injuries caused by repairs made under manufacturer’s warranty, 40 A.L.R.4th 1218.

Comparative Negligence.

The comparative negligence provisions of N.D.C.C. § 9-10-07 are not applicable to a products liability action; however, when the defenses of assumption of risk and unforeseeable misuse are raised in the context of a strict products-liability action, the trier of fact must determine, on a pure comparative-causation basis and not on the modified comparative negligence provisions of N.D.C.C. § 9-10-07, the percent of the injuries proximately caused by the assumption of risk or the unforeseeable misuse and the percent proximately caused by the unreasonably dangerous defect in the product, and the plaintiff’s recovery must be reduced by an amount proportionate to the damage caused by the misuse or assumption of the risk. Thus, plaintiff’s misuse of the product will reduce the recovery by the percentage of damage attributable to the misuse but, even though equal to or greater than the causation attributable to the defective condition of the product, will not act as a total bar to plaintiff’s claim. Mauch v. Mfrs. Sales & Serv., 345 N.W.2d 338, 1984 N.D. LEXIS 245 (N.D. 1984).

While the comparative negligence statute, N.D.C.C. § 9-10-07, does not apply to products liability or strict liability actions, comparative negligence on a pure form basis does apply to such actions; however, until the legislature enacts a law covering the subject, contributing causal negligence or fault shall not bar a recovery in products liability or strict liability actions even though plaintiff’s causal negligence or fault exceeds fifty percent, but the damages shall be diminished in proportion to the amount of plaintiff’s causal negligence or fault. Day v. General Motors Corp., 345 N.W.2d 349, 1984 N.D. LEXIS 244 (N.D. 1984).

Condition at Time of Sale.

Whether a product is defective is determined by its condition at the time it was sold by the manufacturer or other initial seller. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 1994 N.D. LEXIS 199 (N.D. 1994).

Design.

—In General.

Individual was not entitled to recover on her strict liability claims against a sports bra manufacturer where the individual made no showing that (1) the sports bra was defective in design or manufacture, (2) any defect rendered the sports bra unreasonably dangerous to the user, (3) the defect existed when the bra left the manufacturer, or (4) the defect was the proximate cause of the individual’s injuries, and the mere presence of chemicals in the bra, or the fact that such chemicals may have had the potential to cause injury or illness, was not sufficient, by itself, to establish liability or causation. Burgad v. Jack L. Marcus, Inc., 345 F. Supp. 2d 1036, 2004 U.S. Dist. LEXIS 24491 (D.N.D. 2004).

—Standard of Care.

In North Dakota a manufacturer of goods has a duty to use reasonable care in designing its products to protect users against unreasonable risks of harm while putting the product to any foreseeable use. In re North Dakota Personal Injury Asbestos Litigation No. 1, 737 F. Supp. 1087, 1990 U.S. Dist. LEXIS 6048 (D.N.D. 1990).

Jury Instructions.

In products liability action based on theory of strict liability in tort, jury instruction was fatally defective, requiring judgment be vacated, where it failed to apprise jury of factors to be considered in determining if a product is “unreasonably dangerous” and had practical effect of permitting jury to impose liability on a manufacturer upon a finding of defect in product and resultant physical injury during course of ordinary use. Kaufman v. Meditec, Inc., 353 N.W.2d 297, 1984 N.D. LEXIS 343 (N.D. 1984).

Long-Arm Jurisdiction.

For a case applying N.D.R.Civ.P., Rule 4(b) to obtain long-arm jurisdiction over a “civil co-conspirator” of a tort-feasor, see In re North Dakota Personal Injury Asbestos Litigation No. 1, 737 F. Supp. 1087, 1990 U.S. Dist. LEXIS 6048 (D.N.D. 1990).

Negligence of User.

Where the seller of a defective product seeks to avoid liability, not by the manner that the product was used, but by the geographical location where it was used, in a state that has banned its use, that evidence of the statutory ban is irrelevant and inadmissible to show negligence by the users of the product. Horstmeyer v. Golden Eagle Fireworks, 534 N.W.2d 835, 1995 N.D. LEXIS 126 (N.D. 1995).

Standard of Proof.

Under a prior similar provision, a plaintiff could not prevail simply by proving a product’s defect and causation of the injury which the plaintiff had suffered; he or she had to prove that the product was unreasonably dangerous. Reagan v. Hi-Speed Checkweigher Co., 30 F.3d 947, 1994 U.S. App. LEXIS 16750 (8th Cir. N.D. 1994).

Where evidence was insufficient to prove that a baseboard heater was defective at the time the manufacturer sold it, that any purported defect rendered the heater unreasonably dangerous, or that the alleged defect proximately caused the fire which killed a homeowner and destroyed her home, the manufacturer was entitled to judgment as a matter of law on the plaintiff’s claims. Weisgram v. Marley Co., 169 F.3d 514, 1999 U.S. App. LEXIS 2724 (8th Cir. N.D. 1999), cert. dismissed, 528 U.S. 982, 120 S. Ct. 443, 145 L. Ed. 2d 346, 1999 U.S. LEXIS 7380 (U.S. 1999), aff'd, 528 U.S. 440, 120 S. Ct. 1011, 145 L. Ed. 2d 958, 2000 U.S. LEXIS 1011 (U.S. 2000).

Successor Corporation’s Liability.

Corporate cash purchaser of the assets of the corporate manufacturer of the allegedly defective product was not liable to the purchaser of the product under products liability theory merely because the corporate purchaser continued the production of the corporate manufacturer’s product line; and, while a successor corporation may acquire an independent duty to warn of defects in products manufactured by its predecessor where there is a nexus between the successor corporation and the customers of the predecessor corporation sufficient to justify the imposition of liability on the successor corporation for breach of a duty to warn, succession alone does not impose a duty to warn of recently discovered defects. Downtowner, Inc. v. Acrometal Prods., 347 N.W.2d 118, 1984 N.D. LEXIS 266 (N.D. 1984).

Unreasonably Dangerous.

The requirement of unreasonable danger is an integral part of the strict liability in tort doctrine of this state; plaintiff relying upon theory of strict liability in tort cannot prevail simply by proving a product defect and causation of the injury suffered. Wilson v. General Motors Corp., 311 N.W.2d 10, 1981 N.D. LEXIS 380 (N.D. 1981).

Summary judgment to the manufacturer was appropriate because the consumers failed to present any evidence that the scissors lift was defective in design or manufacture, that any such defect rendered the scissors lift unreasonably dangerous, or that the defect existed when the scissors lift left the manufacturer. Krosch v. JLG Indus., Inc., 590 F. Supp. 2d 1169, 2008 U.S. Dist. LEXIS 102884 (D.N.D. 2008).

Summary judgment to the producer was appropriate where the consumers failed to present any evidence that the level sensor was defective in design or manufacture, that any such defect rendered the product unreasonably dangerous, or that the defect existed when the level sensor left the producer. Krosch v. JLG Indus., Inc., 590 F. Supp. 2d 1169, 2008 U.S. Dist. LEXIS 102884 (D.N.D. 2008).

In an action brought by the surviving spouse of a deceased heavy construction equipment operator who was killed when a nine-wheel pneumatic rubber tire roller compactor he was operating rolled over, the court denied summary judgment to the seller and the distributor on the spouse’s strict products liability claim because (1) the distributor had held itself as the manufacturer of the compactor, so it was a manufacturer under N.D.C.C. § 28-01.3-01(1); (2) the seller was not entitled to dismissal under N.D.C.C. § 28-01.3-04 as the non-manufacturing seller of the compactor because there were genuine issues of material fact as to whether the seller’s decision to stock the compactor without a rollover protective structure (ROPS) was an element of its design, whether the seller had actual knowledge of the product defect, and whether it created the defect which caused the death; (3) there was a genuine issue of material fact as to whether the purchaser, the decedent’s employer, was aware of the option to purchase a ROPS and made the conscious decision to not do so; (4) there were genuine issues of material fact as to whether the lack of a ROPS was a defect which rendered the compactor unreasonably dangerous or dangerous to an extent beyond which was contemplated by the ordinary and prudent buyer or user and beyond that contemplated by the purchaser, its employees, or the decedent pursuant to N.D.C.C. §§ 28-01.3-06, 28-01.3-01(4); and (5) the spouse’s expert opined that the decedent’s injuries were proximately caused by the lack of a seat belt and ROPS. Reiss v. Komatsu Am. Corp., 735 F. Supp. 2d 1125, 2010 U.S. Dist. LEXIS 85136 (D.N.D. 2010).

Warnings and Instructions.

The manufacturer of a product can be held liable even though the product itself is not defective or unreasonably dangerous if the injuries were sustained as a result of misuse of the product because the instructions or directions for its use were not adequate or the warnings concerning its use were not properly given; thus, manufacturer’s liability in a products liability action is not necessarily eliminated upon a jury finding that the product was not defective or unreasonably dangerous. Andersen v. Teamsters Local 116 Bldg. Club, 347 N.W.2d 309, 1984 N.D. LEXIS 256 (N.D. 1984).

Manufacturer of a battery-operated smoke detector was not negligent for failing to provide an explicit warning that the detector would not work without a battery. A plain reading of the instructions clearly indicated that the detector would work only with the proper type of battery. Morrison v. Grand Forks Hous. Auth., 436 N.W.2d 221, 1989 N.D. LEXIS 23 (N.D. 1989).

The lack of a warning specifically stating that a battery-operated smoke detector would not work without a battery did not render the detector unreasonably dangerous. Morrison v. Grand Forks Hous. Auth., 436 N.W.2d 221, 1989 N.D. LEXIS 23 (N.D. 1989).

A manufacturer has a duty to give a reasonable warning of dangers inherent or reasonably foreseeable in using the goods in the manner specified. In re North Dakota Personal Injury Asbestos Litigation No. 1, 737 F. Supp. 1087, 1990 U.S. Dist. LEXIS 6048 (D.N.D. 1990).

Warnings to Nonoperator.

Manufacturer was strictly liable to injured plaintiff for failure to warn nonoperating users of a skid steer (power shovel) about the machine’s propensity to tip over when carrying a heavy load. Steffl v. J.I. Case Co., 862 F.2d 692, 1988 U.S. App. LEXIS 16377 (8th Cir. N.D. 1988).

Collateral References.

Products liability: modern cases on explosion or breakage of beverage bottles, 36 A.L.R.4th 419.

Products liability: duty of manufacturer or seller of component part incorporated in another product to warn of dangers, 39 A.L.R.4th 6.

Products liability: inhalation of asbestos, 39 A.L.R.4th 399.

Products liability: alcoholic beverages, 42 A.L.R.4th 253.

Products liability: construction materials or insulation containing formaldehyde, 45 A.L.R.4th 751.

Products liability for personal soaps, 54 A.L.R.4th 574.

Products liability: pertussis vaccine manufacturers, 57 A.L.R.4th 911.

Products liability: electricity, 60 A.L.R.4th 732.

Products liability: mascara and other eye cosmetics, 63 A.L.R.4th 105.

Products liability: admissibility of experimental or test evidence to disprove defect in motor vehicle, 64 A.L.R.4th 125.

Strict products liability: product malfunction or occurrence of accident as evidence of defect, 65 A.L.R.4th 346.

Liability of manufacturer of oral live polio (Sabin) vaccine for injury or death from its administration, 66 A.L.R.4th 83.

Liability for injury incurred in operation of power golf cart, 66 A.L.R.4th 622.

Products liability: what is an “unavoidably unsafe” product, 70 A.L.R.4th 16.

Burden of proving feasibility of alternative safe design in products liability action based on defective design, 78 A.L.R.4th 154.

Products liability: lubricating products and systems, 80 A.L.R.4th 972.

Products liability: all-terrain vehicles (ATV’s), 83 A.L.R.4th 70.

Products liability: hair straighteners and relaxants, 84 A.L.R.4th 1090.

Products liability: cutting or heating torches, 84 A.L.R.4th 1123.

Products liability: lighters and lighter fluid, 14 A.L.R.5th 47.

Presumption or inference, in products liability action based on failure to warn, that user of product would have heeded an adequate warning had one been given, 38 A.L.R.5th 683.

Liability of manufacturer or distributor for injuries arising from allegedly defective artificial knee devices or prostheses, 89 A.L.R.6th 337.

Products liability: pain pumps, 90 A.L.R.6th 75.

Federal preemption of state common-law products liability claims pertaining to medical devices, implants, and other health-related items, 74 A.L.R. Fed. 2d 1.

Constitutionality.

In the present enactment of this statute of repose, there is no evidence demonstrating a close correspondence between the legislative goals and the classification which bars claims for damages caused by defective products after 10 years from the initial date of their purchase or 11 years from the date of their manufacture, irrespective of whether the injury is incurred within or beyond the period of repose; therefore, this statute creates an unconstitutional classification in violation of N.D. Const. art. I, § 21. Dickie v. Farmers Union Oil Co., 2000 ND 111, 611 N.W.2d 168, 2000 N.D. LEXIS 122 (N.D. 2000).

Collateral References.

Validity and construction of statute terminating right of action for product-caused injury at fixed period after manufacture, sale, or delivery of product, 30 A.L.R.5th 1.

Law Reviews.

North Dakota Supreme Court Review, 77 N.D. L. Rev. 589 (2001).

Application.

District court denied drug manufacturers’ motion for summary judgment in a product liability action based on the rebuttable presumption set forth in this section where some evidence showed that the drug manufacturers knew that a drug was being prescribed to adults but had not sought approval from the Food and Drug Administration for that use. Ehlis v. Shire Richwood, Inc., 233 F. Supp. 2d 1189, 2002 U.S. Dist. LEXIS 23893 (D.N.D. 2002), aff'd, 367 F.3d 1013, 2004 U.S. App. LEXIS 9623 (8th Cir. N.D. 2004).

Constitutionality.

There is no conflict between section 111 of the state constitution giving the county court general jurisdiction in the appointment of guardians and this chapter, R.C. 1943, authorizing the district court to appoint a guardian ad litem. Shuck v. Shuck, 77 N.D. 628, 44 N.W.2d 767, 1950 N.D. LEXIS 158 (N.D. 1950).

Discharge of Duties.

A guardian ad litem has charge of neither the person nor property of the minor and is not accountable to the court except for the faithful discharge of his duties. Shuck v. Shuck, 77 N.D. 628, 44 N.W.2d 767, 1950 N.D. LEXIS 158 (N.D. 1950).

Representative of Court.

A guardian ad litem is the representative of the court in the particular action and not a general guardian. Shuck v. Shuck, 77 N.D. 628, 44 N.W.2d 767, 1950 N.D. LEXIS 158 (N.D. 1950).

Collateral References.

Authority of guardian ad litem or next friend to make agreement to drop or compromise will contest or withdraw objections to probate, 42 A.L.R.2d 1319, 1365.

Liability of guardian ad litem for infant party to civil suit for negligence in connection with suit, 14 A.L.R.5th 929.

Appearance.

If an answer indicates that a third party is the real party in interest, and if such party is incompetent, he may be considered a party so as to authorize his appearance by guardian ad litem. Thronson v. Blough, 38 N.D. 574, 166 N.W. 132, 1917 N.D. LEXIS 63 (N.D. 1917).

Application for Appointment.

A district court or judge may appoint a guardian ad litem for a mentally incompetent person, upon the application of any party thereto, or any relative or friend. Bucholz v. Harthun, 61 N.D. 547, 239 N.W. 161, 1931 N.D. LEXIS 306 (N.D. 1931).

Attorney’s Fees.

Where the appointment was as guardian ad litem under this section and not as guardian under N.D.C.C. § 30.1-28-04, there was no contractual or statutory authority under which attorney’s fees were awarded. Murphy v. Murphy (In re Estate of Murphy), 554 N.W.2d 432, 1996 N.D. LEXIS 221 (N.D. 1996).

Authority to Appoint.

The district court may appoint a guardian ad litem for a defendant only when no guardian has been appointed of his person or estate. Goetz v. Gunsch, 80 N.W.2d 548, 1956 N.D. LEXIS 170 (N.D. 1956).

Real Party in Interest.

In an action for damages, where the real party in interest is non compos mentis, and the record does not show the existence of any general guardian for the incompetent, the court is authorized, under this section, to appoint a guardian ad litem. McLarty v. Raymond, 42 N.D. 241, 172 N.W. 836, 1919 N.D. LEXIS 149 (N.D. 1919).

Attachment Bond.

This section does not apply to an action upon an attachment bond. Hinsey v. Alcox, 38 N.D. 52, 164 N.W. 296, 1917 N.D. LEXIS 13 (N.D. 1917).

Breach of Contract.

Faulty workmanship which damaged underground water pipes and the accompanying disturbance of the ground necessary to repair the pipe, resulting from the defendants’ alleged breach of contract, did not convert the breach of contract action to an action for injury to real property for venue purposes under this section. North Valley Water Ass'n v. Northern Improvement Co., 415 N.W.2d 492, 1987 N.D. LEXIS 431 (N.D. 1987).

County Boundary.

Where the plaintiff’s theory of venue in a quiet title action depended upon a contention that the main channel of a river forming a county boundary had changed by accretion rather than by avulsion, the plaintiff had the burden of proving accretion by a fair preponderance of the evidence, at least where the main channel had since returned by avulsion to its original location. Higgins v. Hawks, 126 N.W.2d 791, 1964 N.D. LEXIS 88, 1964 N.D. LEXIS 89 (N.D. 1964).

Family Settlement Agreement.

Action to set aside family settlement agreement for alleged fraud and undue influence was in personam rather than in rem since agreement was a contract and action was properly triable, under former N.D.C.C. § 30-21-20, in county in which one of several defendants resided rather than under this section, in county where deceased’s real estate was located. Johnson v. Tomlinson, 160 N.W.2d 49, 1968 N.D. LEXIS 102 (N.D. 1968).

Foreclosure of Mortgage.

An action to foreclose a mortgage on real property upon proper demand must be tried in the county in which the land is situated. Viets v. Silver, 19 N.D. 445, 126 N.W. 239, 1910 N.D. LEXIS 53 (N.D. 1910).

The land fixes the necessary situs of the suit to foreclose mortgage. Cosgrave v. McAvay, 24 N.D. 343, 139 N.W. 693, 1913 N.D. LEXIS 3 (N.D. 1913).

An action to foreclose a mortgage instituted in an improper county may be tried therein unless the defendant, before the time for answering expires, demands in writing that the trial be had in the proper county. Agricultural Credit Corp. v. Land Inv. Co., 66 N.D. 343, 265 N.W. 410, 1936 N.D. LEXIS 174 (N.D. 1936).

Jurisdiction of Action.

Acquiescence, personal appearance or participation in an action pertaining to real property brought in the wrong county in violation of this section does not confer jurisdiction of the subject matter upon the court. Johnson v. Johnson, 86 N.W.2d 647, 1957 N.D. LEXIS 175 (N.D. 1957).

The requirement of this section that an action for certain enumerated causes affecting real property must be brought in the county in which the subject matter of the action or some part thereof is situated subject to the power of the court to change the place of trial upon agreement of counsel or in other cases provided by statute pertain to the jurisdiction of the court rather than the venue of the action and the court has no jurisdiction of an action which is brought in a county other than that prescribed by this section. Johnson v. Johnson, 86 N.W.2d 647, 1957 N.D. LEXIS 175 (N.D. 1957).

Leases.

In a landlord-tenant dispute, the location of the property leased determines proper venue. Hieb v. Jelinek, 497 N.W.2d 88, 1993 N.D. LEXIS 17 (N.D. 1993).

Necessity of Objection.

Where a hearing on the motion for default judgment took place in Billings County and the foreclosure action was on land in Stark County, venue was nevertheless proper and the trial court did not abuse its discretion where there was an absence of any record of objection to venue by appellants and the court sought to take advantage of the presence of the parties and judge and to promote the ends of justice. Production Credit Ass'n v. Obrigewitch, 462 N.W.2d 115, 1990 N.D. LEXIS 213 (N.D. 1990).

Recovery of Real Property.

The situs of a suit for the recovery of real property is within the county where the land lies. Wilson v. Kryger, 29 N.D. 28, 149 N.W. 721, 1914 N.D. LEXIS 5 (N.D. 1914), aff'd, 242 U.S. 171, 37 S. Ct. 34, 61 L. Ed. 229, 1916 U.S. LEXIS 1546 (U.S. 1916).

River Change Separating Counties.

In view of presumption that change in river’s course is by accretion rather than by avulsion and total absence of direct evidence as to manner by which river changed its channel, district court had jurisdiction of quiet title action despite stipulation of attorneys that avulsive change had occurred in river which separated counties. Woodland v. Woodland, 147 N.W.2d 590, 1966 N.D. LEXIS 146 (N.D. 1966).

Tax Liens.

The venue of an action by a county to have certain general taxes against certain lands declared and adjudged to be valid liens upon the lands against which they were assessed is fixed by this section and lies in the county in which the lands are situated, it being an action for the recovery of a right or interest in the lands on which it is sought to have such lien established. Cavalier County v. Gestson, 75 N.D. 657, 31 N.W.2d 787, 1948 N.D. LEXIS 91, 1948 N.D. LEXIS 92 (N.D. 1948).

Waiver.

The statute is merely directory with respect to the place of trial, and the defendant has a personal right to insist upon those actions which are denominated as local being tried in the county in which the subject matter is situated, and the defendant may waive such right by default or otherwise. Territory ex rel. Travelers’ Ins. Territory ex rel. Travelers' Ins. Co. v. Judge of District Court, 38 N.W. 439, 5 Dakota 275, 1888 Dakota LEXIS 22 (Dakota 1888).

Collateral References.

Lien as estate or interest in land within venue statute, 2 A.L.R.2d 1261.

Venue of action to set aside as fraudulent conveyance of real property, 37 A.L.R.2d 568.

Venue of actions or proceedings against public officers involving real property, 48 A.L.R.2d 423, 447.

Venue of action for specific performance of contract pertaining to real property, 63 A.L.R.2d 456, 459.

Venue of action for cutting, destruction, or damage of standing timber or trees, 65 A.L.R.2d 1268.

Venue of damage action for breach of real estate sales contract, 8 A.L.R.3d 489.

Oil and gas royalty as real or personal property, venue, 56 A.L.R.4th 539.

Forum non conveniens doctrine in state court as affected by availability of alternate forum, 57 A.L.R.4th 973.

Appeal of Change of Venue.

An order granting a motion for change of venue requires Rule 54(b) certification to invoke the supreme court’s appellate jurisdiction. Western Coop. Credit Union v. Hagemeister, 454 N.W.2d 531, 1990 N.D. LEXIS 96 (N.D. 1990).

A change of venue in an action against a railroad will not be granted for the convenience of defendant’s witnesses if witnesses for the plaintiff would be inconvenienced thereby. Crosby v. Minneapolis, S. P. & S. S. M. Ry., 57 N.D. 447, 222 N.W. 476, 1928 N.D. LEXIS 148 (N.D. 1928)

Change of Venue. A change of venue in an action against a railroad will not be granted for the convenience of defendant's witnesses if witnesses for the plaintiff would be inconvenienced thereby. Crosby v. Minneapolis, S. P. & S. S. M. Ry., 57 N.D. 447, 222 N.W. 476, 1928 N.D. LEXIS 148 (N.D. 1928).

Change of Venue. A change of venue in an action against a railroad will not be granted for the convenience of defendant's witnesses if witnesses for the plaintiff would be inconvenienced thereby. Crosby v. Minneapolis, S. P. & S. S. M. Ry., 57 N.D. 447, 222 N.W. 476, 1928 N.D. LEXIS 148 (N.D. 1928).

Fire Insurance.

An action commenced in Cass County to recover upon a fire insurance policy issued by defendant, insuring property situated in Traill County, was properly changed to Traill County upon timely request by defendant. Burg v. Farmers' Mut. Fire & Lightning Ins. Co., 59 N.D. 407, 230 N.W. 214, 1930 N.D. LEXIS 157 (N.D. 1930).

An action commenced in Hettinger County to recover upon a fire insurance policy issued by defendant, insuring property situated in South Dakota, should have been changed to Grand Forks County, where defendant maintained office and place of business, where the record did not show that the defendant was transacting business in Griffin v. Implement Dealers' Mut. Fire Ins. Co., 62 N.D. 21, 241 N.W. 75, 1932 N.D. LEXIS 146 (N.D. 1932).

A domestic mutual fire insurance company may be sued in a county where it is transacting business although its offices, headquarters, and places of business are in another county. Baird v. Agricultural Credit Corp., 64 N.D. 426, 253 N.W. 68, 1934 N.D. LEXIS 216 (N.D. 1934).

Workmen’s Compensation.

An action in the district court of Burleigh County to recover from defendant employer premiums and accrued penalties alleged to be due to the workmen’s compensation bureau, was subject to change of place of trial to the county of defendant’s residence. State v. Osen, 67 N.D. 436, 272 N.W. 783, 1937 N.D. LEXIS 97 (N.D. 1937).

Joinder of Other Parties.

An officer cannot be deprived of the right to have an action tried in the county where the cause of action arose by the joinder of other parties. Huber v. Wanner, 62 N.D. 303, 243 N.W. 661, 1932 N.D. LEXIS 180 (N.D. 1932).

Public Officer.

The right of a public officer to trial in the county where the cause of action or part thereof arose is absolute. Huber v. Wanner, 62 N.D. 303, 243 N.W. 661, 1932 N.D. LEXIS 180 (N.D. 1932).

Collateral References.

Place where claim or cause of action arose under state venue statute, 53 A.L.R.4th 1104.

Change of Venue.

It is proper to change the place of trial to the county of residence of private and corporate defendants upon the joint demand of both. Farmers' Sec. Bank v. Springen, 48 N.D. 364, 184 N.W. 664, 1921 N.D. LEXIS 50 (N.D. 1921).

Where the record did not show that the defendant domestic corporation was transacting business in Hettinger County, where action was commenced, it was entitled to a change of venue to Grand Forks County where its office and place of business were located. Griffin v. Implement Dealers' Mut. Fire Ins. Co., 62 N.D. 21, 241 N.W. 75, 1932 N.D. LEXIS 146 (N.D. 1932).

Subject to the court’s statutory power to change venue, an action against a domestic corporation is triable in the county designated in the complaint, if the corporation at the time of commencement of the action is transacting business therein. Baird v. Agricultural Credit Corp., 64 N.D. 426, 253 N.W. 68, 1934 N.D. LEXIS 216 (N.D. 1934).

Where a defendant domestic corporation and an individual defendant are both residents of the same county, there exists a statutory right to venue the case to that county, which should not be disturbed except for good cause. Bartholomay v. St. Thomas Lumber Co., 124 N.W.2d 481, 1963 N.D. LEXIS 124 (N.D. 1963).

Joint Defendants.

This statute does not deprive a private defendant of his statutory right to the trial of the cause of action against him in the county of his residence, where the other defendant, a domestic corporation, consents thereto. Farmers' Sec. Bank v. Springen, 48 N.D. 364, 184 N.W. 664, 1921 N.D. LEXIS 50 (N.D. 1921).

Transacting Business.

An action against a domestic corporation may be tried in a county other than the county of its residence, if the corporation is transacting business in such county at the time the action was commenced. Baird v. Agricultural Credit Corp., 64 N.D. 426, 253 N.W. 68, 1934 N.D. LEXIS 216 (N.D. 1934); City of Granville v. Kovash, Inc., 96 N.W.2d 168, 1959 N.D. LEXIS 80 (N.D. 1959).

Waterworks contractor was transacting business in county, although it had ceased construction work, during the period that it guaranteed the workmanship and materials to the municipality. City of Granville v. Kovash, Inc., 96 N.W.2d 168, 1959 N.D. LEXIS 80 (N.D. 1959).

Collateral References.

Place where corporation is doing business for purposes of state venue statute, 42 A.L.R.5th 221.

Absolute Right.

Where the proper county for trial is that of the defendant’s residence, the defendant’s right to trial therein is absolute if asserted within time and in the manner provided by statute. Springer v. Paulson, 72 N.D. 560, 9 N.W.2d 440, 1943 N.D. LEXIS 91 (N.D. 1943).

A sole defendant, residing in this state, has an absolute right to have a divorce action tried in the county of her residence under the provisions of this section, if that right is asserted within the time and in the manner provided by statute. Summers v. Summers, 74 N.D. 741, 24 N.W.2d 688, 1946 N.D. LEXIS 96 (N.D. 1946).

Attachment Bond.

The proper place of trial of an action on an attachment bond is the county of the defendant’s residence, and the defendant has an absolute right to trial in the county of his residence. Hinsey v. Alcox, 38 N.D. 52, 164 N.W. 296, 1917 N.D. LEXIS 13 (N.D. 1917).

Bastardy Proceedings.

This section does not apply to bastardy proceedings. State v. Lang, 19 N.D. 679, 125 N.W. 558, 1910 N.D. LEXIS 30 (N.D. 1910).

Change in Residence.

Taking preliminary steps to effectuate a move does not establish a change in residence. Keating v. Keating, 399 N.W.2d 872, 1987 N.D. LEXIS 248 (N.D. 1987).

Change of Venue.

Change of Venue. A change of venue in an action against a railroad will not be granted for the convenience of defendant's witnesses if witnesses for the plaintiff would be inconvenienced thereby. Crosby v. Minneapolis, S. P. & S. S. M. Ry., 57 N.D. 447, 222 N.W. 476, 1928 N.D. LEXIS 148 (N.D. 1928).

Although an action by the workmen’s compensation bureau for premiums and accrued penalties alleged to be due from defendant as an employer is required by statute to be brought in district court of Burleigh County, defendant may have a change of place of trial to the county of his residence. State v. Osen, 67 N.D. 436, 272 N.W. 783, 1937 N.D. LEXIS 97 (N.D. 1937).

—Absolute Right.

When a demand for a change of venue, based upon the residence of defendants in another county, has been made within the time required by law, the right to change is absolute and not subject to the court’s discretion. State v. Bloom, 49 N.D. 224, 190 N.W. 812, 1922 N.D. LEXIS 44 (N.D. 1922).

A defendant has an absolute right to an order changing the place of trial to the county of his residence. Clark v. Cleveland, 60 N.D. 460, 235 N.W. 342, 1931 N.D. LEXIS 190 (N.D. 1931).

In an action on a note, where a defendant served written demand for a change of venue before the time for answer expired, he has an absolute right to have trial in the county where he resides, and such right is not affected by the substitution of the defendant’s administratrix as a party defendant on death of the defendant. First Nat'l Bank v. Rohlik, 66 N.D. 72, 262 N.W. 458, 1935 N.D. LEXIS 173 (N.D. 1935).

Under the statutes relating to the place of trial of a civil action, the right of a defendant to have the place of trial changed to the proper county is absolute, if proper demand therefor is duly made. Ruchverg v. Russell, 71 N.D. 658, 3 N.W.2d 459, 1942 N.D. LEXIS 100 (N.D. 1942).

Defendant was entitled to change of venue as matter of right where action, properly triable in county of defendant’s residence, was begun in another county and proper demand for change of place of trial was made. American State Bank v. Hoffelt, 236 N.W.2d 895, 1975 N.D. LEXIS 153 (N.D. 1975).

Where an action, properly triable in the county of the defendant’s residence, is begun in another county, the defendant on proper demand is entitled to a change of venue as a matter of right. Keating v. Keating, 399 N.W.2d 872, 1987 N.D. LEXIS 248 (N.D. 1987).

—Appeal.

An order granting a motion for change of venue requires N.D.R.Civ.P., Rule 54(b) certification to invoke the supreme court’s appellate jurisdiction. Western Coop. Credit Union v. Hagemeister, 454 N.W.2d 531, 1990 N.D. LEXIS 96 (N.D. 1990).

—Discretion of Court.

The action of the trial court in granting an application for a change of venue sought after the defendant has answered will not be disturbed by the reviewing court unless an abuse of sound judicial discretion is shown. Springer v. Paulson, 72 N.D. 560, 9 N.W.2d 440, 1943 N.D. LEXIS 91 (N.D. 1943).

—Joint Demand.

It is proper to change the place of trial to the county of residence of private and corporate defendants, upon the joint demand of both. Farmers' Sec. Bank v. Springen, 48 N.D. 364, 184 N.W. 664, 1921 N.D. LEXIS 50 (N.D. 1921).

Where a defendant domestic corporation and an individual defendant are residents of the same county, there exists a statutory right to venue the case to that county, which should not be disturbed except for good cause. Bartholomay v. St. Thomas Lumber Co., 124 N.W.2d 481, 1963 N.D. LEXIS 124 (N.D. 1963).

Convenience of Witnesses.

A motion to change the place of trial to the proper county is not properly resisted by a showing that the convenience of witnesses will be subserved by trial in the county in which the action was begun; proper practice requires such showing to be presented in support of a motion in the court in which defendants have right to have case heard; where defendant has absolute right to change of venue to county of his residence, an order denying seasonable change of venue motion cannot be supported on ground of convenience of witnesses. American State Bank v. Hoffelt, 236 N.W.2d 895, 1975 N.D. LEXIS 153 (N.D. 1975).

The court may change the place of trial to promote the convenience of witnesses and the ends of justice. However, proper practice requires such showing to be presented in the court in which the defendant has a right to have the case heard. Keating v. Keating, 399 N.W.2d 872, 1987 N.D. LEXIS 248 (N.D. 1987).

Determination.

—Factors Considered.

The statutory right to a trial in the defendant’s home county is a significant factor in determining venue and should not be denied except for good cause. Porth v. Glasoe, 522 N.W.2d 439, 1994 N.D. LEXIS 209 (N.D. 1994).

Divorce.

Fact that husband was an inmate at the state penitentiary in Burleigh County when wife brought action for divorce in her county of residence did not constitute sufficient ground to change the venue of the divorce action from wife’s county of residence to Burleigh County. Shulze v. Shulze, 322 N.W.2d 250, 1982 N.D. LEXIS 321 (N.D. 1982).

Venue in a divorce action is governed by this section. Keating v. Keating, 399 N.W.2d 872, 1987 N.D. LEXIS 248 (N.D. 1987).

False Imprisonment.

An action for false imprisonment is properly triable in the county of defendant’s residence. Price v. Willson, 41 N.D. 209, 171 N.W. 245, 1918 N.D. LEXIS 166 (N.D. 1918).

Nonresidents.

—Actions Against.

An action to recover money only brought against a nonresident may be tried in any county. Viets v. Silver, 19 N.D. 445, 126 N.W. 239, 1910 N.D. LEXIS 53 (N.D. 1910).

The plaintiff suing a nonresident corporation on an insurance policy may lay the venue in any county, and the party interpleaded subsequently is not entitled to a change of venue because he is not a resident of the county in which suit was begun. Dillage v. Lincoln Nat'l Life Ins. Co., 54 N.D. 312, 209 N.W. 656, 1926 N.D. LEXIS 149 (N.D. 1926).

The right of a nonresident defendant to a change of the place of trial constitutes a substantial right which cannot be defeated by the fraudulent joinder of a resident defendant. Guaranty Corp. v. Steigman, 62 N.D. 38, 241 N.W. 291, 1932 N.D. LEXIS 148 (N.D. 1932); Guaranty Corp. v. Zeller, 62 N.D. 43, 241 N.W. 293, 1932 N.D. LEXIS 149 (N.D. 1932).

Pre-Trial Publicity.

Where the district court stated that the pre-trial publicity was not inherently prejudicial, but recognized the likelihood that “some polarization” still existed since there was ample evidence presented to the district court to suggest that “some polarization” still existed, the district court did not err in concluding that polarization resulted from the publicity. Jerry Harmon Motors v. First Nat'l Bank & Trust Co., 440 N.W.2d 704, 1989 N.D. LEXIS 99 (N.D. 1989).

Waiver.

Where a defendant has preserved his right to a change of the place of trial to the county of his residence by a proper and timely demand, he does not waive the right by interposing an answer. Ruchverg v. Russell, 71 N.D. 658, 3 N.W.2d 459, 1942 N.D. LEXIS 100 (N.D. 1942).

Appeal of Order.

An order granting a change of venue affects the merits and is appealable. Robertson Lumber Co. v. Jones, 13 N.D. 112, 99 N.W. 1082, 1904 N.D. LEXIS 24 (N.D. 1904).

Burden of Proof.

The parties moving for a change of venue assume the burden of showing such facts as would warrant the court to make the change. Bartholomay v. St. Thomas Lumber Co., 124 N.W.2d 481, 1963 N.D. LEXIS 124 (N.D. 1963).

Applicants for a change of venue under subdivision 3 had the burden of affirmatively proving both good cause for the change and that it would be in the interest of justice. American State Bank v. Hoffelt, 246 N.W.2d 484, 1976 N.D. LEXIS 138 (N.D. 1976).

A party moving for a change of venue has the burden of stating facts, not conclusions, to support the change. Porth v. Glasoe, 522 N.W.2d 439, 1994 N.D. LEXIS 209 (N.D. 1994).

Compulsory Counterclaim.

Where contractor filed an action in Bottineau County against property owner for amount due under contract, and property owner had previously filed an action in Ward County against contractor for a money judgment based on breach of contract and negligent performance, contractor’s action should have been filed as a compulsory counterclaim to property owner’s previously filed action, and court properly transferred contractor’s action to Aasen v. Forsberg, Inc., 346 N.W.2d 294, 1984 N.D. LEXIS 280 (N.D. 1984).

Convenience of Court.

Where the trial court denied defendant’s motion to change venue to accommodate its own convenience, this reason was insufficient under this section. Selland v. Selland, 494 N.W.2d 367, 1992 N.D. LEXIS 262 (N.D. 1992).

Convenience of Parties.

Generally, the convenience of parties will not be considered on a motion for change of venue. Stonewood Hotel Corp. v. Davis Dev., 447 N.W.2d 286, 1989 N.D. LEXIS 205 (N.D. 1989).

Convenience of Witnesses.

Place of trial may be changed for convenience of witnesses. Robertson Lumber Co. v. Jones, 13 N.D. 112, 99 N.W. 1082, 1904 N.D. LEXIS 24 (N.D. 1904); Wolfson v. Schieber, 52 N.D. 165, 201 N.W. 830, 1924 N.D. LEXIS 104 (N.D. 1924).

The court did not abuse its discretion in making an order changing the venue for convenience of witnesses where plaintiff’s application was based upon the files in the case and affidavit of plaintiff’s managing agent, stating names of witnesses, their residence, and that they were necessary, and such statements were not controverted by defendant. Robertson Lumber Co. v. Jones, 13 N.D. 112, 99 N.W. 1082, 1904 N.D. LEXIS 24 (N.D. 1904).

This section presupposes that a trial judge will consider the convenience of witnesses and the saving of expense in granting a change of venue, but it does not require all actions to be sent to an adjoining county for trial. Kramer v. Heins, 34 N.D. 507, 158 N.W. 1061, 1916 N.D. LEXIS 44 (N.D. 1916).

A motion for a change of place of trial for the convenience of witnesses and to promote the ends of justice is addressed to the sound judicial discretion of the trial court. Curren v. Story, 41 N.D. 361, 170 N.W. 875, 1918 N.D. LEXIS 162 (N.D. 1918); Wolfson v. Schieber, 52 N.D. 165, 201 N.W. 830, 1924 N.D. LEXIS 104 (N.D. 1924); Ott v. Kelley, 64 N.D. 361, 252 N.W. 269, 1934 N.D. LEXIS 206 (N.D. 1934); Gessner v. Benson, 79 N.W.2d 152, 1956 N.D. LEXIS 152 (N.D. 1956).

A party requesting change of place of trial on the ground of convenience of witnesses must establish facts warranting the change. Wolfson v. Schieber, 52 N.D. 165, 201 N.W. 830, 1924 N.D. LEXIS 104 (N.D. 1924).

Parties are not deemed witnesses in considering an application for a change of venue on the ground that convenience of witnesses would be promoted thereby. Kiley v. Meckler, 57 N.D. 217, 220 N.W. 926, 1928 N.D. LEXIS 119 (N.D. 1928).

A change of venue in an action against a railroad will not be granted for the convenience of defendant’s witnesses if witnesses for the plaintiff would be inconvenienced thereby. Crosby v. Minneapolis, S. P. & S. S. M. Ry., 57 N.D. 447, 222 N.W. 476, 1928 N.D. LEXIS 148 (N.D. 1928).

Court did not err in denying application for a change of place of trial for the convenience of witnesses where record showed that means of communication were ample, the answer was served in April, and application for change was made on November 15, 1928, just prior to the trial of the case on November 26, 1928. Moen v. Melin, 59 N.D. 582, 231 N.W. 283, 1930 N.D. LEXIS 176 (N.D. 1930).

An application for a change of the place of trial for convenience of witnesses may be granted on the affidavit of an attorney in the case if the showing is such a showing as appeals to the exercise of the court’s discretion. Kinzell v. Payne, 64 N.D. 383, 252 N.W. 624, 1934 N.D. LEXIS 211 (N.D. 1934).

Where one defendant made a credible support for a change of venue for the convenience of witnesses, a number of witnesses lived in the county to which the change was proposed, and there was no counter-showing by the other parties, refusal to grant the motion was an abuse of discretion. Barkman v. Quam, 123 N.W.2d 824, 1963 N.D. LEXIS 113 (N.D. 1963).

It was within the trial court’s discretion to deny a change of venue for convenience of witnesses, from county of defendants’ residence to county where the accident occurred, where some of the witnesses resided in defendants’ county and where there might not have been a fair trial in the county where the accident occurred. Bartholomay v. St. Thomas Lumber Co., 124 N.W.2d 481, 1963 N.D. LEXIS 124 (N.D. 1963).

A motion to change the place of trial to the proper county is not properly resisted by a showing that the convenience of witnesses will be subserved by trial in the county in which the action was begun; proper practice requires such showing to be presented in support of a motion in the court in which defendants have right to have case heard; where defendant has absolute right to change of venue to county of his residence, an order denying seasonable change of venue motion cannot be supported on ground of convenience of witnesses. American State Bank v. Hoffelt, 236 N.W.2d 895 (N.D. 1975), following Clark v. Cleveland, 60 N.D. 460, 235 N.W. 342, 1931 N.D. LEXIS 190 (N.D. 1931).

Where the affidavit in support of plaintiff’s motion for a change of venue for the convenience of witnesses suggested that the primary reason for seeking the change was to permit the action to be consolidated with six related ones then pending in the county to which transfer was sought, the supreme court said that such a reason was not sufficient to justify the change, because upon transfer and consolidation, the defendants in the other six actions would become parties, and under established law the convenience of parties was not a criterion which could be considered in deciding the motion. American State Bank v. Hoffelt, 246 N.W.2d 484, 1976 N.D. LEXIS 138 (N.D. 1976).

Affidavits and memorandum brief submitted in support of plaintiff’s motion for a change of venue on ground on convenience of witnesses which stated that plaintiff’s medical expert witnesses would be inconvenienced and unable to testify where trial originally venued and that plaintiff was a quadriplegic and would be inconvenienced if trial held where originally venued did not set forth with requisite specificity the facts necessary to show exceptional circumstances which would justify a change of venue. Marshall v. Beach, 294 N.W.2d 623, 1980 N.D. LEXIS 255 (N.D. 1980).

In an application for a change of venue on the ground of convenience of witnesses, the moving party has burden of proof to establish that both the convenience of witnesses and the ends of justice would be promoted by the change of venue. Marshall v. Beach, 294 N.W.2d 623, 1980 N.D. LEXIS 255 (N.D. 1980).

The court may change the place of trial to promote the convenience of witnesses and the ends of justice. However, proper practice requires such showing to be presented in the court in which the defendant has a right to have the case heard. Keating v. Keating, 399 N.W.2d 872, 1987 N.D. LEXIS 248 (N.D. 1987).

A movant for change of venue must show that both the convenience of witnesses and the ends of justice would be promoted by such a change. Stonewood Hotel Corp. v. Davis Dev., 447 N.W.2d 286, 1989 N.D. LEXIS 205 (N.D. 1989).

When a change in venue is requested for the convenience of witnesses, the moving party has the burden of showing the testimony of the proposed witnesses is material to prove issues to be tried; the convenience of witnesses whose testimony is merely cumulative is entitled to little consideration. Porth v. Glasoe, 522 N.W.2d 439, 1994 N.D. LEXIS 209 (N.D. 1994).

“Court” Defined.

The “court” referred to in this section is the trial court. Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489, 1989 N.D. LEXIS 191 (N.D. 1989).

Crowded Courthouse.

Where the judge’s comments suggested that the Burleigh County courthouse was generally crowded, so he routinely moved his Burleigh County cases to Morton County, where his permanent chambers were located, the court’s stated reasons for holding the hearing in Morton County were insufficient under the statute to justify a change of venue from the proper county. In re Administration by First Trust Co., 490 N.W.2d 484, 1992 N.D. LEXIS 193 (N.D. 1992).

Denial of Motion.

An order of the trial court denying a motion for a change of venue was not an abuse of discretion although the case had been submitted to three juries in the county in the past and sheriff, who was widely acquainted in the county, was testifying for plaintiff, where there was no showing that the sheriff had tried to use undue influence. Knoepfle v. Suko, 114 N.W.2d 54, 1962 N.D. LEXIS 64 (N.D. 1962).

Discretion of Court.

The granting of an application for a change of venue is within the sound discretion of the trial court, and will not be interfered with unless an abuse of discretion is shown. Curren v. Story, 41 N.D. 361, 170 N.W. 875, 1918 N.D. LEXIS 162 (N.D. 1918).

The action of the trial court in granting an application for a change of venue sought after the defendant has answered will not be disturbed by the reviewing court unless an abuse of sound judicial discretion is shown. Springer v. Paulson, 72 N.D. 560, 9 N.W.2d 440, 1943 N.D. LEXIS 91 (N.D. 1943).

A motion for change of venue, made in the furtherance of justice, is addressed to the sound discretion of the trial court, and the supreme court will not reverse the trial court in the absence of an abuse of discretion. Sand v. Queen City Packing Co., 108 N.W.2d 448, 1961 N.D. LEXIS 68 (N.D. 1961); Barkman v. Quam, 123 N.W.2d 824, 1963 N.D. LEXIS 113 (N.D. 1963); Bartholomay v. St. Thomas Lumber Co., 124 N.W.2d 481, 1963 N.D. LEXIS 124 (N.D. 1963).

The general rule is that no abuse of discretion will be presumed or inferred because some persons in the county may have a prejudice in the case, if, notwithstanding such persons, a fair and impartial trial can be had within the county. Knoepfle v. Suko, 114 N.W.2d 54, 1962 N.D. LEXIS 64 (N.D. 1962).

Trial court did not abuse discretion in transferring case to a county other than that requested by movant in granting motion pursuant to subsection 2. Jamestown Plumbing & Heating Co. v. Jamestown, 189 N.W.2d 656, 1971 N.D. LEXIS 129 (N.D. 1971).

Ends of Justice.

Courts may consider the relative speed with which a trial may be had when determining venue questions. Stonewood Hotel Corp. v. Davis Dev., 447 N.W.2d 286, 1989 N.D. LEXIS 205 (N.D. 1989).

In view of the summary nature of an eviction action and the absence of a jury trial, the ends of justice were promoted by conducting the trial within the period allotted by N.D.C.C. § 33-06-02, and as no courtroom was available in Morton County for the prompt resolution of the action, and the Burleigh County Courthouse was convenient for the witnesses, who were owners of the corporations or their attorneys, trial in Burleigh County was permissible and the trial court did not abuse its discretion in changing venue. Stonewood Hotel Corp. v. Davis Dev., 447 N.W.2d 286, 1989 N.D. LEXIS 205 (N.D. 1989).

Where there were no witnesses to be inconvenienced by the location of the action, and where the tortuous history of the case and the parties’ continued conflict over their children led to the conclusion that the ends of justice would be best served by an expeditious resolution of the action, the denial of a motion for change of venue was affirmed. Hendrickson v. Hendrickson, 2000 ND 1, 603 N.W.2d 896, 2000 N.D. LEXIS 1 (N.D. 2000).

Fair and Impartial Trial.

Order refusing to change the place of trial on application alleging that an impartial trial could not be had in the county, was subject to appeal. White v. Chicago, M. & St. P. Ry., 41 N.W. 730, 5 Dakota 508, 1889 Dakota LEXIS 4 (Dakota 1889).

The fact that a number of persons in any part of a county have a bias or prejudice against the defendant in a civil action in such county will not justify a change of venue against the objection of the adverse party, if, notwithstanding such bias and objection, a fair and impartial trial can be had in that county. Booren v. McWilliams, 33 N.D. 339, 157 N.W. 117, 1916 N.D. LEXIS 86 (N.D. 1916).

The granting of an application for a change of the place of trial on ground that a fair and impartial trial cannot be had in the county where the action was commenced will not be reversed on appeal where there were conflicting affidavits. Farmers' State Bank v. Hager, 58 N.D. 62, 225 N.W. 128, 1929 N.D. LEXIS 182 (N.D. 1929).

A motion for a change of the place of trial of an action, upon the ground that an impartial trial cannot be had in the county in which venue is laid, is premature where the issues in the action have not been joined by filing an answer. State v. Brace, 78 N.D. 428, 50 N.W.2d 89, 1951 N.D. LEXIS 100 (N.D. 1951).

A motion for change of place of trial of an action, on the ground that there is reason to believe that an impartial trial cannot be had in the county where the action was brought, is addressed to the sound judicial discretion of the trial court, and the ruling of the trial court on such motion will not be reversed, the absence of a manifest abuse of such discretion. Knoepfle v. Suko, 114 N.W.2d 54, 1962 N.D. LEXIS 64 (N.D. 1962).

Fact that a major city of a county is a defendant in a district court action and that prospective jurors include taxpayers of the defendant city is insufficient to show that plaintiff can not receive a fair and impartial trial in the county of the city’s location or that a change of venue from such county is required. Hanson v. Garwood Indus., 279 N.W.2d 647, 1979 N.D. LEXIS 250 (N.D. 1979).

Mere assertion that all prospective jurors would be from the county and a city that were defendants in the action was insufficient, without additional evidence, to establish that plaintiff could not receive a fair and impartial trial in the defendant county or that a change of venue was required. Marshall v. Beach, 294 N.W.2d 623, 1980 N.D. LEXIS 255 (N.D. 1980).

In an action under former dramshop statute, repealed N.D.C.C. § 5-01-06, against a bar operated by a municipal association, trial court did not abuse its discretion in granting plaintiff a change of venue from county of municipal association’s residence where county hospital of that county received income from bar’s operation and residents in county were aware of this financial connection; county was relatively small in population and significant numbers of potential jurors lived in municipality in which hospital was located; and there was considerable publicity surrounding alleged leniency in handling of DUI cases by municipal court judge of involved municipality. Haugo v. Haaland, 349 N.W.2d 25, 1984 N.D. LEXIS 307 (N.D. 1984).

The district court did not have to wait until voir dire to determine whether a fair and impartial jury could be selected to try the case in a particular county. Jerry Harmon Motors v. First Nat'l Bank & Trust Co., 440 N.W.2d 704, 1989 N.D. LEXIS 99 (N.D. 1989).

In a personal injury action by a pedestrian injured on the steps of the courthouse in which the case was being heard, the plaintiff’s allegation that the jurors could have disregarded the court’s instruction not to make an independent investigation of the accident site did not demonstrate the plaintiff was denied a fair and impartial trial. Eckman v. Stutsman County, 1999 ND 151, 598 N.W.2d 494, 1999 N.D. LEXIS 177 (N.D. 1999).

Trial court did not abuse its discretion in denying defendant’s motion for a change of venue based on the fact that potential jurors, as residents of Ramsey County, would not be impartial because they were taxpayers subject to a mill levy for the local library. The court reasoned that even though a resident of Ramsey County may have received some indirect benefit from testator’s bequest to the library, this was not sufficient cause to change venue. Bartusch v. Hager (In re Estate of Dion), 2001 ND 53, 623 N.W.2d 720, 2001 N.D. LEXIS 63 (N.D. 2001).

Improper Venue.

Change of venue is required between counties in the same judicial district where statute required claim to be brought in county where claimant resided and claim was filed in another county in the same district. Basin Elec. Power Coop. v. North Dakota Workers Compensation Bureau, 541 N.W.2d 685, 1996 N.D. LEXIS 1 (N.D. 1996).

Jurisdiction of Judge.

After a judge grants a change of venue to a county in another district, a duly-elected judge in the judicial district to which the case is transferred then has jurisdiction to decide the lawsuit. Thompson v. Peterson, 546 N.W.2d 856, 1996 N.D. LEXIS 123 (N.D. 1996).

Post-Judgment Divorce Proceeding.

The word “trial” in this section includes post-judgment divorce proceedings and thereby authorizes the trial court to entertain a motion for change of venue in post-judgment divorce proceedings. Whitehead v. Whitehead, 336 N.W.2d 363, 1983 N.D. LEXIS 324 (N.D. 1983).

Prejudice.

District court did not abuse its discretion in denying landowners’ motion for change of venue where three articles appeared in a monthly rural consumer magazine, and a letter was sent to members of an electric cooperative, but landowners did not establish prior to completion of voir dire that the articles and letter prejudiced them. Basin Elec. Power Coop. v. Boschker, 289 N.W.2d 553, 1980 N.D. LEXIS 210 (N.D. 1980).

Pre-Trial Publicity.

Where the district court stated that the pre-trial publicity was not inherently prejudicial, but recognized the likelihood that “some polarization” still existed since there was ample evidence presented to the district court to suggest that “some polarization” still existed the district court did not err in concluding that polarization resulted from the publicity. Jerry Harmon Motors v. First Nat'l Bank & Trust Co., 440 N.W.2d 704, 1989 N.D. LEXIS 99 (N.D. 1989).

Right to Change of Place of Trial.

A change of place of trial ought to be granted either when there is a reason to believe that an impartial trial cannot be had in the county from which the change is asked, or when the convenience of witnesses and the ends of justice would be promoted by the change. Lilly v. Haynes Coop. Coal Mining Co., 48 N.D. 937, 188 N.W. 38, 1922 N.D. LEXIS 120 (N.D. 1922).

A defendant has an absolute right to an order changing the place of trial to the county of his residence. Clark v. Cleveland, 60 N.D. 460, 235 N.W. 342, 1931 N.D. LEXIS 190 (N.D. 1931).

Where an action properly triable in the county of defendant’s residence is begun elsewhere, the defendant on proper demand is entitled to a change of the place of trial as a matter of right. Ott v. Kelley, 64 N.D. 361, 252 N.W. 269, 1934 N.D. LEXIS 206 (N.D. 1934).

Defendant was entitled to change of venue as matter of right where action, properly triable in county of defendant’s residence, was begun in another county and proper demand for change of place of trial was made. American State Bank v. Hoffelt, 236 N.W.2d 895, 1975 N.D. LEXIS 153 (N.D. 1975).

Fact that husband was an inmate at the state penitentiary in Burleigh County when wife brought action for divorce in her county of residence did not constitute sufficient ground to change the venue of the divorce action from wife’s county of residence to Shulze v. Shulze, 322 N.W.2d 250, 1982 N.D. LEXIS 321 (N.D. 1982).

Ruling on Applications.

If the court overruled an application for a change of venue upon one ground but ignored another ground, the case must be remanded for a ruling thereon. Lilly v. Haynes Coop. Coal Mining Co., 48 N.D. 937, 188 N.W. 38, 1922 N.D. LEXIS 120 (N.D. 1922).

Service of Answer.

A change of venue may not be demanded after the service of an answer even though the period for answering provided by statute has not expired. Springer v. Paulson, 72 N.D. 560, 9 N.W.2d 440, 1943 N.D. LEXIS 91 (N.D. 1943).

Suit Against County.

Granting motion for change of place of trial in suit brought against McLean County in that county was not a manifest abuse of discretion. Linington v. McLean County, 150 N.W.2d 239, 1967 N.D. LEXIS 134 (N.D. 1967).

Workers’ Compensation Appeal.

District court to which a decision of the Workers’ Compensation Bureau was appealed could properly change the venue of the appeal by transferring the case to the district court of the place of injury pursuant to this section, the district court of appropriate venue under N.D.C.C. § 65-10-01. Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489, 1989 N.D. LEXIS 191 (N.D. 1989).

Notwithstanding the fact that the district court is acting in its appellate capacity on an appeal from an administrative agency, this section applies to permit the district court to change the place of trial when the “ends of justice” are promoted by such a change. Hayden v. North Dakota Workers Compensation Bureau, 447 N.W.2d 489, 1989 N.D. LEXIS 191 (N.D. 1989).

Collateral References.

Effect of nonsuit, dismissal or discontinuance of action on prior order changing venue, 11 A.L.R.2d 1407.

Disqualification of judge in state proceedings to punish contempt against or involving himself in open court and in his actual presence, 37 A.L.R.4th 1004.

Construction of provision in Federal Criminal Procedure Rule 42(b) that if contempt charges involve disrespect to or criticism of judge, he is disqualified from presiding at trial or hearing except with defendant’s consent, 3 A.L.R. Fed. 420.

Doctrine of forum non conveniens: assumption or denial of jurisdiction of action involving matrimonial dispute, 55 A.L.R.5th 647.

Law Reviews.

Counterclaims and Third-Party Practice under the North Dakota Rules, 34 N.D. L. Rev. 7 (1958).

Venue—Juries: Changing Venue to Obtain a Fair and Impartial Trial: Trial Court Discretion or Subjective Evaluation? Is This the End of Trials in Rural North Dakota Counties?, 70 N.D. L. Rev. 675 (1994).

Jurisdiction of Judge.

After a judge grants a change of venue to a county in another district, a duly-elected judge in the judicial district to which the case is transferred then has jurisdiction to decide the lawsuit. Thompson v. Peterson, 546 N.W.2d 856, 1996 N.D. LEXIS 123 (N.D. 1996).

Application for Change of Venue.

An application for a change of venue by the only defendant against whom a cause of action is stated is determinable as though the action were against such defendant only. Burg v. Farmers' Mut. Fire & Lightning Ins. Co., 59 N.D. 407, 230 N.W. 214, 1930 N.D. LEXIS 157 (N.D. 1930).

Where the proper county for trial is that of the defendant’s residence, the defendant’s right to trial therein is absolute if asserted within time and in the manner provided by statute. Springer v. Paulson, 72 N.D. 560, 9 N.W.2d 440, 1943 N.D. LEXIS 91 (N.D. 1943).

Change of Venue.

—Garnishment.

A garnishee resident of a county other than that in which an action is pending may move for a change of venue. Thorson v. Weimer, 59 N.D. 457, 230 N.W. 596, 1930 N.D. LEXIS 163 (N.D. 1930).

Right to Change of Place of Trial.

A change of the place of trial under a statute providing therefor is mandatory when the defendant has brought himself within the terms of the statute. State v. Bloom, 49 N.D. 224, 190 N.W. 812, 1922 N.D. LEXIS 44 (N.D. 1922).

The right to a change of the place of the trial of an action is determined by the pleadings at the time the party claiming the right first appears and makes demand. Bremen Elevator Co. v. Farmers & Merchants Bank, 54 N.D. 540, 210 N.W. 25, 1926 N.D. LEXIS 59 (N.D. 1926).

Timeliness.

A cause of action can be tried in an improper venue, unless defendant timely demands in writing that the trial be had in the proper county, and questioning venue after plaintiff has moved for a default judgment many months after service of process is not timely. Varriano v. Bang, 541 N.W.2d 707, 1996 N.D. LEXIS 12 (N.D. 1996).

Waiver.

Motion for change of place of trial was too late where parties had actually answered and the cause had been tried on its merits.

Defendant simply has a personal right to insist upon those actions which are denominated as “local” being tried in the county in which the subject matter is situated, and the defendant to the action may waive this right by his default. Territory ex rel. Travelers’ Ins. Territory ex rel. Travelers' Ins. Co. v. Judge of District Court, 38 N.W. 439, 5 Dakota 275, 1888 Dakota LEXIS 22 (Dakota 1888).

Where the defendant has preserved his right by proper and timely demand, he does not waive it by interposing an answer. Ruchverg v. Russell, 71 N.D. 658, 3 N.W.2d 459, 1942 N.D. LEXIS 100 (N.D. 1942).

Written Demand.

Affidavit which merely stated that defendant was a resident of another county was insufficient as a demand for a change of venue. Hetletved v. Hansen, 256 N.W.2d 360, 1977 N.D. LEXIS 153 (N.D. 1977).

Effect of Filing.

The filing of lis pendens is mere notice of the pendency of an action, constructive as to purchasers or encumbrancers. Beyer v. Investors' Syndicate, 47 N.D. 358, 182 N.W. 934, 1921 N.D. LEXIS 128 (N.D. 1921).

Filing lis pendens with the register of deeds without filing a complaint in the district court clerk’s office is not constructive service. Plott v. Kittelson, 58 N.D. 881, 228 N.W. 217, 1929 N.D. LEXIS 292 (N.D. 1929).

In the landowners’ quiet title suit against an oil and gas company to determine conflicting claims and title to an oil and gas lease, summary judgment in favor of the landowners was proper as the company was bound by a settlement in a prior action, and its interest in the lease was subject to the prior lis pendens as per N.D.C.C. § 28-05-07. The company took its assignment of the lease from a prior holder in interest of the lease subject to the outcome of the litigation by the landowners against the prior holder, the prior holder conveyed all of its interest in the lease to a landowner, leaving the prior holder with no interest in the lease and, therefore, the company had no interest in the lease when judgment was entered in the prior action. Bragg v. Burlington Res. Oil & Gas Co. LP, 2009 ND 33, 763 N.W.2d 481, 2009 N.D. LEXIS 61 (N.D. 2009).

Effect of Notice.

A notice of lis pendens merely serves to give notice to subsequent purchasers or encumbrancers of the pendency of the action, so as to make the judgment therein binding upon such persons. Boehm v. Long, 43 N.D. 1, 172 N.W. 862, 1919 N.D. LEXIS 3 (N.D. 1919).

Failure to File.

The statutory notice of lis pendens does not of itself create a lien or interest in realty. McKenzie County v. Casady, 55 N.D. 475, 214 N.W. 461, 1927 N.D. LEXIS 115 (N.D. 1927).

In an action relating to land, where no lis pendens has been filed with the register of deeds as required by a state statute, a finding that a purchaser pending the suit is an innocent purchaser without notice cannot be disturbed without evidence to contradict it. Smith v. Gale, 144 U.S. 509, 12 S. Ct. 674, 36 L. Ed. 521, 1892 U.S. LEXIS 2094 (U.S. 1892)

Formalities.

A lis pendens must contain the names of the proper parties. Buxton v. Sargent, 7 N.D. 503, 75 N.W. 811, 1898 N.D. LEXIS 93 (N.D. 1898), distinguished, McHenry v. Kidder County, 8 N.D. 413, 79 N.W. 875, 1899 N.D. LEXIS 30 (N.D. 1899).

Lien Priority.

Federal tax lien filed after the filing of lis pendens notice and before judgment takes priority over the equitable lien. Atlas, Inc. v. United States, 459 F. Supp. 1000, 1978 U.S. Dist. LEXIS 14284 (D.N.D. 1978).

Sale Pending Suit.

In an equity suit to set aside realty taxes levied by the county, taxpayer may obtain relief against the county for selling land at tax sale pending suit, although after dissolution of an order restraining the county from doing any act to affect the title to the lands, in a suit in the ordinary course of proceedings and not by way of contempt, in view of the fact that the county and tax sale purchasers who took with constructive notice of lis pendens would all be bound by any decree. Dakota Corp. v. Slope County, 75 F.2d 584, 1935 U.S. App. LEXIS 3001 (8th Cir. N.D.), cert. denied, 296 U.S. 593, 56 S. Ct. 106, 80 L. Ed. 420, 1935 U.S. LEXIS 802 (U.S. 1935).

Unrecorded Deed.

An unrecorded deed executed and delivered prior to but not recorded until after the filing of a lis pendens in an attachment proceeding conveys a title superior to that obtained by the purchaser at the execution sale under the attachment. Bateman v. Backus, 34 N.W. 66, 34 N.W. 68, 4 Dakota 433 (Dakota 1887).

Collateral References.

Duration of operation of lis pendens as dependent upon diligent prosecution of suit, 8 A.L.R.2d 986.

New or successive notice of lis pendens in same or new action after loss or cancellation of original notice, 52 A.L.R.2d 1308.

Lis pendens in suit to compel stock transfer, 48 A.L.R.4th 731.

Lis pendens as applicable to suit for separation or dissolution of marriage, 65 A.L.R.4th 522.

Leases.

Borrowers were not entitled to have a lis pendens on certain mineral leases removed pursuant to N.D.C.C. § 28-05-08 because the leases were subject to an agreement under which the borrowers granted to the lender a net profits royalty interest from any production of the leases, and the lis pendens was filed based on damage claims that arose from the duty to take the leases for the benefit of the lender. Macquarie Bank v. Knickel, 723 F. Supp. 2d 1161, 2010 U.S. Dist. LEXIS 65844 (D.N.D. 2010), aff'd, 793 F.3d 926, 2015 U.S. App. LEXIS 12356 (8th Cir. N.D. 2015).

Collateral References.

Lis pendens: grounds for cancellation prior to termination of underlying action, absent claim of delay, 49 A.L.R.4th 242.

Criminal Action.

By analogy a criminal action is also pending until its final determination upon appeal or until time for appeal has passed. State v. Prince, 66 N.W.2d 796, 1954 N.D. LEXIS 111 (N.D. 1954); State v. Jager, 91 N.W.2d 337, 1958 N.D. LEXIS 83 (N.D. 1958).

Divorce Actions.

The definition of a pending action found in this section is consistent with the use of that term in N.D.R.Civ.P., Rule 26(b) and both are applicable to divorce actions, so that once a final determination has been made and the time for appeal has passed, a divorce decree is not “pending” until jurisdiction of the court is reinvoked by motion of a party. Fichter v. Kadrmas, 507 N.W.2d 72, 1993 N.D. LEXIS 189 (N.D. 1993).

Entry of Judgment.

Upon the failure of the record to show the service of notice of the entry of judgment, an action will be deemed to have been pending in district court as a proceeding for the judgment’s amendment. Kilby v. Movius Land & Loan Co., 57 N.D. 14, 219 N.W. 948, 1928 N.D. LEXIS 89 (N.D. 1928).

Execution on Judgment.

Judgment debtor was not entitled to injunction, after a final judgment, to restrain judgment creditor from enforcing judgment by execution, although debtor had instituted action to cancel the judgment. Security State Bank v. Peterson, 59 N.D. 341, 229 N.W. 921, 1930 N.D. LEXIS 147 (N.D. 1930).

Final Determination.

Where an order for judgment was issued in plaintiff’s suit against operator and owner of vehicle involved in a collision with plaintiff on November 3, 1987, and judgment was entered on December 3, 1987, these steps did not complete the suit; an appeal, affirmed on July 19, 1988 and mandate issued on August 12, 1988 was the final determination of completion. Finch v. Backes, 491 N.W.2d 705, 1992 N.D. LEXIS 225 (N.D. 1992).

Motion for New Trial.

After the time for an appeal from a judgment has expired, the trial court cannot entertain a motion for a new trial over the objection of the adverse party, unless the final character of the judgment has been suspended by proceedings commenced prior to the expiration of the time for appeal. Higgins v. Rued, 30 N.D. 551, 153 N.W. 389, 1915 N.D. LEXIS 147 (N.D. 1915), Gohl v. Bechtold, 37 N.D. 141, 163 N.W. 725, 1917 N.D. LEXIS 83 (N.D. 1917); Gohl v. Bechtold, 37 N.D. 141, 163 N.W. 725, 1917 N.D. LEXIS 83 (N.D. 1917); Grove v. Morris, 31 N.D. 8, 151 N.W. 779, 1915 N.D. LEXIS 158 (N.D. 1915); Garbush v. Firey, 33 N.D. 154, 156 N.W. 537, 1916 N.D. LEXIS 67 (N.D. 1916); Gohl v. Bechtold, 37 N.D. 141, 163 N.W. 725, 1917 N.D. LEXIS 83 (N.D. 1917); Bovey-Shute Lumber Co. v. Donahue, 43 N.D. 247, 175 N.W. 205, 1919 N.D. LEXIS 38 (N.D. 1919); Couglin v. Aetna Life Ins. Co., 49 N.D. 948, 194 N.W. 661, 1923 N.D. LEXIS 41 (N.D. 1923); Sea-Gate Tire & Rubber Co. v. Butts, 58 N.D. 232, 225 N.W. 787, 1929 N.D. LEXIS 198 (N.D. 1929).

Where a motion for new trial was duly noticed to be heard within six-month period, and final hearing thereon postponed by consent of parties, or delay of court in deciding the motion, final character of judgment was suspended by pending proceedings. Skaar v. Eppeland, 35 N.D. 116, 159 N.W. 707 (1916), distinguished, Gohl v. Bechtold, 37 N.D. 141, 163 N.W. 725 (1917) and Sea-Gate Tire & Rubber Co. v. Butts, 58 N.D. 232, 225 N.W. 787, 1929 N.D. LEXIS 198 (N.D. 1929).

The jurisdiction of trial court to entertain a motion for a new trial is not terminated as long as action is pending. Nevland v. Njust, 78 N.D. 747, 51 N.W.2d 845, 1952 N.D. LEXIS 73 (N.D. 1952).

Power to Vacate.

The power to vacate or modify a judgment is not restricted to the term at which it is entered. Bank of Inkster v. Christenson, 49 N.D. 1047, 194 N.W. 702, 1923 N.D. LEXIS 48 (N.D. 1923).

Purchaser Pendente Lite.

One who purchases the subject matter of an action after judgment and before appeal is a purchaser pendente lite. 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).

Reinvoking Jurisdiction.

Where no motion was made that would reinvoke the jurisdiction of the district court, the action was no longer “pending” under this section, and discovery was not appropriate under N.D.R.Civ.P., Rule 26(b). Fichter v. Kadrmas, 507 N.W.2d 72, 1993 N.D. LEXIS 189 (N.D. 1993).

Satisfaction.

The payment of money and the acceptance of the satisfaction extinguished the judgment and the cause of action and resulted in a waiver of the right of appeal. Signor v. Clark, 13 N.D. 35, 99 N.W. 68, 1904 N.D. LEXIS 19 (N.D. 1904).

Time for Appeal.

If the six-months’ period has elapsed within which time an appeal may be had, without any appeal, the judgment has become final and the action is deemed no longer pending. Weigel v. Powers Elevator Co., 50 N.D. 776, 198 N.W. 121, 1924 N.D. LEXIS 30 (N.D. 1924).

Bank’s Depositors.

A deposit with a bank does not constitute a debtor and creditor relationship under this section, so as to require automatic disqualification of depositors from serving on a jury in an action involving that bank. Jerry Harmon Motors v. First Nat'l Bank & Trust Co., 440 N.W.2d 704, 1989 N.D. LEXIS 99 (N.D. 1989).

Cases Involving Same Facts.

Jurors who have sat in other similar cases involving the same facts, and who have declared that their decision would be the same as in such former case, are subject to challenge for cause. Wilkins v. National Union Fire Ins. Co., 48 N.D. 1295, 189 N.W. 317, 1922 N.D. LEXIS 177 (N.D. 1922).

Change of Venue.

The sum of characteristics possessed by individual jurors may justify a change of venue, even though there are no grounds to remove any individual for cause. Slaubaugh v. Slaubaugh, 499 N.W.2d 99, 1993 N.D. LEXIS 79 (N.D. 1993).

Denial of Challenge for Cause.

The error in overruling a challenge for cause while a peremptory challenge remains unused is not prejudicial. Herbert v. Northern Pac. Ry., 13 N.W. 349, 3 Dakota 38, 1882 Dakota LEXIS 3 (Dakota 1882), aff'd, 116 U.S. 642, 6 S. Ct. 590, 29 L. Ed. 755, 1886 U.S. LEXIS 1807 (U.S. 1886).

In an action against a grain terminal association, inclusion on the jury of four women whose husbands were members of the association was an insufficient conflict of interest to challenge the make-up of the jury, especially since it would be difficult to find a family in North Dakota who had never done business with such an association, and since the scope of operations would indicate little direct relationship between an individual lawsuit and a benefit or detriment to an individual member. Farmers Union Grain Terminal Ass'n v. Nelson, 223 N.W.2d 494, 1974 N.D. LEXIS 166 (N.D. 1974).

Disqualification.

—Actual Bias Required.

Mere membership in a cooperative does not signify an interest sufficient to automatically disqualify a person from serving as a juror in a case involving the cooperative; to disqualify a prospective juror, a challenger must establish an actual bias, rather than a presumed bias, on the part of the prospective juror. Cassady v. Souris River Tel. Coop., 520 N.W.2d 803, 1994 N.D. LEXIS 185 (N.D. 1994).

—Not Required.

Automatic disqualification is not required when a potential juror is challenged for cause. Cassady v. Souris River Tel. Coop., 520 N.W.2d 803, 1994 N.D. LEXIS 185 (N.D. 1994).

Employee of Party.

This section does not require an employee of one of the parties to be automatically disqualified as a matter of law, particularly in the absence of a challenge for cause to that particular prospective juror; party’s failure to challenge for cause those jurors who were employees of his party opponent constituted a waiver of his right to so challenge. Basin Elec. Power Coop. v. Miller, 310 N.W.2d 715, 1981 N.D. LEXIS 327 (N.D. 1981).

Individualized Inquiry.

Instead of a blanket disqualification of an entire group of potential jurors based on the mere existence of a relationship, subsection (5) requires an analysis of the extent of any individual interest in the outcome of the lawsuit that may exist because of the relationship. Larson v. Williams Elec. Coop., 534 N.W.2d 1, 1995 N.D. LEXIS 119 (N.D. 1995).

Municipal Corporation.

—Defined.

A county is a “municipal corporation” within a statute respecting the challenging of jurors on the ground of interest. Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 867, 1932 N.D. LEXIS 252 (N.D. 1932).

Taxpayer’s Interest.

A statute respecting the right to challenge a juror for cause on the ground of interest excepts a juror whose interest extends no further than that of an ordinary taxpayer. Sheridan County v. Davis, 61 N.D. 744, 240 N.W. 867, 1932 N.D. LEXIS 252 (N.D. 1932).

Where juror’s interest in the outcome of an action extends no further than to affect him as an ordinary taxpayer, such juror is a competent juror not subject to challenge for cause; nevertheless, whether or not juror’s interest as a taxpayer will impair his ability to act fairly and impartially is a proper subject of inquiry on voir dire. Marshall v. Beach, 294 N.W.2d 623, 1980 N.D. LEXIS 255 (N.D. 1980).

Collateral References.

Personal injury or death action, questions to jury in, as to interest in, or connection with, indemnity insurance company, 4 A.L.R.2d 761.

Right to challenge for cause as prejudiced by appearance of additional counsel in civil case after impaneling of jury, 56 A.L.R.2d 971.

Prejudicial effect of reference, on voir dire examination of jurors, to settlement efforts or negotiations, 67 A.L.R.2d 560.

Effect of juror’s false or erroneous answer on voir dire in personal injury or death action as to previous claims or actions for damages by himself or his family, 38 A.L.R.4th 267.

Professional or business relations between proposed juror and attorney as ground for challenge for cause, 52 A.L.R.4th 964.

Effect of juror’s false or erroneous answer on voir dire as to previous claims or actions against himself or his family, 66 A.L.R.4th 509.

Propriety of inquiry on voir dire as to juror’s attitude toward, or acquaintance with literature dealing with, amount of damage awards, 63 A.L.R.5th 285.

Admissibility, after enactment of Rule 411, Federal Rules of Evidence, of evidence of liability insurance in negligence actions, 40 A.L.R. Fed. 541.

Law Reviews.

Venue—Juries: Changing Venue to Obtain a Fair and Impartial Trial: Trial Court Discretion or Subjective Evaluation? Is This the End of Trials in Rural North Dakota Counties?, 70 N.D. L. Rev. 675 (1994).

Summary of North Dakota Supreme Court decisions on Juries, 72 N.D. L. Rev. 763 (1996).

Change in Order.

Where instructions were given to jury before attorneys were permitted to argue case to jury, party who made no objection to change in order of trial cannot later predicate error upon it. Bormann v. Beckman, 73 N.D. 720, 19 N.W.2d 455, 1945 N.D. LEXIS 86 (N.D. 1945).

Right to Open and Close.

Where only issue for jury to determine was defendant’s amount of damages in action to condemn right of way over defendant’s land, he had right to open and close argument. Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 1942 N.D. LEXIS 148 (N.D. 1942).

A plaintiff in an action has the right to open and close unless the judge for special reasons directs otherwise. Myra Found. v. Harvey, 100 N.W.2d 435, 1959 N.D. LEXIS 125 (N.D. 1959).

Where defendants carried the ultimate burden of persuasion under the applicable law on the only disputed issues presented to the jury, trial court did not abuse its discretion in allowing defendants to open and close final argument. In re Estate of Honerud, 294 N.W.2d 619, 1980 N.D. LEXIS 260 (N.D. 1980).

Law Reviews.

Article: The Law As Justification: A Critical Rationalist Analysis, see 86 N.D. L. Rev. 149 (2010).

Dictionary.

Trial court erred in denying defendant’s motion for a mistrial based upon the jury’s improper use of dictionary during its deliberations. State v. Abell, 383 N.W.2d 810, 1986 N.D. LEXIS 274 (N.D. 1986).

Discretion of Court.

This section is permissive and not mandatory, and the failure of the trial court to send papers received in evidence out with the jury is not error, except in case of an abuse of discretion. Rolette State Bank v. Minnekota Elevator Co., 50 N.D. 141, 195 N.W. 6, 1923 N.D. LEXIS 82 (N.D. 1923).

The trial court has wide discretion in determining whether or not to grant a new trial on the basis of jury misconduct and its determination will not be set aside on appeal unless it has abused its discretion. State v. Abell, 383 N.W.2d 810, 1986 N.D. LEXIS 274 (N.D. 1986).

Exhibits Admitted in Evidence.

Trial court did not err when he permitted the jury to take stopwatch exhibit that had been admitted into evidence without objection into the jury room. South v. National R.R. Passenger Corp., 290 N.W.2d 819, 1980 N.D. LEXIS 197 (N.D. 1980).

Explanatory Instruments.

Jurors cannot be allowed to have any instruments or articles that have not been admitted as exhibits or used as instruments in explaining exhibits, and they can have latter with consent of counsel. King v. Railway Express Agency, 94 N.W.2d 657, 1959 N.D. LEXIS 68 (N.D. 1959).

Hearsay Evidence.

It was error for trial court to send out with jury a report made by an expert, containing statements of facts and conclusions to which he did not testify, such admission violating rule against hearsay evidence. Grand Forks Bldg. & Dev. Co. v. Implement Dealers Mut. Fire Ins. Co., 75 N.D. 618, 31 N.W.2d 495 (1948), decided prior to the adoption of N.D.R.Ev. 801; distinguished, Leake v. Hagert, 175 N.W.2d 675, 1970 N.D. LEXIS 112 (N.D. 1970).

Lawbooks.

Where volume of North Western Reporter open to North Dakota wrongful death case was inadvertently left in jury room during deliberations of jury in similar case, the trial court properly found prejudicial error and correctly ordered new trial. Demaray v. Ridl, 249 N.W.2d 219, 1976 N.D. LEXIS 183 (N.D. 1976).

Personal Property Exhibits.

It is proper for jurors to inspect exhibits of personal property during their deliberations. State v. Ehr, 52 N.D. 946, 204 N.W. 867, 1925 N.D. LEXIS 158 (N.D. 1925).

Statement of Claims.

A statement of claims submitted in a charge will be considered as a part of the instructions, and not a paper relating to evidence excluded from the jury room. Ley v. Gulke, 58 N.D. 727, 227 N.W. 222, 1929 N.D. LEXIS 275 (N.D. 1929).

Unadmitted Instruments.

Allowing jury to have ruler and string which had not been admitted into evidence during trial with which they could conduct experiment was prejudicial error because results of experiment could be inaccurate and misleading. King v. Railway Express Agency, 94 N.W.2d 657, 1959 N.D. LEXIS 68 (N.D. 1959).

Collateral References.

Taking and use of trial notes by jury, 36 A.L.R.5th 255.

Applicability.

Trial court did not abuse its discretion by allowing the jury to separate for twelve days before hearing closing arguments and deliberating. Contrary to the contention of the husband and wife, N.D.C.C. § 28-14-18 did not apply to the case as it applied only when the case was submitted to the jurors, and the case was not submitted to the jurors when they separated. Wahl v. Northern Improvement Co., 2011 ND 146, 800 N.W.2d 700, 2011 N.D. LEXIS 146 (N.D. 2011).

Failure to Admonish Jury Before Dismissal.

It was error for trial court to fail to admonish jury before temporarily dismissing them during deliberations that they were not to discuss the case with anyone during the dismissal, and that they were to consider the case only in the jury room with all members of the jury present. Keyes v. Amundson, 343 N.W.2d 78, 1983 N.D. LEXIS 443 (N.D. 1983).

Harmless Error.

The harmless error doctrine applies in regard to ex parte communications with the jury. Andrews v. O'Hearn, 387 N.W.2d 716, 1986 N.D. LEXIS 312 (N.D. 1986).

Statements of Bailiff.

Where bailiff made statement to jurors that they would not be discharged until agreement had been reached, and verdict was contrary to trial court’s instructions, new trial was granted. James Turner & Sons v. Great N. Ry., 67 N.D. 347, 272 N.W. 489, 1937 N.D. LEXIS 89 (N.D. 1937).

Bailiff erred in informing the jurors that they could not receive a dictionary. Andrews v. O'Hearn, 387 N.W.2d 716, 1986 N.D. LEXIS 312 (N.D. 1986).

Statute Strictly Followed.

The statute requiring jurors to be kept together, and prohibiting communication with them is mandatory, and should be strictly followed. James Turner & Sons v. Great N. Ry., 67 N.D. 347, 272 N.W. 489, 1937 N.D. LEXIS 89 (N.D. 1937).

Verdict Split.

—Further Deliberation.

Where a case is submitted to the jury and the jury, after retiring for deliberation, returns to the courtroom to render its verdict, and, upon being polled, a juror disagrees with the verdict as rendered, this section ceases to apply and the jury must be sent out for further deliberation. Stradinger v. Hatzenbuhler, 137 N.W.2d 212, 1965 N.D. LEXIS 119 (N.D. 1965).

Weekend Separation.

This section does not give trial court discretion to allow jurors to separate and return to their homes for a weekend break during their deliberations; at a maximum, this section permits an eight-hour separation between the hours of twelve midnight and eight a.m. Keyes v. Amundson, 343 N.W.2d 78, 1983 N.D. LEXIS 443 (N.D. 1983).

Collateral References.

Right to have reporter’s notes read to jury, 50 A.L.R.2d 176.

Permitting documents on tapes containing confessions or admissions in jury room in criminal case, 37 A.L.R.3d 238.

Statements or intimation by member of jury that defendant is covered by insurance or for other reason would not bar the real burden of an adverse verdict, 47 A.L.R.3d 1299.

Presence of alternate juror in jury room as ground for reversal of state criminal conviction, 15 A.L.R.4th 1127.

Propriety, under state statute or court rule, of substituting state trial juror with alternate after case has been submitted to jury, 88 A.L.R.4th 711.

Alternate jurors in federal trials under Rule 24(c) of Federal Rules of Criminal Procedure or Rule 47(b) of Federal Rules of Civil Procedure, 10 A.L.R. Fed. 185; 119 A.L.R. Fed. 589.

Prejudicial effect, in civil case, of communications between judges and jurors, 33 A.L.R.5th 205.

Prejudicial effect, in civil case, of communications between court officials or attendants and jurors, 31 A.L.R.5th 572.

Taking of notes by jury, 36 A.L.R.5th 255.

Burden of Proof.

The burden is on the prevailing party, not on the nonprevailing party, to prove no prejudice from the improper ex parte communications to the jury. Kronberger v. Zins, 463 N.W.2d 656, 1990 N.D. LEXIS 247 (N.D. 1990).

Communication Regarding Merits.

Where the communication between the judge and jury concerned neither a reiteration of a previously given instruction nor an instruction which was merely administrative, and instead went directly to the jury’s consideration of the merits, the error was not harmless. Kronberger v. Zins, 463 N.W.2d 656, 1990 N.D. LEXIS 247 (N.D. 1990).

Instructions in Jury Room.

Prejudicial error is presumed where trial judge entered jury room and gave additional oral instructions without presence of court reporter, other parties, or their attorneys, and without consent of, or notice to parties or attorneys. Ferderer v. Northern Pac. Ry., 75 N.D. 139, 26 N.W.2d 236, 1947 N.D. LEXIS 53, 1947 N.D. LEXIS 54 (N.D. 1947), limited, Leake v. Hagert, 175 N.W.2d 675, 1970 N.D. LEXIS 112 (N.D. 1970).

Prejudicial error committed by judge in giving additional instructions to jury in jury room without presence of, or notice to, parties or their attorneys was not rendered harmless because jury had already answered decisive special interrogatory. Ferderer v. Northern Pac. Ry., 75 N.D. 139, 26 N.W.2d 236, 1947 N.D. LEXIS 53, 1947 N.D. LEXIS 54 (N.D. 1947), limited, Leake v. Hagert, 175 N.W.2d 675, 1970 N.D. LEXIS 112 (N.D. 1970).

Statute Mandatory.

This statute is mandatory and failure to comply with it is error per se and deemed prejudicial until the contrary is shown. Ferderer v. Northern Pac. Ry., 75 N.D. 139, 26 N.W.2d 236, 1947 N.D. LEXIS 53, 1947 N.D. LEXIS 54 (N.D. 1947), limited, Leake v. Hagert, 175 N.W.2d 675, 1970 N.D. LEXIS 112 (N.D. 1970).

By failing to bring the jury into court and notify the parties and counsel when the jury had a question about a special verdict form, a trial court exacerbated an error in the form and contributed to the jury ultimately returning an inconsistent and irreconcilable verdict; the question and answer were not merely administrative in nature, and the prevailing parties failed to meet their burden of showing the error was harmless Haley v. Dennis, 2004 ND 96, 679 N.W.2d 263, 2004 N.D. LEXIS 191 (N.D. 2004).

Testimony of Witness.

Trial court’s failure to honor request by jury to have witnesses’ testimony read to them did not constitute error since, under this section, trial court has discretionary power to determine whether testimony should be read to jury. Leake v. Hagert, 175 N.W.2d 675, 1970 N.D. LEXIS 112 (N.D. 1970).

Collateral References.

Prejudicial effect, in civil case, of communications between court officials or attendants and jurors, 31 A.L.R.5th 572.

Further Jury Deliberation Where Any Juror Disagrees.

Where a jury has retired to the jury room for deliberation and, upon returning to the courtroom to render its verdict and upon being polled, one of the jurors disagrees with the verdict, it is reversible error for the trial court to fail or refuse to send the jurors out for further deliberation. Stradinger v. Hatzenbuhler, 137 N.W.2d 212, 1965 N.D. LEXIS 119 (N.D. 1965).

Rendition.

An unsigned verdict properly rendered is valid because the statute is directory. Hart v. Wyndmere, 21 N.D. 383, 131 N.W. 271, 1911 N.D. LEXIS 117 (N.D. 1911).

Amendment of Verdict.

A portion of the verdict may not be stricken by the trial court and judgment entered on the remainder. Watne v. Rue, 50 N.D. 651, 197 N.W. 766, 1924 N.D. LEXIS 18 (N.D. 1924).

A verdict amended by the court is not the verdict of the jury in the case. Watne v. Rue, 50 N.D. 651, 197 N.W. 766, 1924 N.D. LEXIS 18 (N.D. 1924).

Irregular Judgment.

The irregular entry of a judgment upon a general verdict may be vacated upon motion. Mielcarek v. Riske, 74 N.D. 202, 21 N.W.2d 218, 1945 N.D. LEXIS 68 (N.D. 1945).

Collateral References.

Criminal law: propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after jury has been discharged, or has reached or sealed its verdict and separated, 14 A.L.R.5th 89.

Death Before Garnishment.

The death of the defendant before the rendition of a judgment against him dissolves garnishment proceedings in the action against the defendant. First Nat'l Bank v. Rohlik, 66 N.D. 72, 262 N.W. 458, 1935 N.D. LEXIS 173 (N.D. 1935).

Death Before Trial on Note.

Death of defendant before trial does not abate action on note, and administrator may be substituted as party defendant. First Nat'l Bank v. Rohlik, 66 N.D. 72, 262 N.W. 458, 1935 N.D. LEXIS 173 (N.D. 1935).

Aggregate Value Judgment.

In action of claim and delivery where property consists of separate chattels not dependent upon one another for value, judgment rendered for aggregate value is valid in absence of request for specific valuation by defendant. Steidl v. Aitken, 30 N.D. 281, 152 N.W. 276, 1915 N.D. LEXIS 111 (N.D. 1915).

Combined Remedies.

Plaintiff was permitted to combine remedies under this section, specifically to obtain a money judgment for the balance due on the debt and foreclose on the lien. There was no danger of double recovery because the amended judgment stated that only so much of the property would be sold as necessary to satisfy the judgment. Production Credit Ass'n v. Obrigewitch, 443 N.W.2d 923, 1989 N.D. LEXIS 151 (N.D. 1989).

Conversion Action.

An action to recover damages for conversion is entirely different from an action to recover possession of property. More v. Western Grain Co., 31 N.D. 369, 153 N.W. 976, 1915 N.D. LEXIS 183 (N.D. 1915).

Damages Awarded.

The awarding of damages for the taking and detention of personal property in claim and delivery does not impair the party’s right to recover the property or its value. Nichols & Shepard Co. v. Paulson, 10 N.D. 440, 87 N.W. 977, 1901 N.D. LEXIS 46 (N.D. 1901).

Judgment in Alternative.

A judgment in an action of claim and delivery, in favor of the defendant, should be in the alternative if it is shown that the plaintiff purchased the greater part of the goods at an auction sale held by him before the trial. Smith v. Willoughby, 24 N.D. 1, 138 N.W. 7, 1912 N.D. LEXIS 4 (N.D. 1912).

Sureties’ Obligation.

An obligation of sureties in claim and delivery for the payment of such sum as for any cause may be recovered against the defendant is not absolute but conditional. Larson v. Hanson, 21 N.D. 411, 131 N.W. 229, 1911 N.D. LEXIS 101 (N.D. 1911).

Surety on redelivery bond was not liable in the absence of strict allegation and proof of facts showing it would have been impossible to have returned property to plaintiff if its return had been adjudged. Farmers Nat'l Bank v. Ferguson, 28 N.D. 347, 148 N.W. 1049, 1914 N.D. LEXIS 118 (N.D. 1914).

Surety Bound by Findings.

The surety on a redelivery bond to secure possession of property is bound by the findings as to the value of the property seized. First State Bank v. Bradley, 57 N.D. 159, 220 N.W. 848, 1928 N.D. LEXIS 111 (N.D. 1928).

Administrative Agency Appeals.

Decision of district court on appeal from decision of administrative agency should be entered and docketed as a judgment in office of clerk of district court. Langer v. Gray, 74 N.D. 709, 24 N.W.2d 339, 1946 N.D. LEXIS 94 (N.D. 1946).

Authority to Enter.

The coming in of a verdict and order for judgment entered in the minutes, or subsequently written out, signed by judge, and filed, will give clerk authority to enter judgment pursuant to the order. In re Weber, 4 N.D. 119, 59 N.W. 523, 28 L.R.A. 621 (1894), distinguished, Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757 (1899) and In re Lemery's Estate, 15 N.D. 312, 107 N.W. 365, 1906 N.D. LEXIS 38 (N.D. 1906).

Effect of Entry.

There can be no judgment capable of being docketed or enforced until it is entered in the judgment book. In re Weber, 4 N.D. 119, 59 N.W. 523, 28 L.R.A. 621 (1894), distinguished, Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757 (1899) and In re Lemery's Estate, 15 N.D. 312, 107 N.W. 365, 1906 N.D. LEXIS 38 (N.D. 1906).

A judgment is neither effective nor final until it is entered in the judgment book. Monson v. Nelson, 145 N.W.2d 892, 1966 N.D. LEXIS 114 (N.D. 1966).

Entering Judgment.

The process of taxing costs includes notice to the defeated party, thus clerks of court are presumed not to have entered judgment until costs are taxed, in the absence of a showing to the contrary. Bode v. New Eng. Inv. Co., 1 N.D. 121, 45 N.W. 197, 1890 N.D. LEXIS 14 (N.D. 1890).

Final Judgment.

Court order sustaining demurrer and dismissing complaint, with costs to be taxed unless plaintiff amended his complaint, was not a final judgment, but was an order that judgment could be entered in the future upon a specified contingency. Bode v. New Eng. Inv. Co., 1 N.D. 121, 45 N.W. 197, 1890 N.D. LEXIS 14 (N.D. 1890).

Final determinations of district courts never assume the authoritative form of a final judgment until the previous adjudication is recorded in the judgment book. In re Weber, 4 N.D. 119, 59 N.W. 523, 28 L.R.A. 621 (1894), distinguished, Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757 (1899) and In re Lemery's Estate, 15 N.D. 312, 107 N.W. 365, 1906 N.D. LEXIS 38 (N.D. 1906).

Order of dismissal filed and recorded in order book by clerk, or written in minutes of court by judge, did not constitute a final judgment. In re Weber, 4 N.D. 119, 59 N.W. 523, 28 L.R.A. 621 (1894), distinguished, Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757 (1899) and In re Lemery's Estate, 15 N.D. 312, 107 N.W. 365, 1906 N.D. LEXIS 38 (N.D. 1906).

Proof of Judgment.

A judgment cannot be proved, over proper objection, by evidence of the judgment docket or of executions issued unless there is a foundation showing the right to submit secondary evidence. Amundson v. Wilson, 11 N.D. 193, 91 N.W. 37, 1902 N.D. LEXIS 200 (N.D. 1902).

Signing Judgment.

A judgment is the final determination of the rights of parties in the action, and must be signed by the judge. Bode v. New Eng. Inv. Co., 1 N.D. 121, 45 N.W. 197, 1890 N.D. LEXIS 14 (N.D. 1890).

Absence of Decision.

If the decision of trial court is not in the judgment roll, in the absence of an explanation, the supreme court will presume that no decision of the district court was ever filed. Garr, Scott & Co. v. Spaulding, 2 N.D. 414, 51 N.W. 867, 1892 N.D. LEXIS 30 (N.D. 1892).

Affidavit for Continuance.

Affidavit for continuance was not part of the judgment roll and had to be made a part of a bill of exceptions in order for supreme court to review its sufficiency. Everett v. Buchanan, 6 N.W. 439, 2 Dakota 249, 1880 Dakota LEXIS 4 (Dakota 1880).

Challenge to Roll.

Motion to dismiss appeal was denied where certified judgment roll contained statement of case, judgment, findings, pleadings, notice of appeal, and undertaking, and only challenge was to certification of statement of case. Funderburg v. Young, 68 N.D. 481, 281 N.W. 87, 1938 N.D. LEXIS 136 (N.D. 1938).

Contents.

Rulings of court in admitting or excluding evidence, instructions to jury, judge’s minutes or stenographer’s notes, depositions or affidavits were not part of record unless made so by bill of exceptions. St. Croix Lumber Co. v. Pennington, 11 N.W. 497, 2 Dakota 467, 1881 Dakota LEXIS 7 (Dakota 1881).

Neither clerk nor judge can attach any papers to judgment roll which are not prescribed by statute, and judge’s certificate cannot make such papers a part of the record. St. Croix Lumber Co. v. Pennington, 11 N.W. 497, 2 Dakota 467, 1881 Dakota LEXIS 7 (Dakota 1881).

Exceptions taken, settled, signed, and filed after entry of judgment, though not part of technical judgment roll, became part of record on appeal by operation of law. St. Croix Lumber Co. v. Pennington, 11 N.W. 497, 2 Dakota 467, 1881 Dakota LEXIS 7 (Dakota 1881).

Where bill of exceptions had been settled, signed, and filed with clerk before entry of judgment, it became part of judgment roll. St. Croix Lumber Co. v. Pennington, 11 N.W. 497, 2 Dakota 467, 1881 Dakota LEXIS 7 (Dakota 1881).

The technical judgment roll consists of summons, pleadings, verdict or decision, and judgment. St. Croix Lumber Co. v. Pennington, 11 N.W. 497, 2 Dakota 467, 1881 Dakota LEXIS 7 (Dakota 1881).

Uncertified evidence will not be considered as part of the judgment roll proper which the supreme court will review on appeal. Fargo v. Palmer, 29 N.W. 463, 4 Dakota 232, 1886 Dakota LEXIS 8 (Dakota 1886).

Transcript of evidence taken upon trial of action, as had been extended by official stenographer, depositions and evidence excluded at trial, were not part of the judgment roll and subject to motion to strike from record. Wood v. Nissen, 2 N.D. 26, 49 N.W. 103, 1891 N.D. LEXIS 21 (N.D. 1891).

Justice documents, subpoenas, motion for continuance and supporting affidavits, and memorandum of costs were not part of judgment roll. Schomberg v. Long, 15 N.D. 506, 108 N.W. 332, 1906 N.D. LEXIS 61 (N.D. 1906).

An order taxing costs is not a part of the record and cannot be reviewed upon appeal from the judgment, in the absence of a bill of exceptions or statement. Schomberg v. Long, 15 N.D. 506, 108 N.W. 332, 1906 N.D. LEXIS 61 (N.D. 1906).

Trial judge’s written memorandum stating concise ground on which his ruling is based constitutes a part of judgment roll. Crisp v. State Bank, 32 N.D. 263, 155 N.W. 78, 1915 N.D. LEXIS 62 (N.D. 1915).

A request for instructions is not a part of the judgment roll and cannot be reviewed on appeal unless it is incorporated in the statement of the case. Guild v. More, 32 N.D. 432, 155 N.W. 44, 1915 N.D. LEXIS 58 (N.D. 1915).

Judgment roll includes a motion for a new trial. Weigel v. Powers Elevator Co., 50 N.D. 776, 198 N.W. 121, 1924 N.D. LEXIS 30 (N.D. 1924).

Because defendant appealed from a default judgment without seeking relief under N.D. R. Civ. P. 60(b), the Supreme Court's review was limited to whether irregularities of procedure or process appeared on the face of the judgment roll. On the basis of its review, the Supreme Court concluded no irregularities of process or procedure appeared on the face of the judgment roll. State v. Goodale, 2016 ND 35, 876 N.W.2d 46, 2016 N.D. LEXIS 37 (N.D. 2016).

Copy of Judgment.

The judgment is the record in the book, not the instrument typewritten and signed by clerk, but typewritten instrument is included in judgment roll and denominated the copy of judgment. Groth v. Ness, 65 N.D. 580, 260 N.W. 700, 1935 N.D. LEXIS 143 (N.D. 1935).

Decision of Trial Court.

It is duty of clerk of district court to include the decision of trial court as part of judgment roll in all cases where a decision has been filed. Garr, Scott & Co. v. Spaulding, 2 N.D. 414, 51 N.W. 867, 1892 N.D. LEXIS 30 (N.D. 1892).

Faulty Affidavit.

Judgment roll containing affidavit stating that whereabouts of defendant was not known showed no service and judgment was void and subject to direct or collateral impeachment. Krumenacker v. Andis, 38 N.D. 500, 165 N.W. 524, 1917 N.D. LEXIS 45 (N.D. 1917).

Final Judgment.

A final judgment does not become such and has no force nor effect until entered by the clerk in the judgment book. In re Weber, 4 N.D. 119, 59 N.W. 523, 28 L.R.A. 621 (1894), distinguished, Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757 (1899) and In re Lemery's Estate, 15 N.D. 312, 107 N.W. 365, 1906 N.D. LEXIS 38 (N.D. 1906).

Order entered irregularly in the judgment book, and embodying the final judicial determination of the action by the court, was sufficient in substance as a judgment. Cameron v. Great N. Ry., 8 N.D. 124, 77 N.W. 1016, 1898 N.D. LEXIS 49 (N.D. 1898).

Insufficient Record.

Where evidence is not brought up in the record, the supreme court cannot determine alleged error based on failure to instruct on a specific issue. Isensee Motors v. Godfrey, 61 N.D. 435, 238 N.W. 550, 1931 N.D. LEXIS 293 (N.D. 1931).

Insufficient Roll.

Absence of settled statement of case or certificate of trial judge identifying and certifying the record is such a defect as to preclude appeal to supreme court. In re Heiden's Estate, 79 N.D. 395, 57 N.W.2d 242, 1953 N.D. LEXIS 48 (N.D. 1953).

Judge’s Signature.

Failure to sign the judgment did not invalidate it. Gould v. Duluth & Dakota Elevator Co., 3 N.D. 96, 54 N.W. 316, 1893 N.D. LEXIS 2 (N.D. 1893).

Judgment for Costs.

It was not error to enter a separate judgment for the costs incurred in supreme court on a former appeal. Gould v. Duluth & Dakota Elevator Co., 3 N.D. 96, 54 N.W. 316, 1893 N.D. LEXIS 2 (N.D. 1893).

Juvenile Commitment.

Judgment roll on judgment authorizing commitment of child to state training school should include such basic jurisdictional papers as petition and summons. State v. Schelin, 59 N.D. 386, 230 N.W. 9, 1930 N.D. LEXIS 153 (N.D. 1930).

Order Denying Motion.

An order denying a motion to quash a writ of mandamus is not a part of a judgment roll unless it is made so by the statement of the case. Mooney v. Donovan, 9 N.D. 93, 81 N.W. 50 (1899); explained, Ellingson v. Northwestern Jobbers' Credit Bureau, 58 N.D. 754, 227 N.W. 360, 1929 N.D. LEXIS 279 (N.D. 1929).

Order Striking Answer.

An order striking out an answer in a proceeding to divide a county involved the merits and necessarily affected the judgment. State ex rel. Minehan v. Meyers, 19 N.D. 804, 124 N.W. 701, 1910 N.D. LEXIS 9 (N.D. 1910).

Proof of Judgment.

Fact that judgment in favor of creditor suing under it was rendered before same court and judge was not ground for dispensing with proof of judgment. Amundson v. Wilson, 11 N.D. 193, 91 N.W. 37, 1902 N.D. LEXIS 200 (N.D. 1902).

Statement of Case.

An order denying a motion to vacate the service of a summons on a foreign corporation included in the settled statement of the case may be reviewed on appeal from the judgment. Ellingson v. Northwestern Jobbers' Credit Bureau, 58 N.D. 754, 227 N.W. 360, 1929 N.D. LEXIS 279 (N.D. 1929).

Absence of Decision.

If the decision of trial court is not in the judgment roll, in the absence of an explanation, the supreme court will presume that no decision of the district court was ever filed. Garr, Scott & Co. v. Spaulding, 2 N.D. 414, 51 N.W. 867, 1892 N.D. LEXIS 30 (N.D. 1892).

Affidavit for Continuance.

Affidavit for continuance was not part of the judgment roll and had to be made a part of a bill of exceptions in order for supreme court to review its sufficiency. Everett v. Buchanan, 6 N.W. 439, 2 Dakota 249, 1880 Dakota LEXIS 4 (Dakota 1880).

Challenge to Roll.

Motion to dismiss appeal was denied where certified judgment roll contained statement of case, judgment, findings, pleadings, notice of appeal, and undertaking, and only challenge was to certification of statement of case. Funderburg v. Young, 68 N.D. 481, 281 N.W. 87, 1938 N.D. LEXIS 136 (N.D. 1938).

Contents.

Rulings of court in admitting or excluding evidence, instructions to jury, judge’s minutes or stenographer’s notes, depositions or affidavits were not part of record unless made so by bill of exceptions. St. Croix Lumber Co. v. Pennington, 11 N.W. 497, 2 Dakota 467, 1881 Dakota LEXIS 7 (Dakota 1881).

Neither clerk nor judge can attach any papers to judgment roll which are not prescribed by statute, and judge’s certificate cannot make such papers a part of the record. St. Croix Lumber Co. v. Pennington, 11 N.W. 497, 2 Dakota 467, 1881 Dakota LEXIS 7 (Dakota 1881).

Exceptions taken, settled, signed, and filed after entry of judgment, though not part of technical judgment roll, became part of record on appeal by operation of law. St. Croix Lumber Co. v. Pennington, 11 N.W. 497, 2 Dakota 467, 1881 Dakota LEXIS 7 (Dakota 1881).

Where bill of exceptions had been settled, signed, and filed with clerk before entry of judgment, it became part of judgment roll. St. Croix Lumber Co. v. Pennington, 11 N.W. 497, 2 Dakota 467, 1881 Dakota LEXIS 7 (Dakota 1881).

The technical judgment roll consists of summons, pleadings, verdict or decision, and judgment. St. Croix Lumber Co. v. Pennington, 11 N.W. 497, 2 Dakota 467, 1881 Dakota LEXIS 7 (Dakota 1881).

Uncertified evidence will not be considered as part of the judgment roll proper which the supreme court will review on appeal. Fargo v. Palmer, 29 N.W. 463, 4 Dakota 232, 1886 Dakota LEXIS 8 (Dakota 1886).

Transcript of evidence taken upon trial of action, as had been extended by official stenographer, depositions and evidence excluded at trial, were not part of the judgment roll and subject to motion to strike from record. Wood v. Nissen, 2 N.D. 26, 49 N.W. 103, 1891 N.D. LEXIS 21 (N.D. 1891).

Justice documents, subpoenas, motion for continuance and supporting affidavits, and memorandum of costs were not part of judgment roll. Schomberg v. Long, 15 N.D. 506, 108 N.W. 332, 1906 N.D. LEXIS 61 (N.D. 1906).

An order taxing costs is not a part of the record and cannot be reviewed upon appeal from the judgment, in the absence of a bill of exceptions or statement. Schomberg v. Long, 15 N.D. 506, 108 N.W. 332, 1906 N.D. LEXIS 61 (N.D. 1906).

Trial judge’s written memorandum stating concise ground on which his ruling is based constitutes a part of judgment roll. Crisp v. State Bank, 32 N.D. 263, 155 N.W. 78, 1915 N.D. LEXIS 62 (N.D. 1915).

A request for instructions is not a part of the judgment roll and cannot be reviewed on appeal unless it is incorporated in the statement of the case. Guild v. More, 32 N.D. 432, 155 N.W. 44, 1915 N.D. LEXIS 58 (N.D. 1915).

Judgment roll includes a motion for a new trial. Weigel v. Powers Elevator Co., 50 N.D. 776, 198 N.W. 121, 1924 N.D. LEXIS 30 (N.D. 1924).

Copy of Judgment.

The judgment is the record in the book, not the instrument typewritten and signed by clerk, but typewritten instrument is included in judgment roll and denominated the copy of judgment. Groth v. Ness, 65 N.D. 580, 260 N.W. 700, 1935 N.D. LEXIS 143 (N.D. 1935).

Decision of Trial Court.

It is duty of clerk of district court to include the decision of trial court as part of judgment roll in all cases where a decision has been filed. Garr, Scott & Co. v. Spaulding, 2 N.D. 414, 51 N.W. 867, 1892 N.D. LEXIS 30 (N.D. 1892).

Faulty Affidavit.

Judgment roll containing affidavit stating that whereabouts of defendant was not known showed no service and judgment was void and subject to direct or collateral impeachment. Krumenacker v. Andis, 38 N.D. 500, 165 N.W. 524, 1917 N.D. LEXIS 45 (N.D. 1917).

Final Judgment.

A final judgment does not become such and has no force nor effect until entered by the clerk in the judgment book. In re Weber, 4 N.D. 119, 59 N.W. 523, 28 L.R.A. 621 (1894), distinguished, Oliver v. Wilson, 8 N.D. 590, 80 N.W. 757 (1899) and In re Lemery's Estate, 15 N.D. 312, 107 N.W. 365, 1906 N.D. LEXIS 38 (N.D. 1906).

Order entered irregularly in the judgment book, and embodying the final judicial determination of the action by the court, was sufficient in substance as a judgment. Cameron v. Great N. Ry., 8 N.D. 124, 77 N.W. 1016, 1898 N.D. LEXIS 49 (N.D. 1898).

Insufficient Record.

Where evidence is not brought up in the record, the supreme court cannot determine alleged error based on failure to instruct on a specific issue. Isensee Motors v. Godfrey, 61 N.D. 435, 238 N.W. 550, 1931 N.D. LEXIS 293 (N.D. 1931).

Insufficient Roll.

Absence of settled statement of case or certificate of trial judge identifying and certifying the record is such a defect as to preclude appeal to supreme court. In re Heiden's Estate, 79 N.D. 395, 57 N.W.2d 242, 1953 N.D. LEXIS 48 (N.D. 1953).

Judge’s Signature.

Failure to sign the judgment did not invalidate it. Gould v. Duluth & Dakota Elevator Co., 3 N.D. 96, 54 N.W. 316, 1893 N.D. LEXIS 2 (N.D. 1893).

Judgment for Costs.

It was not error to enter a separate judgment for the costs incurred in supreme court on a former appeal. Gould v. Duluth & Dakota Elevator Co., 3 N.D. 96, 54 N.W. 316, 1893 N.D. LEXIS 2 (N.D. 1893).

Juvenile Commitment.

Judgment roll on judgment authorizing commitment of child to state training school should include such basic jurisdictional papers as petition and summons. State v. Schelin, 59 N.D. 386, 230 N.W. 9, 1930 N.D. LEXIS 153 (N.D. 1930).

Order Denying Motion.

An order denying a motion to quash a writ of mandamus is not a part of a judgment roll unless it is made so by the statement of the case. Mooney v. Donovan, 9 N.D. 93, 81 N.W. 50 (1899); explained, Ellingson v. Northwestern Jobbers' Credit Bureau, 58 N.D. 754, 227 N.W. 360, 1929 N.D. LEXIS 279 (N.D. 1929).

Order Striking Answer.

An order striking out an answer in a proceeding to divide a county involved the merits and necessarily affected the judgment. State ex rel. Minehan v. Meyers, 19 N.D. 804, 124 N.W. 701, 1910 N.D. LEXIS 9 (N.D. 1910).

Proof of Judgment.

Fact that judgment in favor of creditor suing under it was rendered before same court and judge was not ground for dispensing with proof of judgment. Amundson v. Wilson, 11 N.D. 193, 91 N.W. 37, 1902 N.D. LEXIS 200 (N.D. 1902).

Statement of Case.

An order denying a motion to vacate the service of a summons on a foreign corporation included in the settled statement of the case may be reviewed on appeal from the judgment. Ellingson v. Northwestern Jobbers' Credit Bureau, 58 N.D. 754, 227 N.W. 360, 1929 N.D. LEXIS 279 (N.D. 1929).

Applicability.

This section is effective only as against interests in real property and does not speak to vendor’s interests, which are personalty. In re Scherbenske, 71 B.R. 403, 1987 Bankr. LEXIS 419 (Bankr. D.N.D. 1987).

After-Acquired Property.

The liens of judgments of different dates have equal rank as to after-acquired lands of the judgment debtor. Zink v. James River Nat'l Bank, 58 N.D. 1, 224 N.W. 901, 1929 N.D. LEXIS 174 (N.D. 1929).

A district court judgment, when docketed, becomes a lien on all of the judgment debtor’s realty, except his homestead, in the county where the judgment is docketed, and on all realty which he may acquire at any time thereafter within the period of redemption. Aberle v. Merkel, 70 N.D. 89, 291 N.W. 913, 1940 N.D. LEXIS 150 (N.D. 1940).

Alimony Payments.

District court could not declare judgment awarding divorced wife alimony, payable in installments, to be a lien on all of husband’s property, without existence of judgment for unpaid installments. Leifert v. Wolfer, 74 N.D. 746, 24 N.W.2d 690, 1946 N.D. LEXIS 97 (N.D. 1946).

Attachable Interest.

Where judgment debtor held merely the naked legal title as trustee and equitable and beneficial title was in debtor’s wife, lien of judgment did not attach to the land. Redman v. Biewer, 78 N.D. 120, 48 N.W.2d 372, 1951 N.D. LEXIS 78 (N.D. 1951).

Bank Property.

A judgment against a bank directing the payment of money does not become a lien on real property owned by the bank. Baird v. Strobeck, 54 N.D. 268, 209 N.W. 348, 1926 N.D. LEXIS 144 (N.D. 1926).

Conflict of Interests.

A judgment lien against the interest of a judgment debtor under a contract for deed is inferior to the right of the owner of an unrecorded assignment of the contract as security for a bona fide debt. McKenzie County v. Casady, 55 N.D. 475, 214 N.W. 461, 1927 N.D. LEXIS 115 (N.D. 1927).

Discharge in Bankruptcy.

No lien on account of debts discharged in bankruptcy proceeding can attach to real property acquired subsequent to discharge. Ellis v. Fiske, 60 N.D. 142, 232 N.W. 891, 1930 N.D. LEXIS 219 (N.D. 1930).

Divorce Judgment.

Lien of judgment in divorce action, which required husband to pay wife’s household bills, attorneys’ fees and costs, on all real estate owned or subsequently acquired by husband, expired ten years after docketing of judgment, unless renewed. Leifert v. Wolfer, 74 N.D. 746, 24 N.W.2d 690, 1946 N.D. LEXIS 97 (N.D. 1946).

Equitable Interests.

Docketing of a judgment does not create a lien on equitable interest in real property held by the judgment debtor. Cummings v. Duncan, 22 N.D. 534, 134 N.W. 712, 1912 N.D. LEXIS 40 (N.D. 1912).

Execution.

An execution may be issued to the sheriff of any county where the judgment is docketed. Minkler v. United States Sheep Co., 4 N.D. 507, 62 N.W. 594, 1895 N.D. LEXIS 47 (N.D. 1895).

Foreclosure Decree.

Judgment for foreclosure of vendor’s lien on real property coupled with usual decree of foreclosure ordering sale and application of proceeds was not a judgment directing payment of money within meaning of this statute. Schafer v. Olson, 50 N.D. 1, 132 N.W. 645, 1911 N.D. LEXIS 138 (N.D. 1911).

Foreign Judgment.

The filing of a foreign money judgment in a county where the judgment debtor has an interest in real property constitutes a lien on the debtor’s interest in that property. Erway v. Deck, 1999 ND 7, 588 N.W.2d 862, 1999 N.D. LEXIS 9 (N.D. 1999).

Future Interests.

A person vested with title to land through the will of his father, though the land is subject to the life estate of the mother, is the owner of the real property within the meaning of the statute. John Leslie Paper Co. v. Wheeler, 23 N.D. 477, 137 N.W. 412, 1912 N.D. LEXIS 110 (N.D. 1912).

Homestead.

A judgment does not become a lien against a homestead not existent at the time the judgment is docketed. First State Bank v. Fischer, 67 N.D. 400, 272 N.W. 752, 1937 N.D. LEXIS 92 (N.D. 1937).

A judgment can be effective against the excess value of property constituting a homestead only by means of a special method of sale after appraisement as provided for in section 47-18-04. In re Peterson, 80 B.R. 167, 1987 Bankr. LEXIS 1879 (Bankr. D.N.D. 1987).

Levy of Execution.

A levy of execution without a sale of real property results in the judgment creditor having a lien, not an immediate right to possession, and no title is transferred by the lien to the property. CIT Group v. Travelers Ins. Co., 504 N.W.2d 565, 1993 N.D. LEXIS 156 (N.D. 1993).

Levy Unnecessary.

Where judgment roll is filed and docketed, judgment becomes lien on real property of judgment debtor and sheriff may sell such real property under execution, without a levy, by filing a notice with register of deeds [now recorder]. Winslow v. Klundt, 51 N.D. 808, 201 N.W. 169, 1924 N.D. LEXIS 85 (N.D. 1924); FINCH v. JACKSON, 57 N.D. 17, 220 N.W. 130, 1928 N.D. LEXIS 91 (N.D. 1928).

Quiet Title Action.

Judgment in action to quiet title is binding on subsequent grantee even though grantor recorded deed prior to recording or docketing of judgment in former action. Casey v. Corwin, 71 N.W.2d 553, 1955 N.D. LEXIS 122 (N.D. 1955).

Statute of Limitations.

At expiration of ten years, judgment ceases to be a lien on real estate. Merchants Nat'l Bank v. Braithwaite, 7 N.D. 358, 75 N.W. 244, 1898 N.D. LEXIS 62 (N.D. 1898).

The lien of a judgment expires ten years from the date of the docketing thereof in the county where it is rendered. Lenhart v. Lynn, 50 N.D. 87, 194 N.W. 937, 1923 N.D. LEXIS 80 (N.D. 1923).

To satisfy an execution by levy on real property, the levy must be made and the sale completed during the continuance of the judgment lien. Depositors' Holding Co. v. Winschel, 60 N.D. 71, 232 N.W. 599, 1930 N.D. LEXIS 209 (N.D. 1930).

The lien of a judgment is purely statutory and expires ten years from the date of its docketing in the county where it was rendered, unless it was renewed. Groth v. Ness, 65 N.D. 580, 260 N.W. 700, 1935 N.D. LEXIS 143 (N.D. 1935).

Statutory Lien.

A judgment which, in whole or in part, directs the payment of a specified, fixed, and determined sum of money, may become a lien, purely statutory, under provisions of this statute. Agrest v. Agrest, 75 N.D. 318, 27 N.W.2d 697, 1947 N.D. LEXIS 70 (N.D. 1947).

A judgment lien is perfected as against nonhomestead real property by the mere act of docketing. In re Peterson, 80 B.R. 167, 1987 Bankr. LEXIS 1879 (Bankr. D.N.D. 1987).

Superior Rights.

Mortgagee under unrecorded deeds given in satisfaction of indebtedness had right superior to state’s judgment lien for premiums from compensation insurance owed by mortgagor. Agricultural Credit Corp. v. State, 74 N.D. 71, 20 N.W.2d 78, 1945 N.D. LEXIS 53 (N.D. 1945).

Unrecorded Title.

This statute merely creates lien against property of debtor who is titleholder of record and has no application against grantor whose title, and that of his grantee, is unrecorded. Redman v. Biewer, 78 N.D. 120, 48 N.W.2d 372, 1951 N.D. LEXIS 78 (N.D. 1951).

Validity of Judgment Lien.

Where wife, who had a lien on former husband’s mortgaged property, and was not properly served prior to foreclosure on the property had the foreclosure judgment amended, husband’s quiet title action was not an impermissible collateral attack upon the amended judgment; the amended foreclosure judgment did not establish the continued validity of wife’s judgment lien since the judgment stated only that any buyer takes subject to any rights she may have and court did not purport to determine what those rights were. Rohrich v. Rohrich, 434 N.W.2d 343, 1989 N.D. LEXIS 15 (N.D. 1989).

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).

Concurrent Remedy.

The statute creates a concurrent remedy and does not repeal section 28-01-32. Union Nat'l Bank v. Ryan, 23 N.D. 482, 137 N.W. 449, 1912 N.D. LEXIS 114 (N.D. 1912).

Excessive Interest.

Affidavit which claimed interest due in excess of amount allowed by law at time affidavit was filed did not operate as a renewal. Swanson v. Flynn, 75 N.D. 597, 31 N.W.2d 320, 1948 N.D. LEXIS 85 (N.D. 1948).

Formalities.

Failure to set forth names of parties plaintiff and defendant, number of judgment book and page of entry is fatal to affidavit of renewal. Groth v. Ness, 65 N.D. 580, 260 N.W. 700, 1935 N.D. LEXIS 143 (N.D. 1935).

Where plaintiff obtained a default judgment against defendant in 1998 and where plaintiff in 2010—two years after the 1998 judgment was cancelled—filed an affidavit attempting to renew the judgment under N.D.C.C. § 28-20-21, the trial court erred in permitting the judgment’s renewal. A party seeking to renew its judgment had to substantially comply with the statutory procedure. Plaintiff failed to file its renewal affidavit within 90 days preceding the expiration of 10 years from the first docketing of its 1998 judgment against defendant, and plaintiff’s 1998 judgment had been cancelled of record for almost two years before plaintiff sought to renew it. F/S Mfg. v. Kensmoe, 2011 ND 113, 798 N.W.2d 853, 2011 N.D. LEXIS 112 (N.D. 2011).

Incomplete Affidavit.

Affidavit which set forth title of action and date judgment was rendered was ineffective and did not renew the judgment. Swanson v. Flynn, 75 N.D. 597, 31 N.W.2d 320, 1948 N.D. LEXIS 85 (N.D. 1948).

Affidavit of renewal which made no mention of fact that one of judgment creditors had died before affidavit was made, and that no personal representative had been appointed was ineffective as a renewal. Swanson v. Flynn, 75 N.D. 597, 31 N.W.2d 320, 1948 N.D. LEXIS 85 (N.D. 1948).

Period of Renewal.

The filing of a sufficient affidavit to renew the lien of a judgment, pursuant to statute, operates to renew the lien of the judgment for a period of ten years from the time of docketing such affidavit. Berg v. Torgerson, 100 N.W.2d 153, 1959 N.D. LEXIS 121 (N.D. 1959).

11 U.S.C.S. § 108(c) applies to the renewal of state court judgments. Nonetheless, the time for renewing a state court judgment does not expire until the later of the applicable state law or 30 days after the termination of the automatic stay. F/S Mfg. v. Kensmoe, 2011 ND 113, 798 N.W.2d 853, 2011 N.D. LEXIS 112 (N.D. 2011).

Statute of Limitations.

Absence of judgment debtor from state tolls statute of limitations and judgment will support action against debtor after ten years have elapsed. Union Nat'l Bank v. Ryan, 23 N.D. 482, 137 N.W. 449, 1912 N.D. LEXIS 114 (N.D. 1912).

An execution issued and levy made while the judgment is still alive does not have effect of continuing lien of the judgment. Depositors' Holding Co. v. Winschel, 60 N.D. 71, 232 N.W. 599, 1930 N.D. LEXIS 209 (N.D. 1930).

Lien of judgment directing payment of money, in whole or in part, expires ten years from date it is docketed unless renewed according to statute. Leifert v. Wolfer, 74 N.D. 746, 24 N.W.2d 690, 1946 N.D. LEXIS 97 (N.D. 1946).

Collateral References.

Absence of judgment debtor from state as suspending or tolling running of period of limitations as to judgment, 27 A.L.R.2d 839.

Part payment or promise to pay judgment as affecting time for revival, 45 A.L.R.2d 967.

Reviving, renewing, or extending judgment by order entered after expiration of statutory limitation period on motion or proceeding commenced within such period, 52 A.L.R.2d 672.

Effect of Execution and Levy.

The issuance of an execution upon a judgment and a levy thereunder while the lien of the judgment is still in existence do not operate to continue the life of the lien beyond the time when it will expire by statute and proceedings to enforce the lien after it has expired are a nullity. Berg v. Torgerson, 100 N.W.2d 153, 1959 N.D. LEXIS 121 (N.D. 1959).

Invalid Affidavit.

Invalid affidavit of renewal does not operate to continue the lien for another period of ten years. Swanson v. Flynn, 75 N.D. 597, 31 N.W.2d 320, 1948 N.D. LEXIS 85 (N.D. 1948).

Judgment Canceled.

District court did not err in denying appellant ex-wife’s motion to find appellee ex-husband in contempt for failing to comply with a 1993 divorce judgment that awarded her personal property because a contempt of court motion could not be maintained based upon a divorce judgment that expired 10 years after entry without being renewed. Because the judgment had not been renewed, it was canceled by operation of law under N.D.C.C. § 28-20-35, and for a contempt finding under N.D.C.C. § 14-05-25.1, a violation of a valid and existing court order, judgment, or decree had to exist. Blomdahl v. Blomdahl, 2011 ND 78, 796 N.W.2d 649, 2011 N.D. LEXIS 78 (N.D. 2011).

Where plaintiff obtained a default judgment against defendant in 1998 and where plaintiff in 2010—two years after the 1998 judgment was cancelled—filed an affidavit attempting to renew the judgment under N.D.C.C. § 28-20-21, the trial court erred in permitting the judgment’s renewal. A party seeking to renew its judgment had to substantially comply with the statutory procedure. Plaintiff failed to file its renewal affidavit within 90 days preceding the expiration of 10 years from the first docketing of its 1998 judgment against defendant, and plaintiff’s 1998 judgment had been cancelled of record for almost two years before plaintiff sought to renew it. F/S Mfg. v. Kensmoe, 2011 ND 113, 798 N.W.2d 853, 2011 N.D. LEXIS 112 (N.D. 2011).

Statute of Limitations.

An execution issued and levy made while judgment is still alive does not have effect of continuing lien of the judgment. Depositors' Holding Co. v. Winschel, 60 N.D. 71, 232 N.W. 599, 1930 N.D. LEXIS 209 (N.D. 1930).

The lien of a judgment is purely statutory and expires ten years from the date of its docketing in the county where it was rendered, unless it was renewed. Groth v. Ness, 65 N.D. 580, 260 N.W. 700, 1935 N.D. LEXIS 143 (N.D. 1935).

Authority to Satisfy.

A clerk of the district court has no authority to satisfy a judgment except in the cases where the statute gives him express authority so to do. Milburn-Stoddard Co. v. Stickney, 14 N.D. 282, 103 N.W. 752, 1905 N.D. LEXIS 40 (N.D. 1905).

Compromise Settlement.

A statute giving an attorney of record authority to satisfy a judgment does not authorize him to compromise the judgment without the consent of the owner. Business Serv. Collection Bureau v. Yegen, 67 N.D. 51, 269 N.W. 46, 1936 N.D. LEXIS 149 (N.D. 1936).

Period of Satisfaction.

To satisfy an execution by levy on real property, the levy must be made and the sale completed during the continuance of the judgment lien. Depositors' Holding Co. v. Winschel, 60 N.D. 71, 232 N.W. 599, 1930 N.D. LEXIS 209 (N.D. 1930).

Pure Cost Judgment.

Payment of a pure cost judgment which does not in any way go to the merits of the case does not constitute a waiver of the right to appeal. Mr. G's Turtle Mt. Lodge, Inc. v. Roland Twp., 2002 ND 140, 651 N.W.2d 625, 2002 N.D. LEXIS 181 (N.D. 2002).

Satisfaction Requirements.

As the satisfaction of judgments signed by each of the claimants to certain insurance proceeds were not notarized or otherwise witnessed, acknowledged, or authenticated, they did not meet the requirements of this section and the judgment had not been formally satisfied of record. Nodak Mut. Ins. Co. v. Stegman, 2002 ND 113, 647 N.W.2d 133, 2002 N.D. LEXIS 135 (N.D. 2002).

Although property owner paid the judgment in favor of township and procured and filed a satisfaction of judgment, the satisfaction of judgment did not meet the requirements of this section because it was not notarized or otherwise witnessed and authenticated; accordingly, the judgment was not formally satisfied of record and an appeal was not jurisdictionally barred. Mr. G's Turtle Mt. Lodge, Inc. v. Roland Twp., 2002 ND 140, 651 N.W.2d 625, 2002 N.D. LEXIS 181 (N.D. 2002).

Service on Attorney.

After the entry of a judgment the authority of the attorney who secured the judgment ordinarily expires, but there is an exception to the rule where service is made upon the attorney for the purpose of reopening the judgment, such service constituting service upon the party. Beach v. Beach, 43 N.W. 701, 6 Dakota 371, 1889 Dakota LEXIS 24 (Dakota 1889).