CHAPTER 28-01 Time for Commencing Actions
28-01-01. Actions relating to real estate brought by state of North Dakota — Limitations.
The state of North Dakota will not sue any person for or in respect to any real property or the issues or profits thereof by reason of the right or title of the state to the same, unless:
- Such right or title has accrued within forty years before any action or other proceeding for the same shall be commenced; or
- The state or those from whom it claims have received the rents and profits of such real property or of some part thereof within the space of forty years.
Source:
C. Civ. P. 1877, § 38; R.C. 1895, § 5185; R.C. 1899, § 5185; R.C. 1905, § 6771; C.L. 1913, § 7359; R.C. 1943, § 28-0101.
Derivation:
Wait’s (N.Y.) Code, 75; Harston’s (Cal.) Practice, 315.
Notes to Decisions
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).
DECISIONS UNDER PRIOR LAW
Actions for Benefit of State.
The limitations prescribed by former chapter 12-01 applied to actions brought in the name of the state or for its benefit. Weber v. Weber, 77 N.D. 142, 42 N.W.2d 67, 1950 N.D. LEXIS 113 (N.D. 1950).
28-01-02. Actions relating to real estate brought by person claiming through grant from state — Limitations.
No action may be brought for or in respect to real property by any person claiming by virtue of a grant from this state, unless the same might have been commenced by this state as herein specified in case such grant had not been issued or made.
Source:
C. Civ. P. 1877, § 39; R.C. 1895, § 5186; R.C. 1899, § 5186; R.C. 1905, § 6772; C.L. 1913, § 7360; R.C. 1943, § 28-0102.
Derivation:
Wait’s (N.Y.) Code, 76; Harston’s (Cal.) Practice, 316.
28-01-03. Actions relating to real estate when state grant judicially declared void — Limitations.
When a grant of real property has been issued or made by this state and the same is declared void by the final judgment of a court of competent jurisdiction, an action for the recovery of the premises so conveyed may be brought either by this state or by any subsequent grantee of the premises, or the subsequent grantee’s heirs or assigns, within twenty years after the date on which such judgment was rendered, but not after that period.
Source:
C. Civ. P. 1877, § 40; R.C. 1895, § 5187; R.C. 1899, § 5187; R.C. 1905, § 6773; C.L. 1913, § 7361; R.C. 1943, § 28-0103.
Derivation:
Wait’s (N.Y.) Code, 77; Harston’s (Cal.) Practice, 317.
28-01-04. Actions for recovery or possession of real property — Limitations.
No action for the recovery of real property or for the possession thereof may be maintained, unless the plaintiff, or the plaintiff’s ancestor, predecessor, or grantor, was seized or possessed of the premises in question within twenty years before the commencement of such action.
Source:
C. Civ. P. 1877, § 41; R.C. 1895, § 5188; R.C. 1899, § 5188; R.C. 1905, § 6774; C.L. 1913, § 7362; R.C. 1943, § 28-0104.
Derivation:
Wait’s (N.Y.) Code, 78; Harston’s (Cal.) Practice, 318.
Notes to Decisions
- Adverse Possession.
- Application.
- Application.
- Burden of Proof.
- Easement by Prescription.
- Mortgages.
- Possession.
- Possession by Acquiescence.
- Prescription.
- Property Held by Trustee.
- Quiet Title Claims.
- Right of Action.
- Title by Prescription.
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).
28-01-05. Actions founded upon title to real estate or to rents or services therefrom — Limitations.
No claim for relief, or defense, or counterclaim to an action founded upon the title to real property, or to rents or service out of the same, is effectual unless it appears that the person prosecuting the action or interposing the defense or counterclaim, or under whose title the action is prosecuted or the defense or counterclaim is made, or the ancestor, predecessor, or grantor of such person, was seized or possessed of the premises in question within twenty years before the committing of the act in respect to which such action is prosecuted or such defense or counterclaim is made.
Source:
C. Civ. P. 1877, § 42; R.C. 1895, § 5189; R.C. 1899, § 5189; R.C. 1905, § 6775; C.L. 1913, § 7363; R.C. 1943, § 28-0105; S.L. 1985, ch. 82, § 46.
Derivation:
Wait’s (N.Y.) Code, 79; Harston’s (Cal.) Practice, 319.
Notes to Decisions
- Compensation for Taking of Land.
- Possession Required.
- Quieting Title.
- Reformation of Lease.
- Wild Grazing Land.
- Burden of Proof.
- Indian Country.
- Prescription.
- Record Title.
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).
28-01-06. Actions founded upon entry upon real estate — Limitations.
No entry upon real estate may be deemed sufficient or valid as a claim unless an action is commenced thereon within one year after the making of such entry and within twenty years from the time when the right to make such entry descended or accrued.
Source:
C. Civ. P. 1877, § 43; R.C. 1895, § 5190; R.C. 1899, § 5190; R.C. 1905, § 6776; C.L. 1913, § 7364; R.C. 1943, § 28-0106.
Derivation:
Wait’s (N.Y.) Code, 80; Harston’s (Cal.) Practice, 320.
28-01-07. Presumption against adverse possession of real estate.
In every action for the recovery of real property or for the possession thereof, the person establishing a legal title to the premises must be presumed to have been possessed thereof within the time required by law, and the occupation of such premises by any other person must be deemed to have been under and in subordination to the legal title, unless it appears that such premises have been held and possessed adversely to such legal title for twenty years before the commencement of such action.
Source:
C. Civ. P. 1877, § 44; R.C. 1895, § 5191; R.C. 1899, § 5191; R.C. 1905, § 6777; C.L. 1913, § 7365; R.C. 1943, § 28-0107.
Derivation:
Wait’s (N.Y.) Code, 81; Harston’s (Cal.) Practice, 321.
Notes to Decisions
—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.
28-01-08. Adverse possession when based upon written instrument.
Whenever it appears that the occupant, or those under whom the occupant claims, entered into the possession of premises under a claim of title exclusive of any other right, founding such claim upon a written instrument as being a conveyance of the premises in question, or upon the decree or judgment of a competent court, and that there has been a continued occupation and possession of the premises included in such instrument, decree or judgment, or of some part of such premises, under such claim for twenty years, the premises so included must be deemed to have been held adversely.
Source:
C. Civ. P. 1877, § 45; R.C. 1895, § 5192; R.C. 1899, § 5192; R.C. 1905, § 6778; C.L. 1913, § 7366; R.C. 1943, § 28-0108.
Derivation:
Wait’s (N.Y.) Code, 82; Harston’s (Cal.) Practice, 322.
Notes to Decisions
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).
28-01-09. Acts constituting adverse possession based upon a written instrument.
For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument or upon a judgment or decree, land must be deemed to have been so possessed and occupied in each of the following cases:
- When it has been usually cultivated or improved;
- When it has been protected by a substantial enclosure;
- When, although not enclosed, it has been used for the supply of fuel or of fencing timber for the purposes of husbandry, or the ordinary use of the occupant; or
- When a known farm or a single lot has been partly improved, the portion of such farm or lot that may have been left not cleared or not enclosed according to the usual course and custom of the adjoining country, must be deemed to have been occupied for the same length of time as the part improved and cultivated, but when the premises consist of two or more contiguous lots, the possession of one lot may not be deemed a possession of any other of such lots.
Source:
C. Civ. P. 1877, §§ 45, 46; R.C. 1895, §§ 5192, 5193; R.C. 1899, §§ 5192, 5193; R.C. 1905, §§ 6778, 6779; C.L. 1913, §§ 7366, 7367; R.C. 1943, § 28-0109.
Derivation:
Wait’s (N.Y.) Code, 82, 83; Harston’s (Cal.) Practice, 322, 323.
Notes to Decisions
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.
28-01-10. Extent of real estate affected by adverse possession not based on written instrument.
When there has been an actual continued occupation of premises under a claim of title exclusive of any other right, but not founded upon a written instrument or upon a judgment or decree, the premises actually occupied and no other must be deemed to have been held adversely.
Source:
C. Civ. P. 1877, § 47; R.C. 1895, § 5194; R.C. 1899, § 5194; R.C. 1905, § 6780; C.L. 1913, § 7368; R.C. 1943, § 28-0110.
Derivation:
Wait’s (N.Y.) Code, 84; Harston’s (Cal.) Practice, 324.
Notes to Decisions
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.
28-01-11. Acts constituting adverse possession not based upon a written instrument.
For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument nor upon a judgment or decree, land shall be deemed to have been possessed and occupied only in the following cases:
- When it has been protected by a substantial enclosure; or
- When it has been usually cultivated or improved.
Source:
C. Civ. P. 1877, § 48; R.C. 1895, § 5195; R.C. 1899, § 5195; R.C. 1905, § 6781; C.L. 1913, § 7369; R.C. 1943, § 28-0111.
Derivation:
Wait’s (N.Y.) Code, 85; Harston’s (Cal.) Practice, 325.
Notes to Decisions
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.
28-01-12. When possession of tenant presumed to be possession of landlord.
Whenever the relation of landlord and tenant has existed, the possession of the tenant must be deemed the possession of the landlord, until the expiration of twenty years from the termination of the tenancy, or, when there has been no written lease, until the expiration of twenty years from the time of the last payment of rent, notwithstanding that such tenant may have acquired another title or may have claimed to hold adversely to the tenant’s landlord. Such presumptions may not be made after the periods herein limited.
Source:
C. Civ. P. 1877, § 49; R.C. 1895, § 5196; R.C. 1899, § 5196; R.C. 1905, § 6782; C.L. 1913, § 7370; R.C. 1943, § 28-0112.
Derivation:
Wait’s (N.Y.) Code, 86; Harston’s (Cal.) Practice, 326.
Notes to Decisions
- Adverse Possession Before Rental Agreement.
- Former Tenants.
- Purchase of Property at Tax Sale.
- Reentry of Land.
- Tenant Acquiring Other Title.
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.
28-01-13. Possession not affected by descent.
The right of a person to the possession of any real property is not impaired nor affected by a descent being cast in consequence of the death of a person in possession of such property.
Source:
C. Civ. P. 1877, § 50; R.C. 1895, § 5197; R.C. 1899, § 5197; R.C. 1905, § 6783; C.L. 1913, § 7371; R.C. 1943, § 28-0113.
Derivation:
Wait’s (N.Y.) Code, 87; Harston’s (Cal.) Practice, 327.
Notes to Decisions
Title to Real Estate Not Affected.
This section does not affect title to real estate, and was intended to abolish common-law doctrine of “descent cast”, which concerned right to possession of land. Cranston v. Winters, 238 N.W.2d 647, 1976 N.D. LEXIS 192 (N.D. 1976).
28-01-14. Disabilities extend limitations on actions affecting real estate.
If a person who is entitled to maintain any of the actions affecting real estate mentioned in this chapter, or entitled to interpose a defense or counterclaim to such an action, or entitled to make an entry upon real property is:
- Under the age of eighteen years;
- Insane; or
- Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense for a term less than for life,
at the time the person’s title first descends or the person’s claim for relief or right of entry first accrues, or when such defense or counterclaim might be interposed, the time of such disability is not a part of the time in this chapter limited for the commencement of such action, or the making of such entry, or the interposing of such defense or counterclaim. However, the time so limited cannot be extended more than ten years after the disability ceases or after the death of the person so disabled.
Source:
C. Civ. P. 1877, § 51; R.C. 1895, § 5198; R.C. 1899, § 5198; R.C. 1905, § 6784; C.L. 1913, § 7372; R.C. 1943, § 28-0114; S.L. 1973, ch. 120, § 30; 1985, ch. 82, § 47.
Derivation:
Wait’s (N.Y.) Code, 88; Harston’s (Cal.) Practice, 328.
Notes to Decisions
Minors.
The provisions of this section that the time during which one was a minor should not be a part of the time “in this chapter” limited for commencing action or making entry on real property did not apply to N.D.C.C. § 47-06-03, which was not part of such chapter. Schauble v. Schulz, 137 F. 389, 1905 U.S. App. LEXIS 4551 (8th Cir. N.D. 1905), 69 C.C.A. 581 (8th Cir. 1905).
Collateral References.
Proof of unadjudged incompetency which prevents running of statute of limitations, 9 A.L.R.2d 964, 967.
Time of existence of mental incompetency which will prevent or suspend running of statute of limitations, 41 A.L.R.2d 726.
Imprisonment of party to civil action as tolling statute of limitations, 77 A.L.R.3d 735.
Surviving parent’s minority as tolling limitation period on suit for child’s wrongful death, 54 A.L.R.4th 362.
Emotional or psychological “blocking” or repression as tolling running of statute of limitations, 11 A.L.R.5th 588.
Effect of appointment of legal representative for person under mental disability on running of state statute of limitations against such person, 111 A.L.R.5th 159.
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.
28-01-15. Actions having ten-year limitations.
The following actions must be commenced within ten years after the claim for relief has accrued:
- An action upon a judgment or decree of any court of the United States or of any state or territory within the United States;
- An action upon a contract contained in any conveyance or mortgage of or instrument affecting the title to real property except a covenant of warranty, an action upon which must be commenced within ten years after the final decision against the title of the covenantor; and
- Any action or proceeding for the foreclosure of a mortgage upon real estate.
Source:
C. Civ. P. 1877, §§ 52, 53; R.C. 1895, §§ 5199, 5200; R.C. 1899, §§ 5199, 5200; S.L. 1901, ch. 120, § 1; R.C. 1905, §§ 6785, 6786; C.L. 1913, §§ 7373, 7374; R.C. 1943, § 28-0115; S.L. 1959, ch. 256, § 2; 1963, ch. 256, § 5; 1985, ch. 82, § 48.
Derivation:
Wait’s (N.Y.) Code, 89, 90; Harston’s (Cal.) Practice, 335, 336.
Cross-References.
Ten-year limitation of lis pendens notice, § 28-05-07.1.
Notes to Decisions
- Accrual of Actions.
- Affirmative Defense.
- Child Support.
- Constructive Trust.
- Contract Affecting Title to Real Property.
- County Debt.
- Equitable Estoppel.
- Foreclosure of Chattel Mortgage.
- Foreign Judgment.
- Joint and Several Note.
- Judgment Debtor Absent from State.
- Judgment Liens.
- Judgments.
- Lessening of Statutory Period.
- Liens.
- Quiet Title Actions.
- Royalties.
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).
28-01-16. Actions having six-year limitations.
The following actions must be commenced within six years after the claim for relief has accrued:
- An action upon a contract, obligation, or liability, express or implied, subject to the provisions of sections 28-01-15 and 41-02-104.
- An action upon a liability created by statute, other than a penalty or forfeiture, when not otherwise expressly provided.
- An action for trespass upon real property.
- An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property.
- An action for criminal conversation or for any other injury to the person or rights of another not arising upon contract, when not otherwise expressly provided.
- An action for relief on the ground of fraud in all cases both at law and in equity, the claim for relief in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.
Source:
C. Civ. P. 1877, § 54; R.C. 1895, § 5201; R.C. 1899, § 5201; S.L. 1903, ch. 2, § 1; R.C. 1905, § 6787; C.L. 1913, § 7375; S.L. 1935, ch. 233, § 1; R.C. 1943, § 28-0116; S.L. 1965, ch. 296, § 9; 1977, ch. 279, § 1; 1985, ch. 82, § 49.
Derivation:
Wait’s (N.Y.) Code, 91; Harston’s (Cal.) Practice, 337.
Cross-References.
Action by depositor or creditor against bank on account or claim, see §§ 6-08-23, 6-08-24.
Criminal mischief or willful destruction of property by minor, judgment in civil action for damages not subject to statutes of limitation, see § 32-03-09.2.
Notes to Decisions
- In General.
- Accident or Trauma.
- Accrual of Cause of Action.
- Action Against State.
- Applicability.
- Applicability of Section 28-01-24.
- Assessments of Gross Production Taxes.
- Assignment of Right to Sue.
- Auto Accidents.
- Breach of Fiduciary Duty.
- Breach of Warranty.
- Chattel Mortgage.
- Cities.
- Civil Rights Actions.
- Collection of Child Support Arrearages Through the Tax Intercept Procedure.
- Contracts.
- Conversion of Bonds.
- Counterclaims.
- Counties.
- Death of Tort-feasor.
- Deceit.
- Discovery.
- Discrimination.
- Effect of Section 28-01-24.
- Embezzled Funds.
- Equitable Estoppel.
- Foreign Actions.
- Fraud.
- Guardian’s Bond.
- Implied Trust.
- Indemnity Contract.
- Insurance Contract.
- Inverse Condemnation.
- Joint Debts.
- Loss of Consortium.
- Maritime Tort.
- Mechanic’s Lien.
- Multiple Causes in Pleading.
- Mutual Account.
- Negligence.
- No-Fault Insurance Actions.
- Non-Professional Negligence.
- Notes.
- Notice of Existence of Claim.
- Old-Age Assistance.
- Partnership.
- Product Liability.
- Promise to Lend Money.
- Purpose of Statute.
- Question for Court.
- Recovery on Account.
- Reformation of Deed.
- Royalties.
- School Districts.
- Simple Open Account.
- Surety Bond.
- Tax Lien.
- Tax Refund.
- Tax Sale.
- Termination of lease.
- Tolling.
- Tortious Interference With Business.
- Townships.
- Tradespersons.
- Trespassing Animals.
- Untimely Service.
- Vesting of Title.
- Workmen’s Compensation.
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).
28-01-17. Actions having three-year limitations — Exceptions.
The following actions must be commenced within three years after the claim for relief has accrued:
- An action against a sheriff or coroner upon a liability incurred by the doing of an act in the sheriff’s or coroner’s official capacity and by virtue of that office, or by the omission of an official duty, including the nonpayment of money collected upon an execution. However, this subsection does not apply to an action for an escape.
- An action upon a statute for a penalty or forfeiture, if the action is given to the party aggrieved, or to such party and the state, unless the statute imposing it prescribes a different limitation.
- An action for the foreclosure of a construction lien.
Source:
C. Civ. P. 1877, § 55; R.C. 1895, § 5202; R.C. 1899, § 5202; R.C. 1905, § 6788; C.L. 1913, § 7376; R.C. 1943, § 28-0117; S.L. 1977, ch. 279, § 2; 1985, ch. 82, § 50; 1989, ch. 161, § 2; 2009, ch. 293, § 1.
Derivation:
Wait’s (N.Y.) Code, 92; Harston’s (Cal.) Practice, 339.
Cross-References.
Political subdivisions, limitation of actions under act governing liability of, see § 32-12.1-10.
Notes to Decisions
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.
28-01-18. Actions having two-year limitations.
The following actions must be commenced within two years after the claim for relief has accrued:
- An action for libel, slander, assault, battery, or false imprisonment.
- An action upon a statute for a forfeiture or penalty to the state.
- An action for the recovery of damages resulting from malpractice; 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 unless discovery was prevented by the fraudulent conduct of the physician or licensed hospital. This limitation is subject to the provisions of section 28-01-25.
- An action for injuries done to the person of another, when death ensues from such injuries, and the claim for relief must be deemed to have accrued at the time of the death of the party injured; provided, however, that when death ensues as the result of malpractice, the claim for relief is deemed to have accrued at the time of the discovery of the malpractice. However, the limitation will not be extended beyond six years of the act or omission of alleged malpractice by a nondiscovery thereof unless discovery was prevented by the fraudulent conduct of the physician or hospital.
- An action for recovery of damages arising under chapter 5-01, and the claim for relief is deemed to have accrued at the time of the alleged offense. This limitation does not apply to any claim for relief existing at the time of the enactment of this subsection.
Source:
C. Civ. P. 1877, § 56; S.L. 1893, ch. 87, § 1; R.C. 1895, § 5203; R.C. 1899, § 5203; R.C. 1905, § 6789; C.L. 1913, § 7377; R.C. 1943, § 28-0118; S.L. 1969, ch. 292, § 1; 1975, ch. 284, § 1; 1981, ch. 331, § 1; 1985, ch. 82, § 51.
Derivation:
Wait’s (N.Y.) Code, 93; Harston’s (Cal.) Practice, 340.
Cross-References.
Political subdivisions, limitation on actions under act governing liability of, see § 32-12.1-10.
Wrongful death actions, see chapter 32-21.
Notes to Decisions
- Constitutionality.
- Accrual of Cause of Action.
- Appellate Review.
- Continuous Torts.
- Defamation.
- Discovery of Injury.
- Diversity Action.
- Equitable Tolling.
- Extension of Limitation Period.
- False Imprisonment.
- Federal Action.
- Fraudulent Concealment of Cause of Action.
- Legal Malpractice.
- Loss of Consortium.
- Malpractice.
- Multiple Causes in Pleadings.
- Ordinary Negligence and Malpractice Distinguished.
- Political Subdivision Action.
- Survival Action.
- Tax Action.
- Workmen’s Compensation.
- Wrongful Death.
- Wrongful Death Caused by Medical Malpractice.
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).
28-01-19. Actions having one-year limitations.
An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process must be commenced within one year after the claim for relief has accrued.
Source:
C. Civ. P. 1877, § 57; R.C. 1895, § 5204; R.C. 1899, § 5204; R.C. 1905, § 6790; C.L. 1913, § 7378; R.C. 1943, § 28-0119; S.L. 1985, ch. 82, § 52.
Derivation:
Wait’s (N.Y.) Code, 94; Harston’s (Cal.) Practice, 340.
28-01-20. Limitations on actions for forfeitures brought by persons or state.
An action upon a statute for a penalty or forfeiture given in whole or in part to any person who will prosecute for the same must be commenced within one year after the commission of the offense and if the action is not commenced within the year by a private party, it may be commenced within two years thereafter in behalf of the state by the attorney general, or by the state’s attorney of the county where the offense was committed.
Source:
C. Civ. P. 1877, § 59; R.C. 1895, § 5206; R.C. 1899, § 5206; R.C. 1905, § 6792; C.L. 1913, § 7380; R.C. 1943, § 28-0120.
Derivation:
Wait’s (N.Y.) Code, 96; Harston’s (Cal.) Practice, 340.
Notes to Decisions
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.
28-01-21. Limitations on actions founded on right of homestead.
No action, defense, or counterclaim founded upon a right of homestead in property conveyed or encumbered, otherwise than as provided by the law in force at the time of the execution of such conveyance or encumbrance, and for which no declaration of homestead has been filed previous to the execution of such conveyance or encumbrance, is effectual or maintainable, unless such action is commenced, or such defense or counterclaim interposed, within two years after the execution of such conveyance or encumbrance. Such limitation does not apply if the homestead claimant, at the time of the execution of such conveyance or encumbrance, was in the actual possession of the property claimed and had not quit such possession previous to the commencement of such action, or the interposing of such defense or counterclaim.
Source:
S.L. 1905, ch. 3, § 1; R.C. 1905, § 5054; C.L. 1913, § 5610; R.C. 1943, § 28-0121.
Notes to Decisions
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).
28-01-22. Limitations on actions not specifically provided for.
An action for relief not otherwise provided for must be commenced within ten years after the claim for relief has accrued.
Source:
C. Civ. P. 1877, § 60; R.C. 1895, § 5207; R.C. 1899, § 5207; R.C. 1905, § 6793; C.L. 1913, § 7381; R.C. 1943, § 28-0122; S.L. 1985, ch. 82, § 53.
Derivation:
Wait’s (N.Y.) Code, 97; Harston’s (Cal.) Practice, 343.
Cross-References.
Action to annul marriage, limitation of time, see § 14-04-02.
Political subdivisions, limitation on actions under act governing liability of, see § 32-12.1-10.
Notes to Decisions
- Adverse Possession.
- Applicability.
- Compensation for Land Taken.
- Foreclosure of Mortgage.
- Inverse Condemnation.
- Nonpossessory Right in Real Estate.
- Quiet Title Action.
- Redemption of Mortgage.
- Termination of lease.
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.
28-01-22.1. Actions against state — Limitation.
When not otherwise specifically provided by law, an action against the state or its employees and officials acting within the scope of their employment or office must be commenced within three years after the claim for relief has accrued. For purposes of this section, the claim for relief is deemed to have accrued at the time it is discovered or might have been discovered in the exercise of reasonable diligence. This may not be construed as a waiver of immunity.
Source:
S.L. 1983, ch. 359, § 1; 1985, ch. 82, § 54; 1987, ch. 383, § 1.
Notes to Decisions
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).
28-01-23. Limitations in chapter applicable to state.
The limitations prescribed in this chapter apply to actions brought in the name of the state, or for its benefit, in the same manner as to actions by private parties.
Source:
C. Civ. P. 1877, § 61; R.C. 1895, § 5208; R.C. 1899, § 5208; R.C. 1905, § 6794; C.L. 1913, § 7382; R.C. 1943, § 28-0123.
Derivation:
Wait’s (N.Y.) Code, 98; Harston’s (Cal.) Practice, 345.
Notes to Decisions
- Assessments for Gross Production Taxes.
- Old-Age Assistance.
- Political Subdivisions.
- State Bonding Fund.
- Tax Liens.
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.
28-01-24. Limitations on claims for relief fraudulently concealed.
When, by fraud or fraudulent concealment, a party against whom a claim for relief exists prevents the person in whose favor such claim for relief exists from obtaining knowledge thereof, the latter may commence an action within one year from the time the claim for relief is discovered by the latter or might have been discovered by the latter in the exercise of diligence. Such fraud or fraudulent concealment must be established to the satisfaction of the court or jury, as the case may be, by a fair preponderance of the evidence.
Source:
S.L. 1935, ch. 243, §§ 1, 2; R.C. 1943, § 28-0124; S.L. 1985, ch. 82, § 55.
Notes to Decisions
- Applicability.
- Commencement of Period of Limitation.
- Effect of Section 28-01-16.
- Fraudulent Concealment As Estoppel.
- Purpose.
- Wrongful Death Actions.
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.
28-01-25. Disabilities extend limitations on actions generally — Exceptions.
If a person who is entitled to bring an action other than for the recovery of real property, or for a penalty or forfeiture, or against a sheriff or other officer for an escape is:
- Under the age of eighteen years;
- Insane; or
- Imprisoned on a criminal charge or in execution under the sentence of a criminal court for a term less than for life,
at the time the claim for relief accrues, the time of such disability is not a part of the time limited for the commencement of the action. However, the period within which the action must be brought cannot be extended more than five years by any such disability except infancy, nor can it be extended in any case longer than one year after the disability ceases. In cases alleging professional malpractice, the extension of the limitation due to infancy is limited to twelve years.
Source:
C. Civ. P. 1877, § 64; R.C. 1895, § 5211; R.C. 1899, § 5211; R.C. 1905, § 6797; C.L. 1913, § 7385; R.C. 1943, § 28-0125; S.L. 1973, ch. 120, § 31; 1983, ch. 360, § 1; 1985, ch. 82, § 56.
Derivation:
Wait’s (N.Y.) Code, 101; Harston’s (Cal.) Practice, 352.
Cross-References.
Criminal mischief or willful destruction of property by minor, judgment in civil action for damages not subject to statutes of limitation, see § 32-03-09.2.
Notes to Decisions
- Applicability.
- Discovery.
- Effect of Section 28-01-31.
- Legislative Intent.
- Notice of Claim Against Political Subdivision.
- Prisoner Status.
- Proof of Incompetence.
- Repressed Memory.
- Wrongful Death.
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).
28-01-25.1. Limitation on actions alleging childhood sexual abuse.
Notwithstanding section 28-01-25, a claim for relief resulting from childhood sexual abuse must be commenced within ten years after the plaintiff knew or reasonably should have known that a potential claim exists resulting from alleged childhood sexual abuse. For purposes of this section, “childhood sexual abuse” means any act committed by the defendant against the plaintiff which occurred when the plaintiff was under eighteen years of age and which would have been a violation of chapter 12.1-20 or 12.1-27.2. In a claim for relief under this section, the plaintiff is not required to establish which act in a continuous series of sexual abuse acts by the defendant caused the injury.
Source:
S.L. 2011, ch. 231, § 1; 2015, ch. 234, § 1, effective August 1, 2015.
Effective Date.
The 2015 amendment of this section by section 1 of chapter 234, S.L. 2015 became effective August 1, 2015.
28-01-26. Limitation in case of death.
If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof and the claim for relief survives, an action may be commenced by that person’s representatives after the expiration of that time and within one year from that person’s death. If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof and the claim for relief survives and is not one based upon a claim which may be filed proceeding under title 30.1, an action may be commenced against that person’s personal representative after the expiration of that time and within one year after the issuing of letters.
Source:
C. Civ. P. 1877, § 65; R.C. 1895, § 5212; R.C. 1899, § 5212; R.C. 1905, § 6798; C.L. 1913, § 7386; R.C. 1943, § 28-0126; S.L. 1949, ch. 214, § 1; 1957 Supp., § 28-0126; S.L. 1973, ch. 257, § 25; 1985, ch. 82, § 57.
Derivation:
Wait’s (N.Y.) Code, 102; Harston’s (Cal.) Practice, 353.
Notes to Decisions
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.
28-01-26.1. Survival of claims for relief.
No action or claim for relief, except for breach of promise, alienation of affections, libel, and slander, abates by the death of a party or of a person who might have been a party had such death not occurred.
Source:
S.L. 1949, ch. 213, § 1; R.C. 1943, 1957 Supp., § 28-01261; S.L. 1985, ch. 82, § 58.
Notes to Decisions
- Abatement of Actions.
- Action Against Estate.
- Action by Husband.
- Actions Incidental to Divorce.
- Appellate Proceedings.
- Automobile Accident.
- Statute of Limitations.
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.
28-01-27. Limitation in case of war.
When a person is a subject or a citizen of a country at war with the United States, the time of the continuance of the war is not a part of the period limited for the commencement of any action.
Source:
C. Civ. P. 1877, § 66; R.C. 1895, § 5213; R.C. 1899, § 5213; R.C. 1905, § 6799; C.L. 1913, § 7387; R.C. 1943, § 28-0127.
Derivation:
Wait’s (N.Y.) Code, 103; Harston’s (Cal.) Practice, 354.
28-01-28. Limitation when judgment reversed.
If an action is commenced within the time prescribed therefor and the judgment therein is reversed on appeal, the plaintiff, or, if the plaintiff dies and the claim for relief survives, the plaintiff’s heirs or representatives, may commence a new action within one year after the reversal.
Source:
C. Civ. P. 1877, § 67; R.C. 1895, § 5214; R.C. 1899, § 5214; R.C. 1905, § 6800; C.L. 1913, § 7388; R.C. 1943, § 28-0128; S.L. 1985, ch. 82, § 59.
Derivation:
Wait’s (N.Y.) Code, 104; Harston’s (Cal.) Practice, 355.
28-01-29. Limitation when commencement of action stayed.
When the commencement of an action is stayed by injunction or other order of a court, or by a statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action.
Source:
C. Civ. P. 1877, § 68; R.C. 1895, § 5215; R.C. 1899, § 5215; R.C. 1905, § 6801; C.L. 1913, § 7389; R.C. 1943, § 28-0129.
Derivation:
Wait’s (N.Y.) Code, 105; Harston’s (Cal.) Practice, 356.
Notes to Decisions
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).
28-01-30. When limitation for disability available.
One may not avail oneself of a disability, unless it existed when that person’s claim for relief accrued.
Source:
C. Civ. P. 1877, § 69; R.C. 1895, § 5216; R.C. 1899, § 5216; R.C. 1905, § 6802; C.L. 1913, § 7390; R.C. 1943, § 28-0130; S.L. 1985, ch. 82, § 60.
Derivation:
Wait’s (N.Y.) Code, 106; Harston’s (Cal.) Practice, 357.
Collateral References.
Emotional or psychological “blocking” or repression as tolling running of statute of limitations, 11 A.L.R.5th 588.
28-01-31. Limitation for coexisting disabilities.
When two or more disabilities coexist at the time the claim for relief accrues, the limitation does not attach until they are all removed.
Source:
C. Civ. P. 1877, § 70; R.C. 1895, § 5217; R.C. 1899, § 5217; R.C. 1905, § 6803; C.L. 1913, § 7391; R.C. 1943, § 28-0131; S.L. 1985, ch. 82, § 61.
Derivation:
Wait’s (N.Y.) Code, 107; Harston’s (Cal.) Practice, 358.
Notes to Decisions
Effect of Section 28-01-25.
Section 28-01-25 and this section allow a multiply disabled mentally incompetent person, whose claim accrues six years or more before she becomes an adult, to have an extension of six years for filing 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).
28-01-32. Absence from state tolls limitations — Exception.
If any person is out of this state at the time a claim for relief accrues against that person, an action on such claim for relief may be commenced in this state at any time within the term limited in this chapter for the bringing of an action on such claim for relief after the return of such person into this state. If any person departs from and resides out of this state and remains continuously absent therefrom for the space of one year or more after a claim for relief has accrued against that person, the time of that person’s absence may not be taken as any part of the time limited for the commencement of an action on such claim for relief. The provisions of this section, however, do not apply to the foreclosure of real estate mortgages by action or otherwise and do not apply if this state’s courts have jurisdiction over a person during the person’s absence.
Source:
C. Civ. P. 1877, § 63; R.C. 1895, § 5210; R.C. 1899, § 5210; S.L. 1905, ch. 5, § 1; R.C. 1905, § 6796; S.L. 1911, ch. 192, § 1; C.L. 1913, § 7384; R.C. 1943, § 28-0132; S.L. 1985, ch. 82, § 62; 1989, ch. 391, § 1.
Derivation:
Wait’s (N.Y.) Code, 100; Harston’s (Cal.) Practice, 351.
Notes to Decisions
- Applicability.
- Application of 1989 Amendment.
- Availability of Long-Arm Service of Process.
- Constitutionality of Former Section.
- Foreclosure of Mortgages.
- Judgments.
- Loans.
- Military Service.
- Nonresident Motorists.
- Service by Publication.
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.
28-01-33. Actions against directors or stockholders of moneyed corporations or banking associations for statutory penalties or forfeiture — Limitation.
This chapter does not affect actions against directors or stockholders of a moneyed corporation or banking association to recover a penalty or forfeiture imposed, or to enforce a liability created, by law, but such actions must be brought within six years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached or the liability was created.
Source:
C. Civ. P. 1877, § 72; R.C. 1895, § 5219; R.C. 1899, § 5219; R.C. 1905, § 6805; C.L. 1913, § 7393; R.C. 1943, § 28-0133.
Derivation:
Wait’s (N.Y.) Code, 109; Harston’s (Cal.) Practice, 359.
Notes to Decisions
Certificate of Deposit.
An action was maintainable under this section against stockholders upon a certificate of deposit, given in renewal of a pre-existing certificate where the renewal certificate was issued within statutory period. Corrington v. Crosby, 56 N.D. 74, 215 N.W. 924, 1927 N.D. LEXIS 72 (N.D. 1927).
28-01-34. Actions upon judgments rendered in courts of state not maintainable without leave of court.
No action may be commenced upon a judgment rendered in any court of this state between the same parties within nine years after its rendition, without leave of the court granted for good cause shown and upon notice to the adverse party.
Source:
C. Civ. P. 1877, § 35; R.C. 1895, § 5182; R.C. 1899, § 5182; R.C. 1905, § 6768; C.L. 1913, § 7356; R.C. 1943, § 28-0134.
Derivation:
Wait’s (N.Y.) Code, 71.
Notes to Decisions
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).
28-01-35. Bank notes.
This chapter does not affect actions to enforce the payment of bills, notes, or other evidence of debt, issued by moneyed corporations, or issued or put in circulation as money.
Source:
C. Civ. P. 1877, § 71; R.C. 1895, § 5218; R.C. 1899, § 5218; R.C. 1905, § 6804; C.L. 1913, § 7392; R.C. 1943, § 28-0135.
Derivation:
Wait’s (N.Y.) Code, 108; Harston’s (Cal.) Practice, 359.
28-01-36. New promise must be in writing in order to extend limitation — Effect of any payment.
No acknowledgment or promise is sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this chapter, unless the same is contained in some writing signed by the party to be charged thereby, but this section does not alter the effect of any payment of principal or interest.
Source:
C. Civ. P. 1877, § 73; R.C. 1895, § 5220; R.C. 1899, § 5220; R.C. 1905, § 6806; C.L. 1913, § 7394; R.C. 1943, § 28-0136.
Derivation:
Wait’s (N.Y.) Code, 110; Harston’s (Cal.) Practice, 360.
Notes to Decisions
- Acknowledgment.
- Balance Due on Account.
- Joint Debt.
- Mortgage.
- Note Secured by Mortgage.
- Partial Payments.
- Renewal Note.
- Statute of Limitations not Tolled.
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).
28-01-37. When claim for relief upon open account accrues.
In an action brought to recover a balance due upon a mutual open, and current account, when there have been reciprocal demands between the parties, the claim for relief is deemed to have accrued from the time of the last item proved in the account on either side.
Source:
C. Civ. P. 1877, § 58; R.C. 1895, § 5205; R.C. 1899, § 5205; R.C. 1905, § 6791; C.L. 1913, § 7379; R.C. 1943, § 28-0137; S.L. 1985, ch. 82, § 63.
Derivation:
Wait’s (N.Y.) Code, 95; Harston’s (Cal.) Practice, 344.
Notes to Decisions
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.
28-01-38. When action deemed commenced.
An action is commenced as to each defendant when the summons is served on that defendant, or on a codefendant who is a joint contractor or otherwise united in interest with that defendant. An attempt to commence an action is equivalent to the commencement thereof within the meaning of this chapter when the summons, with the intent that it shall be actually served, is delivered:
- To the sheriff or other officer of the county in which the defendants or one of them usually or last resided; or
- To the sheriff or other officer, if a corporation is defendant, of the county in which was situated the principal place of business of such corporation, or in which its general business was transacted, or in which it kept an office for the transaction of business.
Such an attempt must be followed within sixty days by the first publication of the summons or the service thereof.
Source:
C. Civ. P. 1877, § 62; R.C. 1895, § 5209; R.C. 1899, § 5209; R.C. 1905, § 6795; C.L. 1913, § 7383; R.C. 1943, § 28-0138.
Derivation:
Wait’s (N.Y.) Code, 99; Harston’s (Cal.) Practice, 350.
Cross-References.
Commencement of action, see N.D.R.Civ.P., Rule 3.
Notes to Decisions
- Corporate Defendant.
- Election Contest.
- Endorsement of Summons.
- Foreclosure of Liens.
- Issuance of Summons.
- Publication of Summons.
- Service of Summons.
- Service Upon Foreign Corporation.
- Statute of Limitations.
- “United in Interest” Construed.
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).
28-01-39. Defense of limitations to be taken by answer.
The objection that an action was not commenced within the time limited by law can only be taken by answer.
Source:
C. Civ. P. 1877, § 37; R.C. 1895, § 5184; R.C. 1899, § 5184; R.C. 1905, § 6770; C.L. 1913, § 7358; R.C. 1943, § 28-0139.
Derivation:
Wait’s (N.Y.) Code, 74; Harston’s (Cal.) Practice, 312.
Notes to Decisions
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).
28-01-40. Reports of loss through pesticide application required. [Repealed]
Repealed by S.L. 1985, ch. 103, § 10.
28-01-41. Contents of verified reports of damage. [Repealed]
Repealed by S.L. 1985, ch. 103, § 10.
28-01-42. Cancellation or enforcement of contract for sale of real estate — Limitation — When time begins to run — Commencement of proceedings.
No action or proceeding may be maintained by a person out of possession to cancel or enforce any contract for the sale or conveyance of real estate, after twenty years from the date of said contract, as shown by the record of such instrument, or after twenty years from the date of recording of any instrument which describes or refers to such contract, which itself is not of record, unless the record of such contract or other instrument shows that less than ten years have elapsed since the due date of the last payment on the indebtedness or part thereof, secured thereby, or since the claim for relief has accrued thereon, or unless the record shows an extension of the maturity of the instrument or of the debt or a part thereof, and that ten years from the expiration of the time of such extension has not yet expired. The limitation of this section may not be extended by the nonresidence of any plaintiff or defendant or of any vendor or vendee, nor by reason of any payment made after the due date of the last payment on the indebtedness or part thereof, nor by reason of any disability of any party interested in the contract.
Source:
S.L. 1959, ch. 255, § 1; 1985, ch. 82, § 64.
Notes to Decisions
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).
28-01-43. Foreclosure of real estate mortgage — Limitation — When time begins to run — Commencement of proceedings. [Repealed]
Repealed by S.L. 1963, ch. 256, § 4.
28-01-44. Limitation of action — Person submitting plans for improvements to real estate.
-
No action, whether in contract, oral or written, in tort or otherwise, to recover damages:
- For any deficiency in the design, planning, supervision, or observation of construction or construction of an improvement to real property;
- For injury to property, real or personal, arising out of any such deficiency; or
- For injury to the person or for wrongful death arising out of any such deficiency,
- Notwithstanding the provisions of subsection 1, in the case of such an injury to property or the person or such an injury causing wrongful death, which injury occurred during the tenth year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within two years after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than twelve years after the substantial completion of construction of such an improvement.
- The limitation prescribed by this section may not be asserted by way of defense by any person in actual possession or the control, as owner, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.
- As used in this section, the term “person” means an individual, corporation, partnership, business trust, unincorporated organization, association, or joint stock company.
may be brought against any person performing or furnishing the design, planning, supervision, or observation of construction, or construction of such an improvement more than ten years after substantial completion of such an improvement.
Nothing in this section may be construed as extending the period prescribed by the laws of this state for the bringing of any action.
Source:
S.L. 1967, ch. 254, § 1 to 4; 1989, ch. 69, § 35.
Notes to Decisions
- Constitutionality.
- Grain Bin.
- Legislative Intention.
- Manufacturers of Building Materials.
- Persons Protected.
- Rooftop Furnace.
- Standard of Review.
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).
28-01-45. Limitation of action against abstracter.
An action founded upon an error or omission in an abstract may be commenced against an abstracter at any time within twenty years after the date of the certificate of the abstract.
Source:
S.L. 1969, ch. 390, § 3.
28-01-46. Expert opinion required to maintain an action based upon alleged medical negligence except in obvious cases.
Any action for injury or death alleging professional negligence by a physician, nurse, hospital, or nursing, basic, or assisted living facility licensed by this state or by any other health care organization, including an ambulatory surgery center or group of physicians operating a clinic or outpatient care facility, must be dismissed without prejudice on motion unless the plaintiff serves upon the defendant an affidavit containing an admissible expert opinion to support a prima facie case of professional negligence within three months of the commencement of the action. The court may set a later date for serving the affidavit for good cause shown by the plaintiff if the plaintiff’s request for an extension of time is made before the expiration of the three-month period following commencement of the action. The expert’s affidavit must identify the name and business address of the expert, indicate the expert’s field of expertise, and contain a brief summary of the basis for the expert’s opinion. This section does not apply to unintentional failure to remove a foreign substance from within the body of a patient, or performance of a medical procedure upon the wrong patient, organ, limb, or other part of the patient’s body, or other obvious occurrence.
Source:
S.L. 1981, ch. 332, § 1; 1997, ch. 272, § 1; 2005, ch. 280, § 1; 2009, ch. 274, § 1.
Notes to Decisions
- Application.
- Dismissal Improper.
- Dismissal Proper.
- Legislative Intent.
- Obvious Occurrence Exception.
- Optometrist.
- Malpractice.
- Res Ipsa Loquitur.
- Sufficiency of Opinion.
- Wrong Organ Exception.
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).
28-01-46.1. Waiver of privilege for health care providers and informal discussion.
A party who commences an action for malpractice, error, mistake, or failure to cure, whether based on contract or tort, against a health care provider, as defined in section 32-42-01, or a health care facility, on the person’s own behalf or in a representative capacity, waives in that action any privilege existing under rule 503 of the North Dakota Rules of Evidence, as to any medical records, opinions, or other information in the possession of any other health care provider who has examined or cared for the party or other person whose health or medical condition has been placed in controversy in the action. The waiver must permit all defendants to the action, and their attorneys or authorized representatives, to examine the medical records, opinions, or other information and informally participate in a discussion with the health care provider, if the provider consents, regarding the medical records, opinions, or other information that appear reasonably calculated to lead to the discovery of admissible evidence as to any element of the action or the defense of the action. Any statements made by a health care provider during an informal discussion are not admissible, directly or by reference in direct or cross-examination of any witness, in any administrative, civil, or criminal proceeding. However, this section does not render inadmissible any statements obtained from the health care provider in discovery or any legal proceedings independent of the informal discussion which are otherwise admissible in the administrative, civil, or criminal proceeding.
The plaintiff’s attorney or authorized representative must have the opportunity to be present at any informal discussion. This requirement is satisfied if the defendant’s attorney serves a written notice on the plaintiff’s attorney at least fifteen days prior to the informal discussion stating the time, date, and location of the informal discussion. If the plaintiff’s attorney, after consultation with the defendant’s attorney, is unable to attend the discussion at the time or on the date specified in the notice or at some other agreed-upon date and time, the court in which the action is pending shall, upon motion of any party before the date specified in the notice, hold a scheduling conference to set a date and time for the informal discussion that will best serve the convenience of the parties and the health care provider and the interests of justice. Appropriate authorizations permitting access to the written medical record, informal discussion, and testimony at a deposition or trial must be provided by the party commencing the action at the time the action is commenced. If the party commencing the action fails to provide appropriate authorizations at the time the action is commenced, the health care provider or health care facility may use other means to obtain the records such as by subpoena or by seeking a court order. If alternative means to obtain a patient’s records are used, the court shall award reasonable costs incurred by the health care provider or health care facility in obtaining those records, including reasonable attorney’s fees.
Source:
S.L. 1997, ch. 273, § 1; 2003, ch. 211, § 18.
Law Reviews.
Implied Waiver of Physician and Psychotherapist-Patient Privilege in North Dakota Medical Malpractice and Personal Injury Litigation, 83 N.D. L. Rev. 855 (2007).
28-01-47. Limitation of action for asbestos claims.
- The legislative assembly finds that it is in the interest of the general public, particularly those persons who may bring claims regarding materials containing asbestos in public buildings and those against whom the claims may be brought, to set a specific date by which public building owners must bring a cause of action for removal or other abatement costs associated with the presence of asbestos in their buildings. By enactment of this statute of limitations, the legislative assembly does not imply that suits would otherwise be barred by an existing limitations period.
- Notwithstanding any other law to the contrary, any action to recover costs for removal and replacement of asbestos or materials containing asbestos from a public building; to recover costs for other measures taken to locate, correct, or ameliorate any problem related to asbestos in a public building; or for reimbursement for removal and replacement, correction, or amelioration of an asbestos problem in a public building, must be commenced prior to August 1, 1997. Any such action which would otherwise be barred before August 1, 1997, as a result of expiration of the applicable period of limitation, is revived or extended. An asbestos action revived or extended under this subsection must be commenced prior to August 1, 1997.
- For purposes of this section, “public building” means any building owned by any county, city, township, school district, park district, or any other unit of local government, the state or any agency, industry, institution, board, or department thereof.
Source:
S.L. 1993, ch. 323, § 1.
Notes to Decisions
School District.
Where a school district opted out of a class action suit against members of the asbestos industry, its subsequent suit was not barred. This statute is clear evidence of the legislature’s intent that the six-year statute of limitations not bar such claims. Adams Pub. Sch. Dist. v. Asbestos Corp., 7 F.3d 717, 1993 U.S. App. LEXIS 26592 (8th Cir. N.D. 1993).
28-01-48. Action based on real estate transaction duty — Three-year limitation.
An action for recovery of damages against a person licensed under chapter 43-23 which results from a breach of duty relating to a real estate transaction must be commenced within three years after the claim for relief has accrued.
Source:
S.L. 2005, ch. 281, § 1.
CHAPTER 28-01.1 Products Liability Act [Repealed]
[Repealed by S.L. 1993, ch. 324, § 5]
Note.
For present provisions, see chapter 28-01.3.
CHAPTER 28-01.2 Uniform Conflict of Laws — Limitations Act
28-01.2-01. Definition of terms.
As used in this chapter, unless the context otherwise requires:
- “Claim” means a right of action that may be asserted in a civil action or proceeding and includes a right of action created by statute.
- “State” means a state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, a foreign country, or a political subdivision of any of them.
Source:
S.L. 1985, ch. 345, § 1.
Notes to Decisions
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.
28-01.2-02. Conflict of laws — Limitation period.
-
Except as provided by section 28-01.2-04, if a claim is substantively based upon:
- The law of one other state, the limitation period of that state applies; or
- The law of more than one state, the limitation period of one of those states chosen by the law of conflict of laws of this state, applies.
- The limitation period of this state applies to all other claims.
Source:
S.L. 1985, ch. 345, § 2.
Notes to Decisions
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).
28-01.2-03. Rules applicable to computation of limitation period.
If the statute of limitations of another state applies to the assertion of a claim in this state, the other state’s relevant statutes and other rules of law governing tolling and accrual apply in computing the limitation period, but its statutes and other rules of law governing conflict of laws do not apply.
Source:
S.L. 1985, ch. 345, § 3.
28-01.2-04. Unfairness.
If the court determines that the limitation period of another state applicable under sections 28-01.2-02 and 28-01.2-03 is substantially different from the limitation period of this state and has not afforded a fair opportunity to sue upon, or imposes an unfair burden in defending against, the claim, the limitation period of this state applies.
Source:
S.L. 1985, ch. 345, § 4.
Notes to Decisions
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).
28-01.2-05. Existing and future claims.
This chapter applies to claims:
- Accruing after June 30, 1985; or
- Asserted in a civil action or proceeding more than one year after June 30, 1985, but it does not revive a claim barred before July 1, 1985.
Source:
S.L. 1985, ch. 345, § 5.
CHAPTER 28-01.3 Products Liability
28-01.3-01. Definitions.
As used in this chapter:
- “Manufacturer” means a person or entity who designs, assembles, fabricates, produces, constructs, or otherwise prepares a product or a component part of a product prior to the sale of the product to a user or consumer. The term includes any seller of a product who is owned in whole or significant part by the manufacturer or who owns, in whole or significant part, the manufacturer.
- “Product liability action” means any action brought against a manufacturer or seller of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formula, installation, preparation, assembly, testing, packaging, labeling, or sale of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or unintended use of any product, or the failure to provide proper instructions for the use of any product.
- “Seller” means any individual or entity, including a manufacturer, wholesaler, distributor, or retailer, who is engaged in the business of selling or leasing any product for resale, use, or consumption.
- “Unreasonably dangerous” means that the product is dangerous to an extent beyond which would be contemplated by the ordinary and prudent buyer, consumer, or user of that product in that community considering the product’s characteristics, propensities, risks, dangers, and uses, together with any actual knowledge, training, or experience possessed by that particular buyer, user, or consumer.
Source:
S.L. 1993, ch. 324, § 4.
Note.
As enacted, this section was numbered § 28-01.3-06. It was renumbered § 28-01.3-01 at the direction of the code revisor.
Notes to Decisions
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).
28-01.3-02. Limitation on ad damnum clause.
If a complaint filed in a products liability action prays for a recovery of money in an amount equal to or less than fifty thousand dollars, the amount must be stated. If a recovery of money in an amount greater than fifty thousand dollars is demanded, the pleading must state merely that recovery of reasonable damages in an amount greater than fifty thousand dollars is demanded. This action may be superseded by an amendment to the North Dakota Rules of Civil Procedure.
Source:
S.L. 1993, ch. 324, § 4.
Note.
As enacted, this section was numbered § 28-01.3-01. It was renumbered § 28-01.3-02 at the direction of the code revisor.
28-01.3-03. Alteration or modification of product is defense to action.
No manufacturer or seller of a product may be held liable in any products liability action in which a substantial contributing cause of the injury, death, or damage to property was an alteration or modification of the product, which occurred subsequent to the sale by the manufacturer or seller to the initial user or consumer, and which changed the purpose, use, function, design, or intended use or manner of use of the product from that for which the product was originally designed, tested, or intended.
Source:
S.L. 1993, ch. 324, § 4.
Note.
As enacted, this section was numbered § 28-01.3-02. It was renumbered § 28-01.3-03 at the direction of the code revisor.
Collateral References.
Products liability: automobile manufacturer’s liability for injuries caused by repairs made under manufacturer’s warranty, 40 A.L.R.4th 1218.
Validity and construction of products liability statute precluding or limiting recovery where product has been altered or modified after leaving hands of manufacturer or seller, 41 A.L.R.4th 47.
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: sufficiency of evidence to support product misuse defense in actions concerning wearing apparel, 52 A.L.R.4th 276.
Products liability: sufficiency of evidence to support product misuse defense in actions concerning electrical generation and transmission equipment, 55 A.L.R.4th 1010.
Products liability: sufficiency of evidence to support product misuse defense in actions concerning lawnmowers, 55 A.L.R.4th 1062.
Products liability: sufficiency of evidence to support product misuse defense in actions concerning food, drugs, and other products intended for ingestion, 58 A.L.R.4th 7.
Products liability: sufficiency of evidence to support product misuse defense in actions concerning cosmetics and other personal care products, 58 A.L.R.4th 40.
Products liability: sufficiency of evidence to support product misuse defense in actions concerning gas and electrical appliances, 58 A.L.R.4th 131.
Products liability: sufficiency of evidence to support product misuse defense in actions concerning bottles, cans, storage tanks, or other containers, 58 A.L.R.4th 160.
Products liability: sufficiency of evidence to support product misuse defense in actions concerning ladders and scaffolds, 59 A.L.R.4th 73.
Products liability: sufficiency of evidence to support product misuse defense in actions concerning weapons and ammunition, 59 A.L.R.4th 102.
Products liability: sufficiency of evidence to support product misuse defense in actions concerning building components and materials, 61 A.L.R.4th 156.
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: sufficiency of evidence to support product misuse defense in actions concerning commercial or industrial equipment and machinery, 64 A.L.R.4th 10.
Products liability: product misuse defense, 65 A.L.R.4th 263.
Products liability: injury caused by product as a result of being tampered with, 67 A.L.R.4th 964.
Products liability: admissibility of evidence of subsequent repairs or other remedial measures by third party other than defendant, 64 A.L.R.5th 119.
Products liability: paints, stains, and similar products, 69 A.L.R.5th 137.
28-01.3-04. Liability of nonmanufacturing sellers.
- In any products liability action maintained against a seller of a product who did not manufacture the product, the seller shall upon answering or otherwise pleading file an affidavit certifying the correct identity of the manufacturer of the product allegedly causing the personal injury, death, or damage to property.
-
The court shall order the dismissal of the claim against the certifying seller, unless the plaintiff can show any of the following:
- That the certifying seller exercised some significant control over the design or manufacture of the product, or provided instructions or warnings to the manufacturer relative to the alleged defect in the product which caused the personal injury, death, or damage to property.
- That the certifying seller had actual knowledge of the defect in the product which caused the personal injury, death, or damage to property.
- That the certifying seller created the defect in the product which caused the personal injury, death, or damage to property.
-
The plaintiff may at any time prior to the beginning of the trial move to vacate the order of dismissal and reinstate the certifying seller if the plaintiff can show any of the following:
- That the applicable statute of limitation bars a product liability action against the manufacturer of the product allegedly causing the injury, death, or damage.
- That the identity of the manufacturer given to the plaintiff by the certifying defendant was incorrect.
Source:
S.L. 1993, ch. 324, § 4; 2021, ch. 262, § 1, effective August 1, 2021.
Note.
As enacted, this section was numbered § 28-01.3-03. It was renumbered § 28-01.3-04 at the direction of the code revisor.
Notes to Decisions
Apparent Manufacturer Doctrine.
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).
Collateral References.
Applicability of Insurance Policies to Alleged Bodily Injury Arising from Use of Cellular Telephones, 32 A.L.R.6th 505.
Liability of Manufacturer, Distributor, or Seller for Injury Caused by Wheelchair. 54 A.L.R.6th 619.
28-01.3-05. Indemnity of seller.
If a product liability action is commenced against a seller, and it is alleged that a product was defectively designed, contained defectively manufactured parts, had insufficient safety guards, or had inaccurate or insufficient warning; that such condition existed when the product left the control of the manufacturer; that the seller has not substantially altered the product; and that the defective condition or lack of safety guards or adequate warnings caused the injury or damage complained of; the manufacturer from whom the product was acquired by the seller must be required to assume the cost of defense of the action, and any liability that may be imposed on the seller. The obligation to assume the seller’s cost of defense should also extend to an action in which the manufacturer and seller are ultimately found not liable.
Source:
S.L. 1993, ch. 324, § 4.
Note.
As enacted, this section was numbered § 28-01.3-04. It was renumbered § 28-01.3-05 at the direction of the code revisor.
Notes to Decisions
- Conditions on Right of Indemnity.
- Indemnity of Seller.
- Liberal Construction.
- Seller Who Is Also a Manufacturer.
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.
28-01.3-06. Determination of defective product.
No product may be considered to have a defect or to be in a defective condition, unless at the time the product was sold by the manufacturer or other initial seller, there was a defect or defective condition in the product which made the product unreasonably dangerous to the user or consumer.
Source:
S.L. 1993, ch. 324, § 4.
Note.
As enacted, this section was numbered § 28-01.3-05. It was renumbered § 28-01.3-06 at the direction of the code revisor.
Notes to Decisions
- Comparative Negligence.
- Condition at Time of Sale.
- Design.
- Jury Instructions.
- Long-Arm Jurisdiction.
- Negligence of User.
- Standard of Proof.
- Successor Corporation’s Liability.
- Unreasonably Dangerous.
- Warnings and Instructions.
- Warnings to Nonoperator.
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.
28-01.3-07. Declaration of legislative findings and intent.
- The legislative assembly finds that products liability reforms enacted in 1979, 1987, and 1993 have provided a needed degree of certainty in the laws governing civil actions against product manufacturers and sellers.
- In recent years it has become increasingly evident that there are still serious problems with the current civil justice system. As a result, there is an urgent need for additional legislation to establish clear and predictable rules with respect to certain matters relating to products liability actions.
- The purpose of sections 28-01.3-08 and 28-01.3-09 is to clarify and improve the method of determining responsibility for the payment of damages in products liability litigation; to restore balance and predictability between the consumer and the manufacturer or seller in product liability litigation; to bring about a more fair and equitable resolution of controversies in products liability litigation; to re-enact a statute of repose to provide a reasonable period of time for the commencement of products liability litigation after a manufacturer or seller has parted with possession of its product; to address problems that have been created by judicial interpretation of our previous enactments; to enact, with minor changes, several provisions of former chapter 28-01.1; and to simplify and provide an increased degree of certainty and predictability to our products liability laws.
Source:
S.L. 1995, ch. 305, § 1.
Notes to Decisions
Sellers.
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 pursuant to N.D.C.C. § 28-01.3-07. 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).
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).
28-01.3-08. Statute of limitation and repose.
- Except as provided in subsections 4 and 5, there may be no recovery of damages in a products liability action unless the injury, death, or property damage occurs within ten years of the date of initial purchase for use or consumption, or within eleven years of the date of manufacture of a product.
- This section applies to all persons, regardless of minority or other legal disability.
- If a manufacturer, wholesaler, or retailer issues a recall of a product in any state or becomes aware of any defect in a product at any time and fails to take reasonable steps to warn users of the product defect, the provisions of subsection 1 do not bar a products liability action against the manufacturer or seller by a user of the product who is subsequently injured or damaged as a result of the defect.
- An action to recover damages based on injury allegedly resulting from exposure to asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite, actinolite, or any combination thereof, must be commenced within three years after the injured person has been informed of discovery of the injury by competent medical authority and that the injury was caused by exposure to asbestos as described in this subsection, or within three years after the discovery of facts that would reasonably lead to the discovery, whichever is earlier. No action commenced under this subsection based on the doctrine of strict liability in tort may be commenced or maintained against any seller of a product that is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless the seller is also the manufacturer of the product or the manufacturer of the part of the product claimed to be defective.
- An action to recover damages based on injury to property allegedly resulting from the presence of products containing asbestos fibers of any type must be commenced within six years of the date upon which the owner of that property knew or should have known of facts giving rise to the cause of action.
Source:
S.L. 1995, ch. 305, § 1.
Notes to Decisions
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).
28-01.3-09. Rebuttable presumption against defects.
There is a rebuttable presumption that a product is free from any defect or defective condition if the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product were in conformity with government standards established for that industry or if no government standards exist then with applicable industry standards, which were in existence at the time the plans, designs, warnings, or instructions for the product or the methods and techniques of manufacturing, inspecting, and testing the product were adopted.
Source:
S.L. 1995, ch. 305, § 1.
Notes to Decisions
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).
28-01.3-10. Product liability actions and immunity for a firearm or ammunition manufacturer.
A firearm or ammunition manufacturer, importer, or dealer may not be held civilly liable for any physical or emotional injury, physical damage, or death as a third party for the acts of another person.
Source:
S.L. 2021, ch. 249, § 1, effective August 1, 2021.
CHAPTER 28-01.4 Aviation Manufacturer Products Liability
28-01.4-01. Definitions.
As used in this chapter:
- “Aircraft” means general aviation light craft that is powered and intended to fly above the ground; is designed to carry one person or more, but with a maximum seating capacity of fewer than twenty passengers; and weighs less than twelve thousand five hundred pounds [5669.9 kilograms].
- “Aircraft component” means a manufactured part or assembly intended for use in the construction, replacement, or repair of an aircraft. The term includes any complete aircraft subsystem, including the aircraft engine, that carries its own manufacturer’s warranty or services provided separately from the warranty of the manufacturer of the aircraft.
- “Aviation manufacturer” means a manufacturer of aircraft or aircraft components who has its place of manufacture and place of production of aircraft or aircraft components located within this state. The term includes a manufacturer located in this state who imports raw materials, components, and aircraft subassemblies from outside the state for manufacturing purposes. The term also includes a person who modifies, maintains, alters, repairs, or installs aircraft components in aircraft in accordance with federal aviation administration regulations and holds a repair station certificate issued by the federal aviation administration.
- “State-of-the-art product” means an aircraft or aircraft component manufactured by utilizing the most recent scientific, mechanical, and technological developments at the time of manufacture.
Source:
S.L. 1995, ch. 306, § 1.
Law Reviews.
Contracts v. Torts: North Dakota’s Aftermarket Risk Contract & Aftermarket Risk Insurance, Products Liability, and the General Aviation Industry, 72 N.D. L. Rev. 663 (1996).
28-01.4-02. Compliance with federal standards — Presumptions and defenses.
-
There is a disputable presumption that a product is free from any defect or defective condition if the product was in compliance with:
- Government standards established for that product; or
- If no government standards exist, applicable industry standards that were in existence at the time of manufacture.
-
An aviation manufacturer or a seller of aircraft or aircraft components may utilize the presumption provided by subsection 1 if the manufacture, design, formulation, inspection, testing, packaging, labeling, or warning complied with:
- Federal aviation administration or department of transportation regulations that relate to the safety or establish safety standards for the aircraft or aircraft component and which existed at the time the aircraft or aircraft component was produced;
- Any premarket approval or certification by the federal aviation administration or any other federal agency; and
- Applicable industry standards that were in existence at the time the plans, designs, warnings, or instructions for the aircraft or aircraft component or the methods and techniques of manufacturing, inspecting, and testing the product were adopted.
- The presumption under subsection 1 is not available if the plaintiff proves by clear and convincing evidence that the aviation manufacturer or product seller knowingly and in violation of applicable agency regulations made misrepresentations, made illegal payments to an official for the purpose of securing approval, committed fraud, or concealed evidence.
- There is an absolute defense to any product liability action brought against an aviation manufacturer when a claimant, in violation of federal aviation administration regulations, has used alcohol or illicit drugs while operating or using an aircraft or aircraft component.
- This chapter does not affect the authority of the federal aviation administration or any other federal agency with regard to the regulation of aircraft and aircraft components.
Source:
S.L. 1995, ch. 306, § 2.
28-01.4-03. State-of-the-art defense.
An aviation manufacturer or seller of aircraft or aircraft components may not be held liable for any personal injury, death, or damage to property sustained as a result of an alleged defect in a state-of-the-art product. An aircraft or aircraft component is presumed to be a state-of-the-art product if the plaintiff cannot show by a preponderance of the evidence that a safer aircraft or aircraft component was on the market at the time of manufacture. No evidence of subsequent design or modification of an aircraft or aircraft component is admissible to prove that an aircraft or aircraft component is not a state-of-the-art product. The state-of-the-art comparisons must be made to products with similar-intended utility. The trier of the fact shall consider the defense that the designer’s choice averted greater peril for a large subclass of intended users and shall consider the economic viability of the component or product.
Source:
S.L. 1995, ch. 306, § 3.
28-01.4-04. Useful safe life — Statute of repose — Statute of limitation.
- An aviation manufacturer may not be held liable in a product liability action if the defendant establishes that the harm was caused after the period of useful safe life of the aircraft or aircraft component had expired. The useful safe life of an aircraft or aircraft component may be measured in units of time or in other units that accurately gauge the useful safe life of a product.
- In a claim for relief that involves injury more than ten years after the date of first delivery of the aircraft or aircraft component to the first user, purchaser, or lessee, a disputable presumption arises that the harm was caused after the useful safe life had expired. The presumption may only be rebutted by clear and convincing evidence. If the aviation manufacturer or seller expressly warrants that its product can be utilized safely for a period longer than ten years, the period of repose is extended according to the warranty or promise.
- With respect to any aircraft component that replaced another product originally in, or which was added to, the aircraft, and which is alleged to have caused the claimant’s damages, no claim for damages may be made after the useful safe life of the component, the period stated in the warranty, or ten years after manufacture of the component, whichever is later.
- A product liability action may not be brought more than two years after the time the claimant discovered, or in the exercise of due diligence should have discovered, the harm and cause of the action.
Source:
S.L. 1995, ch. 306, § 4.
CHAPTER 28-02 Parties to Civil Actions [Repealed]
[Superseded by North Dakota Rules of Civil Procedure and transferred to other sections of the code]
28-02-01. Real party in interest to prosecute actions — Exceptions. [Repealed]
Superseded by N.D.R.Civ.P., Rule 17.
28-02-02. Action by foreign executor, administrator, or guardian. [Repealed]
Repealed by omission from this code.
28-02-03. Action by assignee. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-02-04. Infant must appear by guardian. [Repealed]
Superseded by N.D.R.Civ.P., Rule 17.
28-02-05. Plaintiffs — Who may be. [Repealed]
Superseded by N.D.R.Civ.P., Rule 20.
28-02-06. Defendants — Who may be. [Repealed]
Superseded by N.D.R.Civ.P., Rule 20.
28-02-07. Joinder in actions for possession of real estate. [Repealed]
Superseded by N.D.R.Civ.P., Rule 20.
28-02-08. Parties required to be joined. [Repealed]
Superseded by N.D.R.Civ.P., Rules 19, 23.
28-02-09. Persons holding unrecorded conveyance need not be made parties, when. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-02-10. Persons severally liable — Joinder. [Repealed]
Superseded by N.D.R.Civ.P., Rule 20.
28-02-11. Misjoinder and nonjoinder of parties. [Repealed]
Superseded by N.D.R.Civ.P., Rule 21.
28-02-12. Substitution of parties upon death. [Repealed]
Superseded by N.D.R.Civ.P., Rule 25.
28-02-13. Action may proceed between surviving parties, when. [Repealed]
Superseded by N.D.R.Civ.P., Rule 25.
28-02-14. Substitution of guardian. [Repealed]
Superseded by N.D.R.Civ.P., Rule 25.
28-02-15. Substitution on transfer of interest. [Repealed]
Superseded by N.D.R.Civ.P., Rule 25.
28-02-16. Substitution of successor to public officer. [Repealed]
Superseded by N.D.R.Civ.P., Rule 25.
28-02-17. Substitution at any stage. [Repealed]
Superseded by N.D.R.Civ.P., Rule 25.
28-02-18. Action does not abate after verdict. [Repealed]
Superseded by N.D.R.Civ.P., Rule 25.
28-02-19. Intervention — When permitted. [Repealed]
Superseded by N.D.R.Civ.P., Rule 24.
28-02-20. Intervention — Procedure. [Repealed]
Superseded by N.D.R.Civ.P., Rule 24.
28-02-21. Intervention by attorney general. [Repealed]
Superseded by N.D.R.Civ.P., Rule 24.
28-02-22. Interpleader — Power of court. [Repealed]
Superseded by N.D.R.Civ.P., Rule 19.
28-02-23. Interpleader by joinder. [Repealed]
Superseded by N.D.R.Civ.P., Rule 22.
28-02-24. Interpleader by substitution. [Repealed]
Superseded by N.D.R.Civ.P., Rule 22.
CHAPTER 28-03 Guardians Ad Litem
28-03-01. Appointment of guardian ad litem for infant plaintiff.
When an infant is plaintiff, a guardian ad litem may be appointed upon the application of the infant if the infant is at least fourteen years of age. If the infant is under that age, the application may be made by the infant’s guardian or conservator, if the infant has one, or by a relative or friend of the infant. If the application is made by a relative or friend, notice thereof must be given to the guardian or conservator, if there is one, and if not, then to the person with whom the infant resides.
Source:
C. Civ. P. 1877, § 79; R.C. 1895, § 5226; S.L. 1899, ch. 96, § 1; R.C. 1899, § 5226; R.C. 1905, § 6812; C.L. 1913, § 7400; R.C. 1943, § 28-0301; S.L. 1973, ch. 257, § 26.
Derivation:
Wait’s (N.Y.) Code, 116; Harston’s (Cal.) Practice, 373.
Notes to Decisions
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.
28-03-02. Appointment of guardian ad litem for infant defendant — Resident.
When an infant is defendant and resides in this state, a guardian ad litem may be appointed upon the application of the infant if the infant is at least fourteen years of age and applies within twenty days after the service of the summons. If the infant is under the age of fourteen years or neglects so to apply, then the application may be made by any other party to the action or by a relative or friend of the infant. If the application is not made by the infant, notice thereof must be given to the infant’s guardian or conservator, if the infant has either, and if not, then to the infant if the infant is at least fourteen years of age, and if the infant is under that age, then to the person with whom such infant resides.
Source:
C. Civ. P. 1877, § 79; R.C. 1895, § 5226; S.L. 1899, ch. 96, § 1; R.C. 1899, § 5226; R.C. 1905, § 6812; C.L. 1913, § 7400; R.C. 1943, § 28-0302; S.L. 1973, ch. 257, § 27.
Derivation:
Wait’s (N.Y.) Code, 116; Harston’s (Cal.) Practice, 373.
Collateral References.
Appointment of guardian ad litem for infant defendants in bastardy proceedings, 69 A.L.R.2d 1379.
28-03-03. Appointment of guardian ad litem for infant defendant — Nonresident.
In actions for the partition of real property or for the foreclosure of a mortgage or other lien, and in all actions affecting the title to real property, and in all other actions wherein an infant is a proper or necessary party and such infant resides out of this state, a guardian ad litem may be appointed upon application of the plaintiff. In such case, the court shall make its order designating some suitable person to be the guardian for the infant defendant for the purposes of the action unless the infant, or someone on the infant’s behalf, shall procure the appointment of another guardian for such infant within such time after the service of the order as the court therein may fix. The order must contain special directions for the manner of its service, which may be upon the infant or upon any relative or other person with whom the infant resides, and may be either by mail or by personal service upon the person designated.
Source:
C. Civ. P. 1877, § 79; R.C. 1895, § 5226; S.L. 1899, ch. 96, § 1; R.C. 1899, § 5226; R.C. 1905, § 6812; C.L. 1913, § 7400; R.C. 1943, § 28-0303.
Derivation:
Wait’s (N.Y.) Code, 116; Harston’s (Cal.) Practice, 373.
Collateral References.
Foreign guardian ad litem, 94 A.L.R.2d 162.
28-03-04. Appointment of guardian ad litem for person of unsound mind.
When the defendant, at the time the action is commenced, is a person of unsound mind, and no guardian or conservator has been appointed, the court shall appoint a guardian for the defendant for the purposes of the action. If during the pendency of an action either party becomes or proves to be of unsound mind, the action may be prosecuted or defended by the party’s guardian or conservator in like manner as if it had been commenced after the appointment of the guardian or conservator, or the court may appoint a guardian for the action as the case may require. Such guardian for the action may be appointed upon the application of any party thereto or any relative or friend of the person of unsound mind after at least five days’ notice of such application first has been given to such person personally, if a resident of this state, and if not a resident, in such manner as the court shall direct. Upon the hearing of such application, the court, if deemed desirable and practicable, may order such person of unsound mind to appear personally or to be brought in by the sheriff.
Source:
R.C. 1895, § 5227; R.C. 1899, § 5227; R.C. 1905, § 6813; C.L. 1913, § 7401; R.C. 1943, § 28-0304; S.L. 1973, ch. 257, § 28.
Notes to Decisions
- Appearance.
- Application for Appointment.
- Attorney’s Fees.
- Authority to Appoint.
- Real Party in Interest.
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).
28-03-05. Guardian ad litem not to receive ward’s money or property until security is given — Exception.
No guardian appointed for an infant or for a person of unsound mind under the provisions of this chapter may be permitted to receive any money or other property of the ward except costs and expenses allowed to the guardian by the court, or recovered by the ward in the action, until the guardian has given sufficient security approved by the judge of the court to account for and apply the same under the direction of the court.
Source:
C. Civ. P. 1877, § 80; R.C. 1895, § 5228; R.C. 1899, § 5228; R.C. 1905, § 6814; C.L. 1913, § 7402; R.C. 1943, § 28-0305.
Derivation:
Wait’s (N.Y.) Code, 420.
28-03-06. Liability for costs of guardian ad litem appointed for a defendant.
No person appointed a guardian for the purpose of defending an action brought against an infant or person of unsound mind is liable for the costs of such action, unless specially charged by order of the court resulting from a personal misfeasance by the guardian.
Source:
C. Civ. P. 1877, § 80; R.C. 1895, § 5228; R.C. 1899, § 5228; R.C. 1905, § 6814; C.L. 1913, § 7402; R.C. 1943, § 28-0306; S.L. 1975, ch. 106, § 319.
Derivation:
Wait’s (N.Y.) Code, 420.
Collateral References.
Allowance of fees for guardian ad litem appointed for defendant, 30 A.L.R.2d 1148.
CHAPTER 28-04 Venue
28-04-01. Venue of actions relating to real property.
An action for any one of the following causes 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:
- For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest.
- For injuries to real property.
- For the partition of real property.
- For the foreclosure of a mortgage upon real property.
- For the taking of property by eminent domain.
Where the subject matter of the action is situated in more than one county, only one action need be brought in one of the counties and the judgment rendered in that county is effective as to all other counties upon its being docketed therein, and further or supplemental proceedings may be held in each county where the judgment is docketed as though the action had originally been commenced therein.
Source:
C. Civ. P. 1877, § 92; S.L. 1887, ch. 23, § 1; R.C. 1895, § 5241; R.C. 1899, § 5241; R.C. 1905, § 6827; C.L. 1913, § 7415; S.L. 1919, ch. 3, § 1; 1925 Supp., § 7415; R.C. 1943, § 28-0401; S.L. 1983, ch. 362, § 1.
Derivation:
Wait’s (N.Y.) Code, 123; Harston’s (Cal.) Practice, 392.
Notes to Decisions
- Attachment Bond.
- Breach of Contract.
- County Boundary.
- Family Settlement Agreement.
- Foreclosure of Mortgage.
- Jurisdiction of Action.
- Leases.
- Necessity of Objection.
- Recovery of Real Property.
- River Change Separating Counties.
- Tax Liens.
- Waiver.
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.
28-04-02. Personal actions having venue where subject matter is located.
An action for any of the following causes must be tried in the county in which the subject of the action, or some part of the subject, is situated, subject to the power of the court to change the place of trial in the cases provided by sections 28-04-09 and 28-04-10:
- For the recovery of personal property distrained for any cause; and
- For recovery on an insurance policy for loss or damage to the property insured, and such property at the time of its loss or damage is deemed the subject matter of the action.
Source:
C. Civ. P. 1877, § 92; S.L. 1887, ch. 23, § 1; R.C. 1895, § 5241; R.C. 1899, § 5241; R.C. 1905, § 6827; C.L. 1913, § 7415; S.L. 1919, ch. 3, § 1; 1925 Supp., § 7415; R.C. 1943, § 28-0402; S.L. 1985, ch. 317, § 60; 1997, ch. 274, § 3.
Derivation:
Wait’s (N.Y.) Code, 123; Harston’s (Cal.) Practice, 392.
Notes to Decisions
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).
28-04-03. Actions having venue where the cause arose.
An action for any one of the following causes must be tried in the county where the cause or some part thereof arose, subject to the power of the court to change the place of trial as provided in sections 28-04-09 and 28-04-10:
- For the recovery of a penalty or forfeiture imposed by statute, except that when it is imposed for an offense committed on a lake or river or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river, or stream, and opposite the place where the offense was committed; and
- Against a public officer, or person specially appointed to execute the officer’s duties, for an act done by that individual by virtue of office, or against a person who by that person’s command or aid shall do anything touching the duties of such officer.
Source:
C. Civ. P. 1877, § 93; R.C. 1895, § 5242; R.C. 1899, § 5242; R.C. 1905, § 6828; C.L. 1913, § 7416; R.C. 1943, § 28-0403; S.L. 1997, ch. 274, § 4.
Derivation:
Wait’s (N.Y.) Code, 124; Harston’s (Cal.) Practice, 393.
Notes to Decisions
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.
28-04-03.1. Venue in motor vehicle cases.
An action against the owner or driver of any motor vehicle arising out of and by reason of the negligent driving, operation, management, or control of such motor vehicle may be brought either in the county where such action arose, in the county of the residence of the defendant, or in the county of the residence of the majority of the defendants. In any event, the venue of the action may not be changed unless by order of the court pursuant to section 28-04-07.
Source:
S.L. 1963, ch. 243, § 1.
Notes to Decisions
Trial in County of Improper Venue.
This section does not require the plaintiff’s lawsuit be tried in the county where the cause of action arose or in the county of the defendant’s residence; such action may be tried in a county of improper venue where the defendant fails to timely demand a change of venue. Gegelman v. Reiersgaard, 273 N.W.2d 703, 1979 N.D. LEXIS 238 (N.D. 1979).
28-04-04. Venue of actions against domestic corporations and limited liability companies.
An action against a domestic corporation or limited liability company must be brought in the county designated in the plaintiff’s complaint if such corporation or limited liability company transacts business in that county.
Source:
S.L. 1919, ch. 3, § 1; 1925 Supp., § 7415; R.C. 1943, § 28-0404; S.L. 1993, ch. 54, § 106; 1997, ch. 274, § 5.
Notes to Decisions
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.
28-04-05. Actions having venue where defendant resides.
In all other cases, except as provided in section 28-04-03.1, and subject to the power of the court to change the place of trial as provided by sections 28-04-09 and 28-04-10, the action must be brought in the county in which the defendant or one of the defendants resides at the time of the commencement of the action. If that county is attached to another county for judicial purposes, the action must be brought in the latter county. If none of the defendants reside in the state, the action either must be brought in the county in which the plaintiff or one of the plaintiffs resides or in the county in which the cause of action arose.
Source:
C. Civ. P. 1877, § 94; S.L. 1881, ch. 35, § 1; R.C. 1895, § 5243; R.C. 1899, § 5243; R.C. 1905, § 6829; C.L. 1913, § 7417; R.C. 1943, § 28-0405; S.L. 1963, ch. 243, § 2; 1997, ch. 274, § 6; 2013, ch. 246, § 1.
Derivation:
Wait’s (N.Y.) Code, 125; Harston’s (Cal.) Practice, 395.
Notes to Decisions
- Absolute Right.
- Attachment Bond.
- Bastardy Proceedings.
- Change in Residence.
- Change of Venue.
- Convenience of Witnesses.
- Determination.
- Divorce.
- False Imprisonment.
- Nonresidents.
- Pre-Trial Publicity.
- Waiver.
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).
DECISIONS UNDER PRIOR LAW
Garnishment.
A garnishment action is ancillary to the principal suit, and must be instituted in the court in which the principal suit was pending. Thorson v. Weimer, 59 N.D. 457, 230 N.W. 596, 1930 N.D. LEXIS 163 (N.D. 1930).
Reversible Error.
An order transferring a case to the county of defendant’s residence is not reversible because it requires performance of idle acts, if the plaintiff made no showing that the defendants were not entitled to the order as of right. State v. Bloom, 49 N.D. 224, 190 N.W. 812, 1922 N.D. LEXIS 44 (N.D. 1922).
Right to Change of Place of Trial.
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).
Collateral References.
Relationship between “residence” and “domicil” under venue statutes, as applied to corporations, 12 A.L.R.2d 757.
Applicability, to annulment actions, of statutory residence requirements relating to venue in divorce actions, 32 A.L.R.2d 734.
Venue of action for partnership dissolution, settlement, or accounting, 33 A.L.R.2d 914.
Nonresident motorist served constructively under statute in that regard, venue of action against, 38 A.L.R.2d 1198.
Venue of actions or proceedings against public officers, 48 A.L.R.2d 423, 447.
Venue of divorce action in particular county as dependent on residence or domicil for a specified length of time, 54 A.L.R.2d 898.
Libel in newspaper, venue of action for, where defendant is a corporation, 15 A.L.R.3d 1249.
Venue of wrongful-death action, 58 A.L.R.5th 535.
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).
28-04-05.1. Venue of trials.
Notwithstanding any other provision of this chapter, if the county seats of adjoining counties are less than ten miles [16.10 kilometers] apart and are located in the same judicial district, the district court may hold any trial or hearing in either county. In the case of a jury trial, the jury panel must be composed of residents of the county of venue as would otherwise be determined under this chapter even if the case is not tried in that county.
Source:
S.L. 1993, ch. 325, § 1; 1999, ch. 50, § 47.
28-04-06. Action triable in improper county unless defendant requests change — Exception. [Repealed]
Repealed by S.L. 1997, ch. 274, § 11.
28-04-07. Court may change venue — Cases.
The court may change the place of trial in the following cases:
- When the county designated for that purpose in the complaint is not the proper county.
- When there is reason to believe that an impartial trial cannot be had therein.
- When the convenience of witnesses and the ends of justice would be promoted by the change.
- When upon the call of the calendar at any regular or special term there appears to be an insufficient number of jury cases for trial to warrant the expense of a jury, the court, on application of any party to such an action, or on its own motion, taking into consideration the convenience of witnesses and the promotion of justice, may order the transfer of such jury cases as are on the calendar to any county within the judicial district where a jury session of court will be held in the immediate future, so that a prompt trial of such cases may be had.
Source:
C. Civ. P. 1877, § 95; R.C. 1895, § 5244; R.C. 1899, § 5244; R.C. 1905, § 6830; C.L. 1913, § 7418; R.C. 1943, § 28-0407; S.L. 1965, ch. 226, § 1.
Derivation:
Wait’s (N.Y.) Code, 126; Harston’s (Cal.) Practice, 396, 397.
Notes to Decisions
- Appeal of Order.
- Burden of Proof.
- Compulsory Counterclaim.
- Convenience of Court.
- Convenience of Parties.
- Convenience of Witnesses.
- “Court” Defined.
- Crowded Courthouse.
- Denial of Motion.
- Discretion of Court.
- Ends of Justice.
- Fair and Impartial Trial.
- Improper Venue.
- Jurisdiction of Judge.
- Post-Judgment Divorce Proceeding.
- Prejudice.
- Pre-Trial Publicity.
- Right to Change of Place of Trial.
- Ruling on Applications.
- Service of Answer.
- Suit Against County.
- Workers’ Compensation Appeal.
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).
28-04-08. Effect and transfer of papers upon change of venue.
When the place of trial is changed, all other proceedings must be had in the county to which the place of trial is changed, unless otherwise provided by the consent of the parties in writing duly filed, and the papers must be filed or transferred accordingly.
Source:
C. Civ. P. 1877, § 95; R.C. 1895, § 5245; R.C. 1899, § 5245; R.C. 1905, § 6831; C.L. 1913, § 7419; R.C. 1943, § 28-0408.
Derivation:
Wait’s (N.Y.) Code, 126; Harston’s (Cal.) Practice, 396, 397.
Notes to Decisions
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).
28-04-09. Change of place of pretrial proceedings — Expenses.
Notwithstanding any other provision of law, in any pretrial hearing or proceeding, except a hearing for a motion to suppress evidence, the court may change the place of the hearing or proceeding from the location in which the matter was originally to be heard.
Source:
S.L. 1997, ch. 274, § 1.
28-04-10. Change of place of trial — Jury — Expenses.
Notwithstanding any other provision of law, in any civil trial the court may change the place of the trial from the location in which the matter was originally to be heard. If any party files an objection to the change of trial no later than ten days after the date of notice of assignment or reassignment of a judge for trial of the case, the trial must be held where originally venued. In the case of a jury trial, the jury panel must be composed of residents of the original county of venue or residents of the judicial district as provided by section 27-09.1-05.1.
Source:
S.L. 1997, ch. 274, § 2.
DECISIONS UNDER PRIOR LAW
Analysis
- Application for Change of Venue.
- Change of Venue.
- Right to Change of Place of Trial.
- Timeliness.
- Waiver.
- Written Demand.
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).
CHAPTER 28-04.1 Jurisdiction by Agreement of Parties
28-04.1-01. Definition.
As used in this chapter, “state” means any foreign nation, and any state, district, commonwealth, territory, or insular possession of the United States.
Source:
S.L. 1971, ch. 308, § 1.
Note.
The Uniform Choice of Forum Act was withdrawn by the National Conference of Commissioners on Uniform State Laws in 1975.
28-04.1-02. Action in this state by agreement.
-
If the parties have agreed in writing that an action on a controversy may be brought in this state and the agreement provides the only basis for the exercise of jurisdiction, a court of this state will entertain the action if:
- The court has power under the law of this state to entertain the action;
- This state is a reasonably convenient place for the trial of the action;
- The agreement as to the place of the action was not obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means; and
- The defendant, if within the state, was served as required by law of this state in the case of persons within the state or, if without the state, was served either personally or by registered or certified mail directed to the defendant’s last-known address.
- This section does not apply to cognovit clauses, to arbitration clauses, or to the appointment of an agent for the service of process pursuant to statute, rule, or court order.
Source:
S.L. 1971, ch. 308, § 2.
28-04.1-03. Action in another place by agreement.
If the parties have agreed in writing that an action on a controversy may be brought only in another state and it is brought in a court of this state, the court will dismiss or stay the action, as appropriate, unless:
- The court is required by statute to entertain the action;
- The plaintiff cannot secure effective relief in the other state, for reasons other than delay in bringing the action;
- The other state would be a substantially less convenient place for the trial of the action than this state;
- The agreement as to the place of the action was obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means; or
- It would for some other reason be unfair or unreasonable to enforce the agreement.
Source:
S.L. 1971, ch. 308, § 3.
Notes to Decisions
Enforceability.
Forum-selection clause in the parties' employment agreement was unenforceable in the context of a former sales representative's declaratory judgment action where it violated North Dakota's public policy against noncompete agreements, the State had an interest in protecting that public policy from evasion, and North Dakota courts were more familiar with North Dakota law and public policy on noncompete agreements. Osborne v. Brown & Saenger, Inc., 2017 ND 288, 904 N.W.2d 34, 2017 N.D. LEXIS 290 (N.D. 2017).
CHAPTER 28-05 Lis Pendens
28-05-01. Civil action — How commenced. [Repealed]
Superseded by N.D.R.Civ.P., Rule 3.
28-05-02. Requisites of summons in actions in the district court. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-05-03. Form of civil summons in district court. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-05-04. Summons and procedure where complaint not served with summons. [Repealed]
Superseded by N.D.R.Civ.P., Rules 4, 12.
28-05-05. Action deemed discontinued if complaint not served with summons and not filed within thirty days. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-05-06. Notice of no personal claim. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 28-26-07.1.
28-05-07. Lis pendens — Effect.
In a civil or criminal action in a court affecting the title to real property, the plaintiff, at the time of filing the complaint or criminal information or indictment or at any time afterwards, or the defendant, when the defendant sets up in the defendant’s answer an affirmative claim for relief affecting the title to real property and demands substantive relief, at the time of filing the defendant’s answer or at any time afterwards, may file for record with the recorder of each county in which the real property is situated a notice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the real property affected. From the time of filing only shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected thereby, and every person whose conveyance or encumbrance is subsequently executed or subsequently recorded is deemed a subsequent purchaser or encumbrancer with notice and is bound by all proceedings taken after the filing of such notice to the same extent as if that person were a party to the action. For the purpose of this section, an action is deemed to be pending from the time of filing such notice, but the notice in a civil action is of no avail unless it is followed by the first publication of the summons, or by the personal service thereof on a defendant, within sixty days after such filing.
Source:
C. Civ. P. 1877, § 101; S.L. 1885, ch. 117, § 1; 1887, ch. 22, § 1; R.C. 1895, § 5251; R.C. 1899, § 5251; R.C. 1905, § 6837; C.L. 1913, § 7425; R.C. 1943, § 28-0507; S.L. 1985, ch. 82, § 66; 2001, ch. 120, § 1; 2011, ch. 232, § 1.
Derivation:
Wait’s (N.Y.) Code, 132; Harston’s (Cal.) Practice, 409.
Notes to Decisions
- Effect of Filing.
- Effect of Notice.
- Failure to File.
- Formalities.
- Lien Priority.
- Sale Pending Suit.
- Unrecorded Deed.
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.
28-05-07.1. Lis pendens — Notice — Limitation of ten years.
On and after January 1, 1958, no lis pendens now of record or hereafter filed is notice, either actual or constructive, of the pendency of any action or of any of the matters referred to in the court files and records pertaining to the action noticed by such lis pendens, after such lis pendens has been of record for ten years unless a new notice of lis pendens in the same action is recorded within said ten years. The effect of any lis pendens which has been of record for ten years upon the effective date of this section may be preserved by the recording of a new notice of lis pendens in the same action on or before December 31, 1957. Nothing contained in this section increases the effect or lengthens the term for which a lis pendens is notice under any existing law nor create a right to renew the operation of a lis pendens already barred by any existing law.
Source:
S.L. 1957, ch. 212, § 1; R.C. 1943, 1957 Supp., § 28-05071.
28-05-08. Cancellation of lis pendens.
The court in which the action was commenced, at any time, on application of any person aggrieved and on good cause shown and on such notice as directed or approved by the court, may order the notice authorized by section 28-05-07 to be canceled of record in whole or in part by the recorder of any county in whose office the same may have been filed for record, and such cancellation must be made by an endorsement to that effect on the margin of the record which shall refer to the order. Such cancellation, in like manner, may be made by the recorder upon a written request, directing such cancellation, signed by the party or the attorney of the party who caused such notice to be filed. Such notice is also canceled by the entry of a final judgment in the action if no appeal has been taken from such judgment within the time provided by law.
Source:
C. Civ. P. 1877, § 101; S.L. 1885, ch. 117, § 1; 1887, ch. 22, § 1; R.C. 1895, § 5251; R.C. 1899, § 5251; R.C. 1905, § 6837; C.L. 1913, § 7425; R.C. 1943, § 28-0508; S.L. 1971, ch. 309, § 1; 2001, ch. 120, § 1.
Derivation:
Wait’s (N.Y.) Code, 132; Harston’s (Cal.) Practice, 409.
Notes to Decisions
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.
28-05-09. When lis pendens not required.
A notice of the pendency of an action in a district court is not required if the action is for the foreclosure of a mortgage.
Source:
C. Civ. P. 1877, § 101; S.L. 1885, ch. 117, § 1; 1887, ch. 22, § 1; R.C. 1895, § 5251; R.C. 1899, § 5251; R.C. 1905, § 6837; C.L. 1913; § 7425; R.C. 1943, § 28-0509; 2009, ch. 293, § 2; 2013, ch. 259, § 1.
Derivation:
Wait’s (N.Y.) Code, 132; Harston’s (Cal.) Practice, 409.
28-05-10. When civil action deemed pending.
A civil action in a district court is deemed to be pending from the time of its commencement until its final determination upon appeal or until the time for appeal has passed, unless the judgment is sooner satisfied.
Source:
C. Civ. P. 1877, § 529; R.C. 1895, § 5739; R.C. 1899, § 5739; R.C. 1905, § 7346; C.L. 1913, § 7966; R.C. 1943, § 28-0510.
Derivation:
Harston’s (Cal.) Practice, 1049.
Cross-References.
Time unaffected by expiration of term of court, see N.D.R.Civ.P., Rule 6(c).
When action deemed commenced, see § 28-01-38.
Notes to Decisions
- Criminal Action.
- Divorce Actions.
- Entry of Judgment.
- Execution on Judgment.
- Final Determination.
- Motion for New Trial.
- Power to Vacate.
- Purchaser Pendente Lite.
- Reinvoking Jurisdiction.
- Satisfaction.
- Time for Appeal.
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).
28-05-11. Filing of summons and pleadings — Time for — Order requiring — Costs on order for. [Repealed]
Superseded by N.D.R.Civ.P., Rule 5.
CHAPTER 28-06 Service of Process [Repealed]
[Superseded by North Dakota Rules of Civil Procedure. Also, held repealed by omission from Century Code, in Higgins v. Hawks, 122 N.W.2d 129 (1963).]
28-06-01. Service of summons — Generally. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-02. Minor — Service of summons upon. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-03. Incompetent — Service of summons upon. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-04. Public corporation — Service of summons upon. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-05. State or an agency thereof — Service of summons upon. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-06. Domestic corporation — Service of summons upon. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-07. Foreign corporation — Service of summons upon. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-08. Foreign corporation without authorized agent — Service of summons upon. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-09. Partnership or association — Service of summons upon. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-10. Service of summons in other cases. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-11. Nonresident motor vehicle user — Service upon. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 39-01-11.
28-06-12. Mailing notice to defendant upon service of nonresident motor vehicle user. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 39-01-12.
28-06-13. Commissioner to keep record of process received for nonresident motor vehicle users. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 39-01-13.
28-06-14. Protecting rights of defendant served as nonresident motor vehicle user. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 39-01-14.
28-06-15. Service of process, writ, or order same in all courts — Exceptions. [Repealed]
Repealed by omission from this code.
28-06-16. Service deemed personal. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-17. Appearance equivalent to personal service. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-06-18. No civil process served on election day. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 1-08-09.
28-06-19. By whom summons served. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-20. Service by publication permitted, when. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-21. Filing of complaint and affidavit for service by publication. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
Note.
The provisions of this section were reinserted as section 29-21-38.
28-06-22. Number of publications. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-23. Mailing summons and complaint. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-24. Personal service outside state equivalent to publication. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-25. Time when first publication or service outside state must be made. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-26. When service by publication or outside state complete. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-27. When defendant served by publication permitted to defend. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-28. Proof of service. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-29. Contents of affidavit of service. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
28-06-30. Removal of pleadings for service. [Repealed]
Superseded by N.D.R.Civ.P., Rule 5.
28-06-31. Jurisdiction acquired, when. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-06-32. Amendment of process and proof of service. [Repealed]
Superseded by N.D.R.Civ.P., Rule 4.
CHAPTER 28-06.1 Service of Process on and Jurisdiction over Nonresidents [Repealed]
[Superseded by N.D.R.Civ.P., Rule 4, as amended bySup. Ct. Order of June 28, 1971]
CHAPTER 28-06.2 Service of Process on United States
28-06.2-01. Process served upon the United States — Persons designated to receive summons and complaint.
Service must be made upon the United States by any person authorized to make service under state law or the rules of civil procedure by delivering a copy of the summons and of the complaint to the United States attorney for the federal judicial district in which the action is brought, or to an assistant United States attorney in that district, or to a clerical employee designated by the United States attorney, and by sending a copy of the summons and of the complaint by certified mail to the attorney general of the United States, at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by certified mail to such officer or agency.
Source:
S.L. 1971, ch. 310, § 1.
28-06.2-02. Service upon officer, employee, agency, or government corporation of the United States.
Service upon an officer, employee, or agency of the United States must be made by serving the United States, and by delivering a copy of the summons and of the complaint to such officer, employee, or agency. If the agency being sued is a government corporation, a copy of the summons and of the complaint must be served in the manner service is authorized by state law or the rules of civil procedure for service on a domestic corporation.
Source:
S.L. 1971, ch. 310, § 1.
28-06.2-03. Answer by United States — Time limitation.
The United States, or an officer, employee, or agency thereof, shall serve an answer to the complaint or to a cross-claim, or a reply to a counterclaim, within sixty days after service upon the United States attorney of the pleading in which the claim is asserted.
Source:
S.L. 1971, ch. 310, § 1.
28-06.2-04. Service upon officer or employee acting under color of federal employment.
The provisions of sections 28-06.2-02 and 28-06.2-03 apply to any action seeking relief against an officer or employee of the United States for any act done under the color of the person’s office or employment.
Source:
S.L. 1971, ch. 310, § 1.
28-06.2-05. Procedures governing other matters remain the same.
Except as otherwise provided in this chapter, or by express provision of other law, procedures governing suits against the United States, or any of its agencies, officers, or employees acting in their official capacities, shall be those governing similar suits to which the United States, or an agency, officer, or employee, is not a party.
Source:
S.L. 1971, ch. 310, § 1.
CHAPTER 28-07 Pleadings In Civil Actions [Repealed]
[Superseded by North Dakota Rules of Civil Procedure and transferred to other sections of the Code]
28-07-01. Forms of pleading. [Repealed]
Superseded by N.D.R.Civ.P., Rules 8, 10.
28-07-02. Complaint — What to contain. [Repealed]
Superseded by N.D.R.Civ.P., Rules 7, 8, 10.
28-07-03. Joinder of causes of action. [Repealed]
Superseded by N.D.R.Civ.P., Rule 18.
28-07-04. Demurrer or answer — Defendant’s only pleading — Time for interposing. [Repealed]
Superseded by N.D.R.Civ.P., Rules 7, 12.
28-07-05. Joint demurrer and answer permitted. [Repealed]
Superseded by N.D.R.Civ.P., Rule 7.
28-07-06. When defendant may demur. [Repealed]
Superseded by N.D.R.Civ.P., Rules 7, 12.
28-07-07. Requisites of demurrer. [Repealed]
Superseded by N.D.R.Civ.P., Rules 7, 12.
28-07-08. Grounds for demurring taken by answer, when. [Repealed]
Superseded by N.D.R.Civ.P., Rules 7, 12.
28-07-09. Grounds for demurrer waived unless objection taken by demurrer or answer — Exception. [Repealed]
Superseded by N.D.R.Civ.P., Rules 7, 12.
28-07-10. Requisites of answer. [Repealed]
Superseded by N.D.R.Civ.P., Rule 8.
28-07-11. Offer of fixed damages may be served with answer, when — Effect if offer accepted. [Repealed]
Superseded by N.D.R.Civ.P., Rule 12.
28-07-12. Effect if offer of fixed damages rejected. [Repealed]
Superseded by N.D.R.Civ.P., Rule 12.
28-07-13. Sham defenses. [Repealed]
Superseded by N.D.R.Civ.P., Rule 12.
28-07-14. Requisites of counterclaim. [Repealed]
Superseded by N.D.R.Civ.P., Rule 13.
28-07-15. Several defenses or counterclaims may be contained in answer — How stated. [Repealed]
Superseded by N.D.R.Civ.P., Rules 8, 10.
28-07-16. Reply or demurrer to counterclaim. [Repealed]
Superseded by N.D.R.Civ.P., Rules 7, 12.
28-07-17. Reply to defense by way of avoidance. [Repealed]
Superseded by N.D.R.Civ.P., Rule 7.
28-07-18. Demurrer to reply. [Repealed]
Superseded by N.D.R.Civ.P., Rules 7, 12.
28-07-19. Supplemental pleading. [Repealed]
Superseded by N.D.R.Civ.P., Rule 15.
28-07-20. Signing of pleading — Effect — Verification not required — Attorney subject to disciplinary action. [Repealed]
Superseded by N.D.R.Civ.P., Rule 11.
28-07-21. Pleadings not evidence in criminal action. [Repealed]
Repealed by omission from this code.
28-07-22. Irrelevant matter may be stricken. [Repealed]
Superseded by N.D.R.Civ.P., Rule 12.
28-07-23. Procedure when defendant’s name is unknown. [Repealed]
Superseded by N.D.R.Civ.P., Rule 9.
28-07-24. Statement of account — Not necessary to plead — Demand for — Giving of — Effect of failure to give. [Repealed]
Superseded by N.D.R.Civ.P., Rule 12.
28-07-25. Bill of particulars — More definite statement. [Repealed]
Superseded by N.D.R.Civ.P., Rule 12.
28-07-26. Pleading a judgment. [Repealed]
Superseded by N.D.R.Civ.P., Rule 9.
28-07-27. Procedure when judgment on same claim is obtained in another action during pendency of present action. [Repealed]
Superseded by N.D.R.Civ.P., Rule 15.
28-07-28. Pleading conditions precedent. [Repealed]
Superseded by N.D.R.Civ.P., Rule 9.
28-07-29. Pleading instrument for payment of money. [Repealed]
Superseded by N.D.R.Civ.P., Rule 8.
28-07-30. Pleading private statute. [Repealed]
Superseded by N.D.R.Civ.P., Rule 9.
28-07-31. Complaint in libel or slander. [Repealed]
Superseded by N.D.R.Civ.P., Rule 8.
28-07-32. Answer in libel or slander. [Repealed]
Superseded by N.D.R.Civ.P., Rule 8.
28-07-33. Answer to complaint for possession of property distrained doing damage. [Repealed]
Superseded by N.D.R.Civ.P., Rule 8.
28-07-34. Pleading over if demurrer overruled. [Repealed]
Superseded by N.D.R.Civ.P., Rules 7, 12.
28-07-35. Amendment of pleading after demurrer to it sustained — Separation of actions improperly joined. [Repealed]
Superseded by N.D.R.Civ.P., Rule 15.
28-07-36. Amendment of pleadings as matter of course — Service of amended pleading. [Repealed]
Superseded by N.D.R.Civ.P., Rule 15.
28-07-37. Time when amendment of pleading may be permitted — Nature of amendments allowable. [Repealed]
Superseded by N.D.R.Civ.P., Rule 15.
28-07-38. Amended complaint — Service of — Time for answer — Default judgment on. [Repealed]
Superseded by N.D.R.Civ.P., Rule 15.
28-07-39. Pleading or doing act after expiration of the time therefor permissible, when — Order enlarging time. [Repealed]
Superseded by N.D.R.Civ.P., Rule 6.
28-07-40. Allegations deemed true or denied, when. [Repealed]
Superseded by N.D.R.Civ.P., Rule 8.
28-07-41. Liberal construction of pleadings. [Repealed]
Superseded by N.D.R.Civ.P., Rule 8.
28-07-42. Trivial defects in pleading or proceeding to be disregarded. [Repealed]
Superseded by N.D.R.Civ.P., Rules 1, 8.
28-07-43. Variance material, when — Effect and proof of material variance. [Repealed]
Superseded by N.D.R.Civ.P., Rule 15.
28-07-44. Immaterial variance — Effect of. [Repealed]
Superseded by N.D.R.Civ.P., Rule 15.
28-07-45. Variance distinguished from failure of proof. [Repealed]
Superseded by N.D.R.Civ.P., Rule 15.
CHAPTER 28-08 Dismissal of Actions [Repealed]
[Superseded by North Dakota Rules of Civil Procedure, Rule 41]
28-08-01. Civil actions dismissed without prejudice, how. [Repealed]
Superseded by N.D.R.Civ.P., Rule 41.
28-08-02. Dismissal, how entered. [Repealed]
Superseded by N.D.R.Civ.P., Rule 41.
28-08-03. Other judgments must be on merits. [Repealed]
Superseded by N.D.R.Civ.P., Rule 41.
28-08-04. Other modes of dismissal abolished. [Repealed]
Superseded by N.D.R.Civ.P., Rule 41.
28-08-05. Actions pending five years — When deemed dismissed — Application and order for dismissal. [Repealed]
Superseded by N.D.R.Civ.P., Rule 41.
28-08-06. Cases at issue for three jury terms subject to dismissal. [Repealed]
Superseded by N.D.R.Civ.P., Rule 41.
CHAPTER 28-09 Judgment Without Trial [Repealed]
[Superseded by North Dakota Rules of Civil Procedure]
28-09-01. Judgment — Definition. [Repealed]
Superseded by N.D.R.Civ.P., Rule 54.
28-09-02. Judgment on default. [Repealed]
Superseded by N.D.R.Civ.P., Rule 55.
28-09-03. Default judgment on written instrument. [Repealed]
Superseded by N.D.R.Civ.P., Rule 55.
28-09-04. Default judgment — Proof to be required. [Repealed]
Superseded by N.D.R.Civ.P., Rule 55.
28-09-05. Default judgment — When notice required. [Repealed]
Superseded by N.D.R.Civ.P., Rule 55.
28-09-06. Default judgment — Security may be required. [Repealed]
Superseded by N.D.R.Civ.P., Rule 55.
28-09-07. When counterclaim less than plaintiff’s claim. [Repealed]
Superseded by N.D.R.Civ.P., Rule 13.
28-09-08. Divorce cases — Evidence to be filed. [Repealed]
Repealed by omission from this code.
28-09-09. Judgment on counterclaim. [Repealed]
Superseded by N.D.R.Civ.P., Rule 55.
28-09-10. Frivolous pleading. [Repealed]
Superseded by N.D.R.Civ.P., Rule 12.
28-09-11. Summary judgment. [Repealed]
Superseded by N.D.R.Civ.P., Rule 56.
28-09-12. Effect of offer on costs upon offer of judgment. [Repealed]
Superseded by N.D.R.Civ.P., Rule 68.
CHAPTER 28-10 Confession of Judgment [Repealed]
[Superseded by North Dakota Rules of Civil Procedure, Rule 68]
28-10-01. Judgment by confession. [Repealed]
Superseded by N.D.R.Civ.P., Rule 68.
28-10-02. Verified statement — Contents. [Repealed]
Superseded by N.D.R.Civ.P., Rule 68.
28-10-03. Procedure in court — Execution. [Repealed]
Superseded by N.D.R.Civ.P., Rule 68.
CHAPTER 28-11 Pretrial Conferences [Repealed]
[Superseded by North Dakota Rules of Civil Procedure, Rule 16]
28-11-01. Power of court to direct conference. [Repealed]
Superseded by N.D.R.Civ.P., Rule 16.
28-11-02. Court to make order after conference. [Repealed]
Superseded by N.D.R.Civ.P., Rule 16.
28-11-03. Petition for conference. [Repealed]
Superseded by N.D.R.Civ.P., Rule 16.
28-11-04. Authority of judge at conference. [Repealed]
Superseded by N.D.R.Civ.P., Rules 12, 16.
CHAPTER 28-12 Trial, General Provisions [Repealed]
[Superseded by North Dakota Rules of Civil Procedure and transferred to other sections of the Code]
28-12-01. Trial — Definition. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-12-02. Origin and classes of issues. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-12-03. Issues of law. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-12-04. Issues of fact classified. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-12-05. Order of trial. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-12-06. By whom triable. [Repealed]
Superseded by N.D.R.Civ.P., Rules 38, 39.
28-12-07. Issues — When, where, and how tried. [Repealed]
Superseded by N.D.R.Civ.P., Rule 40.
28-12-08. Note of issue, contents — Notice of trial — Order of trial. [Repealed]
Superseded by N.D.R.Civ.P., Rule 40.
28-12-09. Order of trial. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-12-10. Continuance — Motions for — Affidavits. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-12-11. When party or attorney is member of legislative assembly. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 54-03-22.
28-12-12. Either party proceeds. [Repealed]
Superseded by N.D.R.Civ.P., Rule 40.
28-12-13. Separate trials. [Repealed]
Superseded by N.D.R.Civ.P., Rules 20, 42.
28-12-14. How jury waived. [Repealed]
Superseded by N.D.R.Civ.P., Rule 38.
28-12-15. Consolidating actions. [Repealed]
Superseded by N.D.R.Civ.P., Rule 42.
CHAPTER 28-13 Prejudice of Trial Judge [Repealed]
[Repealed by S.L. 1951, ch. 203, § 1; 1971, ch. 316, § 2]
Note.
For present provisions, see section 29-15-21.
CHAPTER 28-14 Trial by Jury
28-14-01. Jury ballots.
At the opening of the court the clerk shall prepare separate ballots containing the names of the persons returned as jurors, which must be folded as nearly alike as possible so that the names cannot be seen, and shall deposit them in the trial jury box.
Source:
C. Civ. P. 1877, § 241; R.C. 1895, § 5425; R.C. 1899, § 5425; R.C. 1905, § 7014; C.L. 1913, § 7613; R.C. 1943, § 28-1401.
Derivation:
Harston’s (Cal.) Practice, 246.
Law Reviews.
Voir Dire: What Can I Ask and What Can I Say?, 72 N.D. L. Rev. 607 (1996).
28-14-02. Challenge to array.
Either party to an action may challenge the array of jurors for any legal cause, which must be done by motion setting forth particularly the causes of challenge, and the party opposing the challenge may join issues of law or fact on such motion, and the issues so formed must be tried and decided by the court.
Source:
R.C. 1943, § 28-1402.
Collateral References.
Propriety of using anonymous juries in state criminal cases, 60 A.L.R.5th 39.
28-14-03. Clerk to draw jury.
When the action is called for trial by jury, the clerk shall draw from the trial jury box of the court the ballots containing the names of the jurors summoned, until the jury is completed or the ballots are exhausted.
Source:
C. Civ. P. 1877, § 242; R.C. 1895, § 5426; R.C. 1899, § 5426; R.C. 1905, § 7015; C.L. 1913, § 7614; R.C. 1943, § 28-1403.
Derivation:
Harston’s (Cal.) Practice, 246, 600.
28-14-03.1. Size of juries in civil cases.
In all civil actions when a jury is impaneled, a jury must consist of six qualified jurors unless any party makes a timely written demand for a jury of nine.
Source:
S.L. 1977, ch. 280, § 1; 1985, ch. 346, § 1.
Cross-References.
Corresponding civil rule, see N.D.R.Civ.P., Rule 38(c).
Jury of six unless written demand for jury of twelve, see N.D.R.Civ.P., Rule 48(b).
Stipulation for jury of any number less than twelve, stipulation accepting majority verdict or finding, see N.D.R.Civ.P., Rule 48(a).
28-14-04. Examination of jurors. [Repealed]
Superseded by N.D.R.Civ.P., Rule 47.
28-14-05. Challenges — Classification — By whom — Number allowed. [Repealed]
Superseded by N.D.R.Civ.P., Rule 47.
28-14-06. Challenges for cause — Grounds.
Challenges for cause may be taken on one or more of the following grounds:
- A want of any of the qualifications prescribed by law to render a person competent as a juror;
- Consanguinity or affinity within the fourth degree to either party;
- Standing in the relation of guardian and ward, master and servant, debtor and creditor, employer and employee, attorney and client, or principal and agent to either party, or being a member of the family of either party, or being a partner in business with either party, or surety on any bond or obligation for either party;
- Having served as a juror or been a witness on a previous trial between the same parties for the same claim for relief;
- Interest on the part of the juror in the event of the action, or in the main question involved in the action, except the juror’s interest as a member or citizen of a municipal corporation;
- Having an unqualified opinion or belief as to the merits of the action founded upon knowledge of its material facts or some of them;
- The existence of a state of mind in the juror evincing enmity against or bias for or against either party; or
- That the juror does not understand the English language as used in the courts.
Source:
C. Civ. P. 1877, § 244; R.C. 1895, § 5428; R.C. 1899, § 5428; R.C. 1905, § 7017; C.L. 1913, § 7616; R.C. 1943, § 28-1406; S.L. 1985, ch. 82, § 67.
Derivation:
Harston’s (Cal.) Practice, 602.
Cross-References.
Challenge for cause after judge has examined but not excused juror, see N.D.R.Civ.P., Rule 47(c).
Notes to Decisions
- Bank’s Depositors.
- Cases Involving Same Facts.
- Change of Venue.
- Denial of Challenge for Cause.
- Disqualification.
- Employee of Party.
- Individualized Inquiry.
- Municipal Corporation.
- Taxpayer’s Interest.
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).
28-14-07. Trial of challenge.
Challenges for cause must be tried by the court. The juror challenged and any other person may be examined as a witness on the trial of the challenge.
Source:
C. Civ. P. 1877, § 245; R.C. 1895, § 5429; R.C. 1899, § 5429; R.C. 1905, § 7018; C.L. 1913, § 7617; R.C. 1943, § 28-1407.
Derivation:
Harston’s (Cal.) Practice, 603.
Notes to Decisions
Trial.
Challenges for cause to any juror must be tried by court. In re McIntyre's Estate, 78 N.D. 10, 47 N.W.2d 527, 1951 N.D. LEXIS 71 (N.D. 1951).
28-14-08. Oath to jurors. [Repealed]
Superseded by N.D.R.Ct. 6.10.
28-14-09. Alternate jurors. [Repealed]
Superseded by N.D.R.Civ.P., Rule 47.
28-14-10. Order of trial.
When the jurors have been sworn, the trial must proceed in the following order, unless the judge for special reasons directs otherwise:
- The plaintiff, after stating the issue and the plaintiff’s case, shall produce the evidence on the plaintiff’s part;
- The defendant then may open the defendant’s defense and offer the defendant’s evidence in support thereof;
- The parties then respectively may offer rebutting evidence only, unless the court, for good reasons in furtherance of justice, permits them to offer evidence upon their original case;
- The court may charge the jury when the evidence is concluded or after the argument, if any, of the plaintiff and defendant;
- Unless the case is submitted to the jury on either or both sides without argument, the plaintiff shall commence and may conclude the argument; and
- If several defendants having separate defenses appear by different counsel, the court shall determine their relative order in the evidence and argument.
Source:
C. Civ. P. 1877, § 247; R.C. 1895, § 5431; R.C. 1899, § 5431; R.C. 1905, § 7020; C.L. 1913, § 7619; R.C. 1943, § 28-1410; S.L. 1981, ch. 333, § 1.
Derivation:
Harston’s (Cal.) Practice, 607, 2042.
Notes to Decisions
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).
28-14-11. Instructions to jury — Written or oral. [Repealed]
Superseded by N.D.R.Civ.P., Rule 51.
28-14-12. Requested instructions. [Repealed]
Superseded by N.D.R.Civ.P., Rule 51.
28-14-13. Written instructions may be submitted to counsel. [Repealed]
Superseded by N.D.R.Civ.P., Rule 51.
28-14-14. Exceptions to instructions. [Repealed]
Superseded by N.D.R.Civ.P., Rule 51.
28-14-15. View by jurors.
When in the opinion of the court it is proper for the jurors to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place, which must be shown to them by some person appointed by the court for that purpose. While the jurors are thus absent, no person, other than the person so appointed, may speak to them on any subject connected with the trial.
Source:
C. Civ. P. 1877, § 250; R.C. 1895, § 5434; R.C. 1899, § 5434; R.C. 1905, § 7023; C.L. 1913, § 7622; R.C. 1943, § 28-1415.
Derivation:
Harston’s (Cal.) Practice, 610.
Notes to Decisions
Denial of Request.
This section is permissive and not mandatory and denial by trial court of a motion to permit jury to have a view of the property, the subject of litigation in a negligence action, is not error except in the case of an abuse of discretion. Schmitt v. Northern Improvement Co., 115 N.W.2d 713, 1962 N.D. LEXIS 78 (N.D. 1962).
Trial court’s refusal to permit jury to view the property was not an abuse of its discretion in a negligence action where the evidence did not establish the fact that there had been no material changes in the property damaged, the amount of damages was uncontroverted on the trial and over two years had elapsed since the damage occurred. Schmitt v. Northern Improvement Co., 115 N.W.2d 713, 1962 N.D. LEXIS 78 (N.D. 1962).
Collateral References.
Prejudicial effect of misconduct by one other than juror during authorized view by jury in civil case, 45 A.L.R.2d 1128.
Prejudicial effect, in civil case, of acts of jurors in viewing premises with witnesses, 52 A.L.R.2d 182.
View, proper procedure to guard party against prejudicing party by objecting to opposite party’s request for, 76 A.L.R.2d 766.
Evidentiary effect of view by jury in condemnation proceedings, 1 A.L.R.3d 1397.
Prejudicial effect of unauthorized view by jury in civil case of scene of accident or premises in question, 11 A.L.R.3d 918.
28-14-16. Admonitions to jurors — Keeping in charge.
The jurors sworn to try a civil action may be kept in charge of proper officers during each recess of the court pending the trial. Whether the jurors are permitted to separate or are kept in charge of an officer, they must be admonished by the court that it is their duty not to converse with or suffer themselves to be addressed by any person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is submitted finally to them.
Source:
C. Civ. P. 1877, § 251; R.C. 1895, § 5435; S.L. 1897, ch. 46, § 1; R.C. 1899, § 5435; R.C. 1905, § 7024; C.L. 1913, § 7623; R.C. 1943, § 28-1416.
Derivation:
Harston’s (Cal.) Practice, 611.
28-14-17. What papers jurors may take.
Upon retiring for deliberation, the jurors may take with them all papers which have been received as evidence in the cause, except depositions or copies of such papers as ought not in the opinion of the court to be taken from the person having them in possession, and they also may take with them notes of the testimony or other proceedings on the trial taken by any juror, but none taken by any other person.
Source:
C. Civ. P. 1877, § 252; R.C. 1895, § 5436; R.C. 1899, § 5436; R.C. 1905, § 7025; C.L. 1913, § 7624; R.C. 1943, § 28-1417.
Derivation:
Harston’s (Cal.) Practice, 612.
Notes to Decisions
- Dictionary.
- Discretion of Court.
- Exhibits Admitted in Evidence.
- Explanatory Instruments.
- Hearsay Evidence.
- Lawbooks.
- Personal Property Exhibits.
- Statement of Claims.
- Unadmitted Instruments.
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.
28-14-18. Conduct of jurors in retirement.
When the case finally is submitted to the jurors, they may decide in court or retire for deliberation. If they retire, they must be kept together in some convenient place under charge of an officer, until they agree upon a verdict, are temporarily dismissed by the court, or are permanently discharged by the court. Unless, by order of the court, the officer having the jurors under the officer’s charge must not suffer any communication to be made to them, or make any personally except to ask them if they have agreed upon a verdict, and the officer, before the verdict is rendered, must not communicate to anyone the state of their deliberations or the verdict agreed upon. If the jurors have not agreed upon a verdict during normal working hours of any day of deliberations, the trial judge may temporarily dismiss the jurors and direct them when to resume deliberations. If a trial jury contains both male and female members, the trial judge may direct that the female members of the jury be placed in charge of a female bailiff and permitted to retire to a suitable place for rest, and the male members of the jury placed in charge of a male bailiff for a similar purpose. Whenever the jurors are dismissed or separated, as above stated, the trial judge shall admonish the members thereof that they must not in any manner discuss the case with anyone, nor permit anyone to discuss it with them, while they are so dismissed or separated, and that they must discuss and consider the case only in the room when all members of the jury are present.
Source:
C. Civ. P. 1877, § 253; R.C. 1895, § 5437; R.C. 1899, § 5437; R.C. 1905, § 7026; C.L. 1913, § 7625; S.L. 1923, ch. 332, § 1; 1925 Supp., § 7625; R.C. 1943, § 28-1418; S.L. 1981, ch. 333, § 2; 1991, ch. 337, § 1.
Derivation:
Harston’s (Cal.) Practice, 613.
Notes to Decisions
- Applicability.
- Failure to Admonish Jury Before Dismissal.
- Harmless Error.
- Statements of Bailiff.
- Statute Strictly Followed.
- Verdict Split.
- Weekend Separation.
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.
28-14-19. Additional information as to law.
After the jurors have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed of any point of law arising in the case, they may require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of or after notice to the parties or counsel.
Source:
C. Civ. P. 1877, § 254; R.C. 1895, § 5438; R.C. 1899, § 5438; R.C. 1905, § 7027; C.L. 1913, § 7626; R.C. 1943, § 28-1419.
Derivation:
Harston’s (Cal.) Practice, 614.
Notes to Decisions
- Burden of Proof.
- Communication Regarding Merits.
- Instructions in Jury Room.
- Statute Mandatory.
- Testimony of Witness.
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.
28-14-20. Sick juror discharged.
If after the impaneling of a jury and before a verdict, a juror becomes sick so as to be unable to perform the juror’s duty, the court may order the juror to be discharged. In that case the trial may proceed by agreement of the parties with the remaining jurors, or an alternate juror may be called, or another juror may be sworn and the trial begun anew, or the jurors may be discharged and a new jury then or afterwards impaneled.
Source:
C. Civ. P. 1877, § 255; R.C. 1895, § 5439; R.C. 1899, § 5439; R.C. 1905, § 7028; C.L. 1913, § 7627; R.C. 1943, § 28-1420.
Derivation:
Harston’s (Cal.) Practice, 615.
28-14-21. Verdict prevented — New trial.
In all cases when the jurors are discharged or prevented from giving a verdict by reason of accident or other cause during the progress of the trial or after the cause is submitted to them, the action may be tried again immediately or at a future time as the court may direct.
Source:
C. Civ. P. 1877, § 256; R.C. 1895, § 5440; R.C. 1899, § 5440; R.C. 1905, § 7029; C.L. 1913, § 7628; R.C. 1943, § 28-1421.
Derivation:
Harston’s (Cal.) Practice, 616.
Notes to Decisions
Judgment After Discharge.
The provision for granting a directed verdict on a jury’s disagreement does not authorize the entry of judgment after the jury which failed to agree has been discharged. Knorr v. Velva Supply & Mach. Co., 60 N.D. 449, 235 N.W. 149, 1931 N.D. LEXIS 187 (N.D. 1931).
28-14-22. Sealed verdict — Adjournment.
While the jury is absent, the court may adjourn from time to time in respect to other business, but it nevertheless is open for every purpose connected with the cause submitted to the jury, until a verdict is rendered or the jurors are discharged. The court may direct the jurors to bring in a sealed verdict at the opening of the court in case of an agreement during a recess or adjournment for the day. A final adjournment of the court for the term discharges the jurors.
Source:
C. Civ. P. 1877, § 257; R.C. 1895, § 5441; R.C. 1899, § 5441; R.C. 1905, § 7030; C.L. 1913, § 7629; R.C. 1943, § 28-1422.
Derivation:
Harston’s (Cal.) Practice, 617.
Notes to Decisions
Bastardy Action.
The court may permit a jury to return a sealed verdict in an action to determine the paternity of a child. State v. Luithle, 57 N.D. 316, 221 N.W. 885, 1928 N.D. LEXIS 130 (N.D. 1928).
28-14-23. How verdict received — Polling jurors.
When the jurors have agreed upon a verdict, the members thereof must be conducted into court, their names called by the clerk, and the verdict rendered by the foreman. The verdict must be in writing signed by the foreman and must be read by the clerk to the jurors and inquiry made whether it is their verdict. If any juror disagrees, all jurors must be sent out again, but if no disagreement is expressed and neither party requires the jurors to be polled, the verdict is complete and the jury must be discharged from the case. Either party may require the jurors to be polled, which is done by the court or clerk asking each juror if it is that juror’s verdict. If any one answers in the negative, the jurors again must be sent out.
Source:
C. Civ. P. 1877, § 258; R.C. 1895, § 5442; R.C. 1899, § 5442; R.C. 1905, § 7031; C.L. 1913, § 7630; R.C. 1943, § 28-1506.
Derivation:
Harston’s (Cal.) Practice, 618.
Notes to Decisions
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).
28-14-24. Correcting verdict.
When the verdict is announced, if it is informal or insufficient in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jurors again may be sent out.
Source:
C. Civ. P. 1877, § 259; R.C. 1895, § 5443; R.C. 1899, § 5443; R.C. 1905, § 7032; C.L. 1913, § 7631; R.C. 1943, § 28-1507.
Derivation:
Harston’s (Cal.) Practice, 619.
Notes to Decisions
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.
28-14-25. Verdict and entries.
Upon receiving a verdict, either general or special, an entry must be made by the clerk in the minutes of the court, specifying the time of trial, the names of the jurors and witnesses, and setting out the verdict at length, and when a special verdict is found, either the judgment rendered thereon or, if the case is reserved for argument or further consideration, the order thus reserving it. The verdict and any interrogatories must be filed with the clerk.
Source:
C. Civ. P. 1877, § 264; R.C. 1895, § 5448; R.C. 1899, § 5448; R.C. 1905, § 7037; C.L. 1913, § 7636; R.C. 1943, § 28-1508.
Derivation:
Wait’s (N.Y.) Code, 264; Harston’s (Cal.) Practice, 628.
Notes to Decisions
General Verdict.
When a general verdict is received and recorded, and judgment is entered thereon, the judgment entered must be in conformity with the verdict. Mielcarek v. Riske, 74 N.D. 202, 21 N.W.2d 218, 1945 N.D. LEXIS 68 (N.D. 1945).
CHAPTER 28-15 Verdict, Forms, Direction of [Repealed]
[Superseded by North Dakota Rules of Civil Procedure and transferred to other sections of the Code]
28-15-01. General and special verdict defined. [Repealed]
Superseded by N.D.R.Civ.P., Rule 49.
28-15-02. When special verdicts directed — Special findings — How prepared. [Repealed]
Superseded by N.D.R.Civ.P., Rule 49.
28-15-03. General verdict accompanied by answer to interrogatories. [Repealed]
Superseded by N.D.R.Civ.P., Rule 49.
28-15-04. Jury to find amount — Assessment when judgment rendered on pleadings. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-15-05. Specific personal property — Jury to find value and damages. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 32-07-12.
28-15-06. How verdict received — Polling jurors. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 28-14-23.
28-15-07. Correcting verdict. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 28-14-24.
28-15-08. Verdict and entries. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 28-14-25.
28-15-09. Motion for directed verdict. [Repealed]
Superseded by N.D.R.Civ.P., Rule 50.
28-15-10. Motion for judgment notwithstanding the verdict or for judgment in accordance with motion for directed verdict. [Repealed]
Superseded by N.D.R.Civ.P., Rule 50.
28-15-11. Orders separately reviewable on appeal. [Repealed]
Repealed by omission from this code.
Note.
The provisions of this section were reinserted as section 28-27-29.1.
CHAPTER 28-16 Trial by the Court [Repealed]
[Superseded by North Dakota Rules of Civil Procedure]
28-16-01. Decision to be in writing — When due. [Repealed]
Superseded by N.D.R.Civ.P., Rule 52.
28-16-02. Facts and conclusions separately stated. [Repealed]
Superseded by N.D.R.Civ.P., Rule 52.
28-16-03. How findings waived. [Repealed]
Superseded by N.D.R.Civ.P., Rule 52.
28-16-04. Preparation of findings by parties. [Repealed]
Superseded by North Dakota Rules of Civil Procedure generally.
28-16-05. Amendment of findings. [Repealed]
Superseded by N.D.R.Civ.P., Rule 52.
28-16-06. Judgment upon issue of law. [Repealed]
Superseded by N.D.R.Civ.P., Rules 12, 56.
CHAPTER 28-17 References and Trials by Referees [Repealed]
[Superseded by North Dakota Rules of Civil Procedure, Rule 53]
28-17-01. Reference by consent. [Repealed]
Superseded by N.D.R.Civ.P., Rule 53.
28-17-02. Reference without consent. [Repealed]
Superseded by N.D.R.Civ.P., Rule 53.
28-17-03. To whom reference ordered. [Repealed]
Superseded by N.D.R.Civ.P., Rule 53.
28-17-04. Objections to referee — Grounds of. [Repealed]
Superseded by N.D.R.Civ.P., Rule 53.
28-17-05. Objections heard by court. [Repealed]
Superseded by N.D.R.Civ.P., Rule 53.
28-17-06. How trial conducted. [Repealed]
Superseded by N.D.R.Civ.P., Rule 53.
28-17-07. Oath of referees. [Repealed]
Superseded by N.D.R.Civ.P., Rule 53.
28-17-08. Fees of referees. [Repealed]
Superseded by N.D.R.Civ.P., Rule 53.
28-17-09. Fees — By whom paid. [Repealed]
Superseded by N.D.R.Civ.P., Rule 53.
CHAPTER 28-18 Record for Review [Repealed]
[Superseded by North Dakota Rules of Civil Procedure]
28-18-01. Exception defined. [Repealed]
Superseded by N.D.R.Crim.P., Rule 51; N.D.R.Civ.P., Rule 46.
28-18-02. What deemed excepted to. [Repealed]
Superseded by N.D.R.Civ.P., Rule 46.
28-18-03. Exceptions on trial by referee — Service of findings and conclusions. [Repealed]
Superseded by N.D.R.Civ.P., Rule 46.
28-18-04. Transcript — How prepared. [Repealed]
Superseded by N.D.R.App.P., Rule 10.
28-18-05. Transcripts — Time of preparation and deposit. [Repealed]
Superseded by N.D.R.App.P., Rule 10.
28-18-06. Statement of the case. [Repealed]
Superseded by N.D.R.Civ.P., Rules 50, 59; N.D.R.App.P., Rules 10, 28.
28-18-07. Application to supreme court when judge refuses to settle. [Repealed]
Superseded by N.D.R.App.P., Rule 10.
28-18-08. Statement of case — Vacancy of judgeship. [Repealed]
Superseded by N.D.R.App.P., Rule 10.
28-18-09. Specifications of errors and insufficiency of the evidence. [Repealed]
Superseded by N.D.R.Civ.P., Rule 59; N.D.R.App.P. Rules 3, 28.
CHAPTER 28-19 New Trials [Repealed]
[Superseded by North Dakota Rules of Civil Procedure, Rule 59]
28-19-01. New trial — Defined. [Repealed]
Superseded by N.D.R.Civ.P., Rule 59.
28-19-02. Causes for new trial. [Repealed]
Superseded by N.D.R.Civ.P., Rule 59.
28-19-03. Time for motion for new trial. [Repealed]
Superseded by N.D.R.Civ.P., Rule 59.
28-19-04. Upon what motion for new trial made. [Repealed]
Superseded by N.D.R.Civ.P., Rule 59.
28-19-05. Notice of intention not required. [Repealed]
Superseded by N.D.R.Civ.P., Rule 59.
28-19-06. Memorandum decision on motion for new trial. [Repealed]
Superseded by N.D.R.Civ.P., Rule 59.
28-19-07. Verdict vacated by court. [Repealed]
Superseded by N.D.R.Civ.P., Rule 59.
CHAPTER 28-20 Judgments
28-20-01. Judgment entered by clerk on order. [Repealed]
Superseded by N.D.R.Civ.P., Rule 58.
28-20-02. Notice of entry of judgment served. [Repealed]
Superseded by N.D.R.Civ.P., Rule 77.
28-20-03. Rules for rendition of judgment. [Repealed]
Superseded by N.D.R.Civ.P., Rules 20, 41, 54.
28-20-04. Relief limited by complaint. [Repealed]
Superseded by N.D.R.Civ.P., Rule 54.
28-20-05. Death before judgment. [Repealed]
Superseded by N.D.R.Civ.P., Rule 54.
28-20-06. Judgments — Collection from property of decedent.
If judgment has been rendered against a person who thereafter dies:
- The judgment may be enforced by execution against any real property of the decedent upon which it had become a lien prior to the decedent’s death, but no such execution may issue until after the expiration of one year from the death of the judgment debtor;
- If execution was actually levied prior to the decedent’s death upon personal property, such property may be sold to satisfy the execution, and the officer making the sale shall account to the personal representative for any surplus remaining in the officer’s hands;
- If the judgment is for the recovery of real or personal property or for the enforcement of a lien thereon, execution may issue for the enforcement of such judgment; and
- If the judgment is for the recovery of money, it may be presented as any other claim against the estate of the decedent.
Source:
Prob. C. 1877, § 153; R.C. 1895, § 6476; S.L. 1897, ch. 111, § 26, subs. 17; R.C. 1899, §§ 6411, 6470; R.C. 1905, §§ 8109, 8169; C.L. 1913, §§ 8746, 8807; R.C. 1943, § 28-2006; S.L. 1973, ch. 257, § 29.
Notes to Decisions
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).
28-20-07. Judgment in action to recover personalty.
In an action to recover the possession of personal property, the judgment for the plaintiff may be for the possession, or for the recovery of possession, or for the value thereof in case a delivery cannot be had and for damages for the taking and detention thereof. If the property has been delivered to the plaintiff and the defendant claims a return thereof, judgment for the defendant may be for a return of the property, or for the value thereof in case a return cannot be had and for damages for the taking and detention thereof.
Source:
C. Civ. P. 1877, § 295; R.C. 1895, § 5484; R.C. 1899, § 5484; R.C. 1905, § 7075; C.L. 1913, § 7682; R.C. 1943, § 28-2007.
Derivation:
Harston’s (Cal.) Practice, 667.
Notes to Decisions
- Aggregate Value Judgment.
- Combined Remedies.
- Conversion Action.
- Damages Awarded.
- Judgment in Alternative.
- Sureties’ Obligation.
- Surety Bound by Findings.
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).
28-20-08. Judgment may order delivery of possession — Enforcement.
Every judgment that contains a direction for the sale of specific real property also may direct the delivery of the possession of the property to the purchaser, and the officer receiving the execution or order of sale may enforce the judgment by putting the purchaser in possession of the premises as if special execution had been directed to the purchaser for that purpose. The judgment creditor must show that the debtor has an interest in the real property that is the subject of the judgment.
Source:
C. Civ. P. 1877, § 296; R.C. 1895, § 5485; R.C. 1899, § 5485; R.C. 1905, § 7076; C.L. 1913, § 7683; R.C. 1943, § 28-2008; S.L. 1997, ch. 275, § 1.
Notes to Decisions
Sale of Property.
It was not necessary that judgment direct a sale of the property in satisfaction thereof, as the law explicitly imposed that duty on the attaching officer. Mott v. Holbrook, 28 N.D. 251, 148 N.W. 1061 (1914), distinguished, Sox v. Miracle, 35 N.D. 458, 160 N.W. 716 (1916), Crosson v. Kartowitz, 43 N.D. 466, 175 N.W. 868, 1919 N.D. LEXIS 69 (N.D. 1919) and Dickinson v. First Nat'l Bank, 64 N.D. 273, 252 N.W. 54, 1933 N.D. LEXIS 274 (N.D. 1933).
28-20-09. Transfer of title or discharge of encumbrance by court. [Repealed]
Superseded by N.D.R.Civ.P., Rule 70.
28-20-10. Judgment book. [Repealed]
Repealed by S.L. 1985, ch. 337, § 25.
28-20-11. How judgment entered — Notice when entered.
The judgment must specify clearly the relief granted or other determination of the action. An entry of the judgment must be made by the clerk in the register of civil actions. The entry of any judgment affecting the title or possession of real property, except judgments required to be docketed under the provisions of section 28-20-13, is not notice of its contents or constructive notice of such judgment to a subsequent bona fide purchaser or encumbrancer, nor to a privy of any party to such judgment who is otherwise a subsequent purchaser or encumbrancer in good faith, and for a valuable consideration, until a certified copy of such judgment is recorded in the office of the recorder in the county in which such property is located.
Source:
C. Civ. P. 1877, § 298; R.C. 1895, § 5488; R.C. 1899, § 5488; R.C. 1905, § 7079; C.L. 1913, § 7686; R.C. 1943, § 28-2011; S.L. 1957, ch. 214, § 1; 1957 Supp., § 28-2011; S.L. 1987, ch. 385, § 2; 2001, ch. 120, § 1.
Notes to Decisions
- Administrative Agency Appeals.
- Authority to Enter.
- Effect of Entry.
- Entering Judgment.
- Final Judgment.
- Proof of Judgment.
- Signing Judgment.
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).
28-20-12. Judgment roll — Contents.
Unless the party or the party’s attorney furnishes a judgment roll, the clerk, immediately after entering the judgment, shall attach together and file the following papers, which constitute the judgment roll unless otherwise directed by rule of the supreme court:
- In cases when the complaint is not answered by any defendant, the summons and complaint or copies thereof, the affidavit for service of summons by publication, if any, proof of service and proof that no answer has been received, the report, if any, and a copy of the judgment;
- In all other cases, the summons, pleadings, or copies thereof, the verdict or decision, the report, if any, the offer of the defendant, a copy of the judgment, the statement of the case, if any, and all orders and papers in any way involving the merits and necessarily affecting the judgment; and
- All instructions of the court to the jury, when filed with the clerk, the motion and notice of motion for a new trial, the specifications of errors of law and of insufficiency of the evidence, the order of the court granting or denying a new trial, together with the memorandum of the judge’s reasons, and the notice of appeal and undertaking thereon.
Source:
C. Civ. P. 1877, § 299; R.C. 1895, § 5489; R.C. 1899, § 5489; R.C. 1905, § 7081; S.L. 1913, ch. 131, §§ 10, 13; C.L. 1913, §§ 7688 to 7690; R.C. 1943, § 28-2012; S.L. 1985, ch. 337, § 10.
Derivation:
Wait’s (N.Y.) Code, 281; Harston’s (Cal.) Practice, 661, 670.
Cross-References.
Record on appeal, see N.D.R.App.P., Rule 10.
Notes to Decisions
- Absence of Decision.
- Affidavit for Continuance.
- Challenge to Roll.
- Contents.
- Copy of Judgment.
- Decision of Trial Court.
- Faulty Affidavit.
- Final Judgment.
- Insufficient Record.
- Insufficient Roll.
- Judge’s Signature.
- Judgment for Costs.
- Juvenile Commitment.
- Order Denying Motion.
- Order Striking Answer.
- Proof of Judgment.
- Statement of Case.
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).
Notes to Decisions
- Absence of Decision.
- Affidavit for Continuance.
- Challenge to Roll.
- Contents.
- Copy of Judgment.
- Decision of Trial Court.
- Faulty Affidavit.
- Final Judgment.
- Insufficient Record.
- Insufficient Roll.
- Judge’s Signature.
- Judgment for Costs.
- Juvenile Commitment.
- Order Denying Motion.
- Order Striking Answer.
- Proof of Judgment.
- Statement of Case.
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).
28-20-13. Docketing judgment — Transcript to other counties — Lien on real property.
- On filing a judgment roll upon a judgment that directs the payment of money, the clerk of the district court in which the judgment was rendered shall docket the judgment in a separate record to be known as the “judgment docket”. The judgment may be docketed in any other county upon filing with the clerk of the district court of that county a transcript of the original judgment docket.
- For a judgment docketed before August 1, 2021, the judgment is a lien on all the real property, except the homestead, of every person against whom the judgment is rendered, which the person may have in any county in which the judgment is docketed at the time of docketing or which the person thereafter acquires in the county, for ten years from the time of docketing the judgment in the county in which it was rendered.
- For a judgment docketed after August 1, 2021, the judgment is a lien on all the real property, except the homestead, of every person against whom the judgment is rendered, which the person may have in any county in which the judgment is docketed at the time of docketing or which the person thereafter acquires in the county, for twenty years from the time of docketing the judgment in the county in which it was rendered.
- When a judgment is docketed in a county to which unorganized territory is attached for judicial purposes, the judgment is a lien upon any real property of the judgment debtor situated in the unorganized territory to the same extent as though the real property were situated in the organized county. If the unorganized territory thereafter is organized as a county, a transcript of the judgment docket must be filed in the office of the clerk of the district court of the county within ninety days after the organization of the county, or it ceases to be a lien upon any real property in the county.
Source:
C. Civ. P. 1877, § 300; S.L. 1883, ch. 82, § 1; R.C. 1895, § 5490; R.C. 1899, § 5490; R.C. 1905, § 7082; C.L. 1913, § 7691; R.C. 1943, § 28-2013; S.L. 1985, ch. 337, § 11; 2021, ch. 250, § 1, effective August 1, 2021.
Derivation:
Wait’s (N.Y.) Code, 282; Harston’s (Cal.) Practice, 671, 674.
Notes to Decisions
- Applicability.
- After-Acquired Property.
- Alimony Payments.
- Attachable Interest.
- Bank Property.
- Conflict of Interests.
- Discharge in Bankruptcy.
- Divorce Judgment.
- Equitable Interests.
- Execution.
- Foreclosure Decree.
- Foreign Judgment.
- Future Interests.
- Homestead.
- Levy of Execution.
- Levy Unnecessary.
- Quiet Title Action.
- Statute of Limitations.
- Statutory Lien.
- Superior Rights.
- Unrecorded Title.
- Validity of Judgment Lien.
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).
28-20-14. Release of judgment lien on appeal.
Whenever an appeal from any judgment is pending and the undertaking requisite to stay execution on such judgment has been given and the appeal perfected as provided in this title, the court in which such judgment was recovered, on motion after notice to the person owning the judgment, may direct the clerk to make an entry on the judgment docket that the judgment is secured on appeal, and thereupon it, during the pendency of the appeal, ceases to be a lien on the real property of the judgment debtor as against purchasers and mortgagees in good faith and for value.
Source:
C. Civ. P. 1877, § 300; S.L. 1883, ch. 82, § 1; R.C. 1895, § 5490; R.C. 1899, § 5490; R.C. 1905, § 7082; C.L. 1913, § 7691; R.C. 1943, § 28-2014.
Derivation:
Wait’s (N.Y.) Code, 282; Harston’s (Cal.) Practice, 671, 674.
28-20-15. Affidavit of identification required before filing of judgments.
No judgment for the recovery of money against any person may be docketed or entered until the judgment creditor, or the judgment creditor’s agent or attorney, has filed with the clerk of the district court an affidavit stating the full name, occupation, place of residence, and post-office address of the judgment debtor, to the best of the affiant’s information and belief, and if the debtor has a known street address, or residence number, or both, it must be given. This section does not apply to any case in which judgment is taken against a corporation, limited liability company, copartnership, public official, or party sued in a representative capacity. Failure to file such affidavit, or the filing of a defective or insufficient affidavit, does not invalidate the judgment docketed or entered, but the clerk of the district court entering or docketing a judgment without such affidavit of identification is liable to any person damaged thereby in the sum of five dollars.
Source:
S.L. 1935, ch. 244, § 1; 1937, ch. 197, § 1; R.C. 1943, § 28-2015; S.L. 1993, ch. 54, § 106.
28-20-16. How judgment docketed.
Unless otherwise directed by rules of the supreme court, the clerk shall docket the judgment by entering alphabetically in the judgment docket the names of the judgment debtors, the names of the parties in whose favor the judgment was rendered, the sum recovered or directed to be paid in figures, the date of the judgment, the exact time to the minute when the judgment roll or transcript was filed, the exact time to the minute when the judgment was docketed in the clerk’s office, the name of the court in which the judgment was rendered, and the name of the attorneys for the party recovering the judgment. If there are two or more judgment debtors, the entries must be repeated under the initial letter of each surname.
Source:
C. Civ. P. 1877, § 301; R.C. 1895, § 5495; R.C. 1899, § 5495; R.C. 1905, § 7090; C.L. 1913, § 7699; R.C. 1943, § 28-2016; S.L. 1985, ch. 337, § 12.
Derivation:
Harston’s (Cal.) Practice, 672.
28-20-17. Duties of clerks on filing transcript.
Upon the filing of a transcript of judgment in the office of any clerk of a district court, the clerk with whom such transcript is filed forthwith shall notify by mail the clerk issuing the same of the time when such judgment was docketed in the county in which such transcript is filed, and a memorandum showing the time of such docketing must be entered by the clerk who issued the transcript, upon that clerk’s judgment docket.
Source:
R.C. 1895, § 5491; R.C. 1899, § 5491; R.C. 1905, § 7086; C.L. 1913, § 7695; R.C. 1943, § 28-2017.
28-20-18. Docketing judgments of United States courts — Effect. [Repealed]
Repealed by S.L. 1969, ch. 294, § 10.
28-20-19. Docketing of county court judgments — Effect. [Repealed]
Repealed by S.L. 1985, ch. 337, § 25.
28-20-20. Assignment of judgment to be entered upon the judgment docket.
Every clerk of the district court, upon the presentation of an assignment of any judgment rendered or docketed in the court, signed by the party in whose favor the judgment is rendered, or by the party’s executor or administrator, and acknowledged in the manner prescribed by law for the acknowledgment of deeds, shall note the fact of the assignment, the date thereof, and the name of the assignee upon the docket of the judgment. No filing fee may be charged or collected by the clerk of district court for entering an assignment of a judgment. The clerk of the district court of any other county where the judgment is docketed shall note the fact of the assignment, the date thereof, and the name of the assignee, upon the presentation and filing with that clerk of a certified copy of the original judgment docket with the facts of the assignment noted thereon.
Source:
C. Civ. P. 1877, § 302; R.C. 1895, § 5496; R.C. 1899, § 5496; R.C. 1905, § 7091; C.L. 1913, § 7700; R.C. 1943, § 28-2020; S.L. 1985, ch. 336, § 8; 1985, ch. 337, § 13.
Notes to Decisions
Eviction Judgment.
Although the assignee was in the process of leasing land from the assignor, there was no reason to make filing or recording of a separate written document, apart from filing the assignment itself, a prerequisite to enforcing an eviction judgment through assignment. Bank of Steele v. Lang, 423 N.W.2d 504, 1988 N.D. LEXIS 127 (N.D. 1988).
28-20-21. Renewal of judgments by affidavit. [Repealed effective August 1, 2031]
- For judgments initially docketed before August 1, 2021, any judgment that in whole or in part directs the payment of money and which may be docketed in the office of the clerk of any district court in this state may be renewed by the affidavit of the judgment creditor or of the judgment creditor’s personal representative, agent, attorney, or assignee at any time within ninety days preceding the expiration of ten years from the first docketing of such judgment.
-
The affidavit must be verified positively by the person making it and not on information and belief. The affidavit must be entitled as in the original judgment and must set forth:
- The names of the parties plaintiff and defendant;
- The name of the court in which docketed;
- The date and amount of the original judgment;
- The file number of the case in the county in which the judgment was originally entered;
- The name of the owner of said judgment, and, if not the party in whose name the judgment was entered, the source of that person’s title thereto and a statement of each assignment of said judgment necessary to trace the title thereof from the original judgment creditor;
- If the judgment was entered upon a certified transcript from any other court, a statement of this fact;
- A statement of each county in which a transcript of said judgment has been filed;
- A statement that no execution is outstanding and unreturned upon said judgment, or, if any execution is outstanding, that fact must be stated;
- The date and amount of each payment upon said judgment, whether collected under execution or otherwise, and that all payments have been duly credited upon said judgment, and whether any amount has been realized that has not been credited upon the judgment and upon the records in the court in which the judgment was originally rendered, or in any other court to which it has been transcripted;
- That there are no offsets or counterclaims against the person for whose benefit the renewal is sought and in favor of the judgment debtor or debtors, or, if a counterclaim or offset does exist in favor of the judgment debtor, a statement of the amount, if ascertained or certain, and an offer to allow the same as a credit pro tanto upon the amount due from the judgment debtor, or, if the counterclaim or offset is unsettled or undetermined, an offer that when the same is settled or determined, by suit or otherwise, the same may be allowed as a payment or credit upon said judgment to the full amount which subsequently may be adjudged due the judgment debtor thereon;
- The exact amount due upon said judgment, after allowing all offsets and counterclaims known to the affiant; and
- Any other facts or circumstances necessary to a complete disclosure as to the exact condition of said judgment.
Source:
S.L. 1901, ch. 110, §§ 1, 2; R.C. 1905, §§ 7083, 7084; S.L. 1909, ch. 157, § 1; C.L. 1913, §§ 7692, 7693; R.C. 1943, § 28-2021; S.L. 1985, ch. 337, § 14; 2021, ch. 250, § 2, effective August 1, 2021.
Notes to Decisions
- Concurrent Remedy.
- Excessive Interest.
- Formalities.
- Incomplete Affidavit.
- Period of Renewal.
- Statute of Limitations.
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.
28-20-21. Renewal of judgments by affidavit. [Repealed effective August 1, 2031]
Source:
S.L. 1901, ch. 110, §§ 1, 2; R.C. 1905, §§ 7083, 7084; S.L. 1909, ch. 157, § 1; C.L. 1913, §§ 7692, 7693; R.C. 1943, § 28-2021; S.L. 1985, ch. 337, § 14; 2021, ch. 250, § 2, effective August 1, 2021; repealed by 2021, ch. 250, § 6, effective August 1, 2031.
28-20-22. Affidavit of renewal — Where filed — Entry. [Repealed effective August 1, 2031]
For judgments initially docketed before August 1, 2021, if the judgment was rendered in a court of this state, the affidavit for renewal must be filed with the clerk of court where the judgment was first docketed and the clerk of court shall file a copy of the affidavit for renewal in each county where the judgment was transcribed as requested by the judgment creditor. If the judgment filed and docketed was a foreign judgment, the affidavit for renewal may be filed with the clerk of any court where the same has been docketed and the clerk of court shall file a copy of the affidavit for renewal in each county where the judgment was transcribed as requested by the judgment creditor. The clerk of court shall immediately enter in the judgment docket the fact of renewal, the date of renewal, and the amount for which the judgment is renewed.
Source:
S.L. 1901, ch. 110, §§ 1, 3; R.C. 1905, §§ 7083, 7085; S.L. 1909, ch. 157, §§ 1, 2; C.L. 1913, §§ 7692, 7694; R.C. 1943, § 28-2022; S.L. 1969, ch. 294, § 9; 1981, ch. 320, § 63; 1985, ch. 337, § 15; 1991, ch. 326, § 102; 1991, ch. 338, § 1; 2005, ch. 282, § 1; 2021, ch. 250, § 3, effective August 1, 2021.
Notes to Decisions
Statutory Right.
The right to renew a judgment by filing an affidavit is wholly statutory. Swanson v. Flynn, 75 N.D. 597, 31 N.W.2d 320, 1948 N.D. LEXIS 85 (N.D. 1948).
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).
28-20-22. Affidavit of renewal — Where filed — Entry. [Repealed effective August 1, 2031]
Source:
S.L. 1901, ch. 110, §§ 1, 3; R.C. 1905, §§ 7083, 7085; S.L. 1909, ch. 157, §§ 1, 2; C.L. 1913, §§ 7692, 7694; R.C. 1943, § 28-2022; S.L. 1969, ch. 294, § 9; 1981, ch. 320, § 63; 1985, ch. 337, § 15; 1991, ch. 326, § 102; 1991, ch. 338, § 1; 2005, ch. 282, § 1; 2021, ch. 250, § 3, effective August 1, 2021; repealed by 2021, ch. 250, § 6, effective August 1, 2031.
28-20-23. Lien extended for ten years by renewal. [Repealed effective August 1, 2031]
For judgments initially docketed before August 1, 2021, the entry and docketing of an affidavit of renewal of a judgment operates to continue the lien of the judgment to the extent of the balance due on said judgment as shown by the affidavit on all real property, except the homestead, of the judgment debtor or debtors in the county where the same is docketed which the judgment debtor or debtors may have at the time of such docketing or may acquire subsequently in such county, for a period of ten years from the time of the docketing of such affidavit. The filing of a certified copy of such affidavit of renewal and the docket entries thereon in a county wherein a transcript of the original judgment was docketed likewise continues and extends the lien of said judgment in such county. An execution may issue upon said judgment as renewed under the same conditions and with the same force and effect within such renewal period as upon a judgment originally rendered and entered at the date of such renewal, and all other remedies for the enforcement of judgments apply to the enforcement of such renewed judgment.
Source:
S.L. 1901, ch. 110, §§ 1 to 3; R.C. 1905, §§ 7083 to 7085; S.L. 1909, ch. 157, §§ 1, 2; C.L. 1913, §§ 7692 to 7694; R.C. 1943, § 28-2023; 2021, ch. 250, § 4, effective August 1, 2021.
Notes to Decisions
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).
28-20-23. Lien extended for ten years by renewal. [Repealed effective August 1, 2031]
Source:
S.L. 1901, ch. 110, §§ 1 to 3; R.C. 1905, §§ 7083 to 7085; S.L. 1909, ch. 157, §§ 1, 2; C.L. 1913, §§ 7692 to 7694; R.C. 1943, § 28-2023; 2021, ch. 250, § 4, effective August 1, 2021; repealed by 2021, ch. 250, § 6, effective August 1, 2031.
28-20-24. Satisfaction of judgment.
Any judgment rendered or docketed in any district court of this state may be canceled and discharged by the clerk thereof, upon the filing with the clerk of an acknowledgment of the satisfaction thereof signed by the party in whose favor the judgment was obtained, or by that party’s attorney of record, executor or administrator, or assignee, and duly acknowledged in the manner required to admit a deed of real property to record.
Source:
C. Civ. P. 1877, § 303; R.C. 1895, § 5497; R.C. 1899, § 5497; R.C. 1905, § 7092; C.L. 1913, § 7701; R.C. 1943, § 28-2024.
Derivation:
Harston’s (Cal.) Practice, 675.
Notes to Decisions
- Authority to Satisfy.
- Compromise Settlement.
- Period of Satisfaction.
- Pure Cost Judgment.
- Satisfaction Requirements.
- Service on Attorney.
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).
28-20-25. Discharge of record.
Upon the return of an execution issued upon a judgment that has been satisfied, or the presentation of a satisfaction duly executed, to the clerk of any district court, the clerk shall immediately note upon the judgment docket the date and manner of the cancellation.
Source:
C. Civ. P. 1877, § 303; R.C. 1895, § 5497; R.C. 1899, § 5497; R.C. 1905, § 7092; C.L. 1913, § 7701; R.C. 1943, § 28-2025; S.L. 1985, ch. 337, § 16.
Derivation:
Harston’s (Cal.) Practice, 675.
Notes to Decisions
Authority of Clerk.
Clerk of district court had no authority to receive money in satisfaction of a judgment, and had no authority to enter satisfaction of judgment by virtue of having received money. Milburn-Stoddard Co. v. Stickney, 14 N.D. 282, 103 N.W. 752, 1905 N.D. LEXIS 40 (N.D. 1905).
Clerk has no authority to satisfy a judgment except when duly acknowledged satisfaction is filed, when an execution is returned with return that judgment is wholly satisfied, and when the debtor files a renewal affidavit. Milburn-Stoddard Co. v. Stickney, 14 N.D. 282, 103 N.W. 752, 1905 N.D. LEXIS 40 (N.D. 1905).
Collateral References.
Remedy and procedure to avoid release or satisfaction of judgment, 9 A.L.R.2d 553.
28-20-26. Partial satisfaction.
A partial satisfaction of a judgment may be made and noted upon the records in like manner as a full satisfaction, and thereupon the judgment and all liens thereby created must be taken and deemed to be canceled and discharged to the extent of the entries so made upon the judgment docket.
Source:
C. Civ. P. 1877, § 303; R.C. 1895, § 5497; R.C. 1899, § 5497; R.C. 1905, § 7092; C.L. 1913, § 7701; R.C. 1943, § 28-2026.
Derivation:
Harston’s (Cal.) Practice, 675.
28-20-27. Cancellation of judgment transcripted to other counties.
Upon the cancellation and discharge of any judgment by the clerk of the district court of the county wherein the judgment was rendered or docketed, such clerk immediately shall forward to the clerk of the district court of any other county wherein a transcript of such judgment docket has been filed and the judgment docketed accordingly, a written notice under the clerk’s hand and seal, showing the names of the parties, the date and amount of such judgment, and the fact that such judgment has been canceled and discharged. Upon receipt of such notice by any clerk of court wherein such judgment is of record, such officer immediately shall cancel and discharge such judgment of record. No additional charge may be made for issuing said notice nor for canceling and discharging such judgment in the counties to which transcripted.
Source:
S.L. 1913, ch. 93, §§ 1 to 3; C.L. 1913, §§ 7702 to 7704; R.C. 1943, § 28-2027.
28-20-28. Satisfaction of judgment when creditor cannot be found or satisfaction is refused. [Repealed]
Superseded by N.D.R.Ct. 7.1.
28-20-29. Satisfaction of judgment pending appeal by judgment creditor.
Any judgment debtor upon a money judgment duly docketed in the district court from which judgment an appeal has been perfected to the supreme court by the judgment creditor may cause such judgment to be released as a lien against the real property of said judgment debtor by depositing with the clerk of the district court in which said judgment was entered originally a sum of money equal to one and one-third times the amount of said judgment with interest and costs, and upon such deposit the clerk shall satisfy and discharge the said judgment as a lien against the real property of said judgment debtor. In lieu of depositing the money as aforesaid, the judgment debtor may file with the clerk of the district court a good and sufficient bond executed as provided by law for the execution of a bail bond conditioned for the payment of such judgment upon its final determination in the appellate court, or at any time upon the dismissal of the appeal. Such bond must be approved by the judge of the district court.
Source:
S.L. 1913, ch. 137, § 1; C.L. 1913, § 7709; R.C. 1943, § 28-2029.
Notes to Decisions
Waiver of Right to Appeal.
In property owner’s action against township and township’s attorney where the trial court awarded the attorney a judgment for attorney fees and costs for defending the frivolous action, the property owner did not avail himself of the statutory options to release the lien under this section, but paid the judgment to the attorney and procured and filed a satisfaction of judgment on the record; under these circumstances, the property owner’s payment of the judgment was voluntary and constituted 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).
28-20-30. Cancellation of judgment against bankrupts — Procedure. [Repealed]
Repealed by S.L. 2007, ch. 275, § 3.
28-20-30.1. Effect of bankruptcy on judgment lien.
- If a judgment lien appears on a judgment debtor’s real property and the debtor is later the subject of bankruptcy proceedings in which the judgment lien is avoided or set aside, the judgment lien may be terminated of record by filing a certified copy of the bankruptcy court lien avoidance judgment.
- A prebankruptcy petition judgment does not create a lien on real property that is acquired by the judgment debtor after the filing of the bankruptcy petition which may be established by filing a copy of the discharge.
- A copy of the discharge may be filed to remove a judgment lien as a cloud on the homestead set aside to the bankruptcy debtor.
- Subsection 2 does not apply if the judgment creditor files a certified copy of an order or a judgment of the bankruptcy court which declares the debt is nondischargeable. A judgment creditor may record lis pendens stating the judgment creditor has filed a nondischargability action in bankruptcy court. This section does not apply to debts automatically excepted from discharge under section 523 of the United States Bankruptcy Code [11 U.S.C. 523].
- As used in this section, “files” or “filing” means a filing with the clerk of district court in the county in which the judgment is docketed or transcribed.
Source:
S.L. 2007, ch. 275, § 1.
28-20-31. Certificate of clerk of bankruptcy court to be prima facie evidence of service. [Repealed]
Repealed by S.L. 2007, ch. 275, § 3.
28-20-32. Affidavit of applicant to be served with notice of motion. [Repealed]
Repealed by S.L. 2007, ch. 275, § 3.
28-20-33. Mutual judgments set off.
Mutual final judgments may be set off pro tanto, the one against the other, by the court, upon proper application and notice.
Source:
C. Civ. P. 1877, § 305; R.C. 1895, § 5499; R.C. 1899, § 5499; R.C. 1905, § 7094; C.L. 1913, § 7706; R.C. 1943, § 28-2033.
Notes to Decisions
- Attorney’s Lien.
- Deduction by Jury.
- Divorce Decree.
- Equitable Interest.
- Excess.
- Exempt Property.
- Mutual Judgments.
- Rescission.
Attorney’s Lien.
Attorney’s lien is subject to prior and existing setoff claimed by defendant. Jacobsen v. Miller, 50 N.D. 828, 198 N.W. 349, 1924 N.D. LEXIS 36 (N.D. 1924).
Deduction by Jury.
Jury was entitled to deduct amount of judgment secured against plaintiff in a former action from damages awarded plaintiff if such judgment does not take exempt property from him. Krach v. Security State Bank, 43 N.D. 441, 175 N.W. 573, 1919 N.D. LEXIS 52 (N.D. 1919).
Divorce Decree.
Trial court was within its discretion in refusing to modify divorce decree to set off liability on tax judgment for years during which husband and wife were married because the liability was incurred by the husband after entrance of stipulated divorce decree providing for alimony and property settlement. Bosch v. Bosch, 197 N.W.2d 673, 1972 N.D. LEXIS 150 (N.D. 1972).
Equitable Interest.
Defendant, who purchased judgment of third party against plaintiff before notice of intervener’s equitable interest, had absolute right to interpose that judgment against plaintiff as a counterclaim. Clark v. Sullivan, 3 N.D. 280, 55 N.W. 733, 1893 N.D. LEXIS 24 (N.D. 1893).
Excess.
Where a counterclaim is interposed and each party has a valid claim against the other, judgment for excess to party whose claim exceeds the other should be awarded. Kramer v. K. O. Lee & Son Co., 64 N.D. 84, 250 N.W. 373, 1933 N.D. LEXIS 250, 1933 N.D. LEXIS 251 (N.D. 1933).
Exempt Property.
A judgment that represents the proceeds of exempt property cannot be set off on a judgment against judgment creditor. Cleveland v. McCanna, 7 N.D. 455, 75 N.W. 908, 1898 N.D. LEXIS 98 (N.D. 1898).
Mutual Judgments.
Order of court allowing bankrupt’s account, and directing its payment by the receiver, was not such a mutual judgment as would permit judgment creditor to set off against bankrupt’s debt to him. Patterson v. Ward, 8 N.D. 87, 76 N.W. 1046, 1898 N.D. LEXIS 17 (N.D. 1898).
Rescission.
Buyer cannot recover purchase-money notes merged in judgment obtained by seller, but judgment for return of such money need not be conditioned for discharge or surrender of notes, since mutual judgments are subject to setoff. Holden v. Advance-Rumely Thresher Co., 61 N.D. 584, 239 N.W. 479, 1931 N.D. LEXIS 312 (N.D. 1931).
Collateral References.
Spouse’s right to set off debt owed by other spouse against accrued spousal or child support payments, 11 A.L.R.5th 259.
28-20-34. Interest rate on judgments.
Interest is payable on judgments entered in the courts of this state at the same rate as is provided in the original instrument upon which the action resulting in the judgment is based, which rate may not exceed the maximum rate provided in section 47-14-09. If such original instrument contains no provision as to an interest rate, or if the action resulting in the judgment was not based upon an instrument, interest is payable at the rate of twelve percent per annum through December 31, 2005. Beginning January 1, 2006, the interest is payable at a rate equal to the prime rate published in the Wall Street Journal on the first Monday in December of each year plus three percentage points rounded up to the next one-half percentage point and may not be compounded in any manner or form. On or before the twentieth day of December each year, the state court administrator shall determine the rate and shall transmit notice of that rate to all clerks of court and to the state bar association of North Dakota. As established, the rate shall be in effect beginning the first day of the following January through the last day of December in each year. Except as otherwise provided in this section, interest on all judgments entered in the courts of this state before January 1, 2006, must remain at the rate per annum which was legally prescribed at the time the judgments were entered, and such interest may not be compounded in any manner or form. Interest on unpaid child support obligations must be calculated under section 14-09-25 according to the rate currently in effect under this section regardless of the date the obligations first became due and unpaid.
Source:
Civ. C. 1877, § 1101; R.C. 1895, § 4067; R.C. 1899, § 4067; R.C. 1905, § 5514; C.L. 1913, § 6077; S.L. 1933, ch. 139, §§ 1, 2; 1935, ch. 158, § 1; 1937, ch. 150, § 1; R.C. 1943, § 28-2034; S.L. 1961, ch. 226, § 1; 1965 Sp., ch. 4, § 1; 1981, ch. 334, § 1; 2005, ch. 283, § 1.
Derivation:
Cal. Civ. C., 1920.
Notes to Decisions
- Appeal.
- Application.
- Child and Spousal Support Payments.
- Compounding of Interest.
- Damages.
- Date of Interest.
- Eminent Domain.
- Interest on Appeal.
- Monetary Award Due in Future.
- Monetary Awards in Divorce Actions.
- No Contract Basis.
- Retroactive Statutes.
Appeal.
An appeal does not toll the accrual of interest, and a judgment affirmed on appeal bears interest at the statutory rate from the date of its original entry. Dick v. Dick, 434 N.W.2d 557, 1989 N.D. LEXIS 16 (N.D. 1989).
Application.
This section applies to legal rate of interest on judgments, and not legal rate of prejudgment interest; prejudgment interest is calculated in accordance with section 47-14-05. Bismarck Realty Co. v. Folden, 354 N.W.2d 636, 1984 N.D. LEXIS 324 (N.D. 1984).
District court did not err in awarding post-judgment interest because the arbitrator awarded partners damages for their claims under the construction contract, which stated payments due and unpaid under the contract would bear interest from the date payment was due at a rate of one and a half percent monthly; the arbitrator awarded the partners damages based on the construction contract and interest on the contractual damages at the rate the construction contract required. 26th St. Hospitality, LLP v. Real Builders, Inc., 2016 ND 95, 879 N.W.2d 437, 2016 N.D. LEXIS 89 (N.D. 2016).
Child and Spousal Support Payments.
The general rule is that interest on unpaid installments of alimony [spousal support] accrues on the date they become due. This general rule should logically apply to past-due child support payments as well as to past-due spousal support payments. Baranyk v. McDowell, 442 N.W.2d 423, 1989 N.D. LEXIS 124 (N.D. 1989).
As no mention is made in the legislative history regarding interest on judgments for unpaid child support obligations, the legislature intended that judgment interest be determined in the same manner as the judgments entered by the district court. The interest on a judgment is calculated at the rate provided in this section. Baranyk v. McDowell, 442 N.W.2d 423, 1989 N.D. LEXIS 124 (N.D. 1989).
Although plaintiff alleged the State imposed unlawful interest rate charges on his past due child support, the interest charges were authorized under N.D.C.C. § 28-20-34. Riemers v. State, 738 N.W.2d 906, 2007 ND App 3, 2007 N.D. App. LEXIS 4 (N.D. Ct. App. 2007).
Compounding of Interest.
This section does not allow any type of compounding of interest, and where the decree set “interest compounded annually at the rate of 3.5%”, the decree was modified to reflect a simple interest rate of four percent per annum. Hendrickson v. Hendrickson, 553 N.W.2d 215, 1996 N.D. LEXIS 215 (N.D. 1996).
District court judgment which combined father’s child support arrears and accrued interest into a single docketed money judgment created the risk that the interest would be compounded in violation of this section; on remand district court was instructed to amend its order to specify that the defendant as of a certain date owed the plaintiff a principal sum in child support arrears and a certain sum of accrued interest, with interest continuing to accrue only upon each of the unpaid installments. Darling v. Gosselin, 1999 ND 8, 589 N.W.2d 192, 1999 N.D. LEXIS 8 (N.D. 1999).
Damages.
Interest payable on judgments is statutory damages. Swanson v. Flynn, 75 N.D. 597, 31 N.W.2d 320, 1948 N.D. LEXIS 85 (N.D. 1948).
Date of Interest.
Upon affirmance by appellate court, judgment bears interest from date of its original entry at rate of two percent per annum until paid. Geier v. Tjaden, 84 N.W.2d 582, 1957 N.D. LEXIS 136 (N.D. 1957).
Pursuant to N.D.C.C. § 28-20-34, the district court was authorized to award interest at the legal rate on the $150,000 obligation from the date the trial court entered a judgment in the quiet title action. Silbernagel v. Silbernagel, 2011 ND 140, 800 N.W.2d 320, 2011 N.D. LEXIS 139 (N.D. 2011).
Eminent Domain.
Where property had been taken from its owner for use as a public dump, this statute did not limit owner’s constitutional right to be compensated. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 1942 N.D. LEXIS 94 (N.D. 1942).
Interest on Appeal.
Liability of defendant to plaintiff for interest accrued upon district court’s original judgment was not limited to two percent, where supreme court directed district court to vacate and enter a new judgment in amount supreme court had determined. Donaldson v. City of Bismarck, 71 N.D. 592, 3 N.W.2d 808, 1942 N.D. LEXIS 94 (N.D. 1942).
Monetary Award Due in Future.
Where the trial court specifies a future date when a lump sum payment is due in a divorce action, interest accrues on the judgment from that date. Dick v. Dick, 434 N.W.2d 557, 1989 N.D. LEXIS 16 (N.D. 1989).
Monetary Awards in Divorce Actions.
If the judgment contains no reference to interest on a monetary award constituting division of property in a divorce action, this section comes into play, and the award draws interest at the statutory rate for judgments. Dick v. Dick, 434 N.W.2d 557, 1989 N.D. LEXIS 16 (N.D. 1989).
It was not error to apply a two percent interest rate to a wife's equalization payment from a husband, rather than the 6.5 percent rate in N.D.C.C. § 28-20-34 or the six percent rate in N.D.C.C. § 47-14-05, because (1) no party presented evidence as to the proper rate, and (2) the court explained the reasons for setting the rate at two percent, which was within the range of rates argued by the parties. Adams v. Adams, 2015 ND 112, 863 N.W.2d 232, 2015 N.D. LEXIS 112 (N.D. 2015).
District court did not abuse its discretion in awarding interest on the husband's delayed cash payments to the wife because it compromised between the parties' interest rate proposals and required the husband to pay interest on the remaining cash award. Rebel v. Rebel, 2016 ND 144, 882 N.W.2d 256, 2016 N.D. LEXIS 145 (N.D. 2016).
No Contract Basis.
Right to receive interest upon a judgment is not based in contract, because the judgment is not a contract between the parties. Swanson v. Flynn, 75 N.D. 597, 31 N.W.2d 320, 1948 N.D. LEXIS 85 (N.D. 1948).
Retroactive Statutes.
Statutory enactments reducing rate of interest on judgments applied retroactively. Swanson v. Flynn, 75 N.D. 597, 31 N.W.2d 320, 1948 N.D. LEXIS 85 (N.D. 1948).
Collateral References.
Validity and construction of state statute or rule allowing or changing rate of prejudgment interest in tort actions, 40 A.L.R.4th 147.
Retrospective application and effect of state statute or rule allowing interest or changing rate of interest on judgments or verdicts, 41 A.L.R.4th 694.
Right to prejudgment interest on punitive or multiple damages awards, 9 A.L.R.5th 63.
28-20-35. Cancellation of judgment of record.
- For judgments initially docketed before August 1, 2021, after ten years after the entry of a judgment that has not been renewed, or after twenty years after the entry of a judgment that has been renewed, the judgment must be canceled of record.
- For judgments initially docketed on or after August 1, 2021, after twenty years after the entry of a judgment is docketed, the judgment must be canceled of record.
Source:
S.L. 1955, ch. 206, § 1; R.C. 1943, 1957 Supp., § 28-2035; 2021, ch. 250, § 5, effective August 1, 2021.
Cross-References.
Criminal mischief or willful destruction of property by minor, civil judgment for damages not to be canceled, see § 32-03-09.2.
Notes to Decisions
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).
Judgment Not Cancelled.
Judgment was not cancelled where the original judgment was entered on August 1, 1983, the remaining balance was renewed within the ten year period on July 9, 1993, and it had not been twenty years since entry. Ruscheinsky v. Ulrich, 2000 ND 133, 612 N.W.2d 283, 2000 N.D. LEXIS 137 (N.D. 2000).
Unenforceable Debt.
A valid, legally enforceable debt is an essential element of an action to set aside a fraudulent transfer. Because the judgment against original debtor was no longer enforceable, it could not set aside the transfer of $9500 to his son; there was no allegation that judgment debtor was absent from the state to toll the statute of limitations, nor was this a separate action upon the original judgment. Jahner ex rel. Jahner v. Jacob, 515 N.W.2d 183, 1994 N.D. LEXIS 99 (N.D. 1994).
District court did not err in concluding that the creditor’s attempt to collect on a 1989 North Carolina judgment against the debtor was no longer enforceable where the North Carolina judgment expired on January 10, 2010, and there was no statute that allowed for tolling of the limitation period in N.D.C.C. § 28-20-35. Investors Title Ins. Co. v. Herzig, 2011 ND 7, 793 N.W.2d 371, 2011 N.D. LEXIS 10 (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 under N.D.C.C. § 28-20-35—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).
28-20-36. Application of partial payments on judgments.
A partial payment made on a judgment must be applied first to postjudgment costs. If the payment exceeds the costs, the excess amount must be applied toward satisfying the interest due. If the payment exceeds the costs and interest, the excess amount must be applied toward discharging the judgment amount, and the subsequent interest is to be computed on the balance of the judgment amount remaining due. If the payment falls short of satisfying the costs and interest, interest continues to accrue on the former judgment amount until a payment is made that exceeds the sum of the costs and interest due at the time of payment, and then the excess amount must be applied toward discharging the judgment amount, and interest accrues thereafter on the balance of the judgment amount remaining due. This section does not apply to the collection of any debt owed to the state or a political subdivision.
Source:
S.L. 1999, ch. 284, § 2.
Note.
Section 3 of chapter 284, S.L. 1999, provides: “ RETROACTIVE APPLICATION OF ACT. This Act applies to each partial payment made on or after the effective date of this Act [August 1, 1999].”
CHAPTER 28-20.1 Enforcement of Foreign Judgments
28-20.1-01. Definition.
In this chapter, “foreign judgment” means any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state.
Source:
S.L. 1969, ch. 294, § 1.
Notes to Decisions
Foreign Custody Decree.
Enforcement of a foreign custody decree under former section 14-14-15 of the Uniform Child Custody Jurisdiction Act was required to be accomplished in compliance with the provisions of this chapter. Beck v. Smith, 296 N.W.2d 886, 1980 N.D. LEXIS 280 (N.D. 1980).
Foreign Judgments.
Judgments of foreign countries are not included in the definition of foreign judgment for purposes of this chapter; language “any judgment, decree, or order of a court of the United States or of any other court which is entitled to full faith and credit in this state” refers to Article VI, section 1 of the United States Constitution, which provides that full faith and credit shall be given to the public acts, records, and judicial proceedings of every other state. Medical Arts Bldg. v. Eralp, 290 N.W.2d 241, 1980 N.D. LEXIS 209 (N.D. 1980).
District court properly vacated a Missouri foreign judgment as void because it was not entitled to full faith and credit since an employee failed to explain how jurisdiction was acquired for the entry of a judgment based on a settlement agreement to which the North Dakota Workforce Safety and Insurance (WSI) was not a party; WSI was not a party to the Missouri administrative proceedings and was not a party to the settlement agreement. Oden v. Minot Builders Supply, 2021 ND 30, 955 N.W.2d 102, 2021 N.D. LEXIS 22 (N.D. 2021).
Collateral References.
Construction and application of Uniform Foreign Money-Judgments Recognition Act, 88 A.L.R.5th 545.
Comparative Legislation.
Jurisdictions which have enacted the Uniform Enforcement of Foreign Judgments Act (1964 Act) include:
Ala. Code §§ 6-9-230 to 6-9-238.
Alaska Stat. §§ 09.30.200 to 09.30.270.
Ariz. Rev. Stat. Ann. §§ 12-1701 to 12-1708.
Colo. Rev. Stat. §§ 13-53-101 to 13-53-108.
Conn. Gen. Stat. §§ 52-604 to 52-609.
Del. Code Ann. tit. 10, §§ 4781 to 4787.
Fla. Stat. §§ 55.501 to 55.607.
Ga. Code §§ 9-12-130 to 9-12-138.
Hawaii Rev. Stat. §§ 636C-1 to 636C-8.
Idaho Code §§ 10-1301 to 10-1308.
Iowa Code §§ 626A.1 to 626A.8.
Kan. Stat. Ann. §§ 60-3001 to 60-3008.
Ky. Rev. Stat. §§ 426.950 to 426.990.
La. Rev. Stat. Ann. §§ 13:4241 to 13:4247.
Me. Rev. Stat. Ann. tit. 14, §§ 8001 to 8008.
Md. Cts. & Jud. Proc. Code Ann. §§ 11-801 to 11-807.
Minn. Stat. §§ 548.26 to 548.33.
Miss. Code Ann. §§ 11-7-301 to 11-7-309.
Mont. Code Ann. §§ 25-9-501 to 25-9-508.
Nev. Rev. Stat. §§ 17.330 to 17.400.
N.M. Stat. Ann. §§ 39-4A-1 to 39-4A-6.
N.C. Gen. Stat. §§ 1C-1701 to 1C-1708.
Ohio Rev. Code Ann. §§ 2329.021 to 2329.027.
Okla. Stat. tit. 12, §§ 719 to 726.
Or. Rev. Stat. §§ 24.105 to 24.175.
R.I. Gen. Laws §§ 9-32-1 to 9-32-8.
S.D. Cod. Laws §§ 15-16A-1 to 15-16A-10.
Tenn. Code Ann. §§ 26-6-101 to 26-6-108.
Va. Code Ann. §§ 8.01-465.1 to 8.01-465.5.
Wash. Rev. Code §§ 6.36.010 to 6.36.910.
W. Va. Code §§ 55-14-1 to 55-14-8.
Wis. Stat. § 806.24.
Other jurisdictions adopting the 1948 Uniform Enforcement of Foreign Judgments Act include:
Mo. Rev. Stat. § 511.760.
28-20.1-02. Filing and status of foreign judgments.
A copy of any foreign judgment authenticated in accordance with the act of Congress or the statutes of this state may be filed in the office of the clerk of any district court of any county of this state. The clerk shall treat the foreign judgment in the same manner as a judgment of the district court of any county of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of a district court of any county of this state and may be enforced or satisfied in like manner.
Source:
S.L. 1969, ch. 294, § 2; 1991, ch. 339, § 1; 1997, ch. 51, § 22.
Notes to Decisions
Lien.
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).
Law Reviews.
North Dakota’s New Rules Respecting Garnishment and the Property Exempt Therefrom, 58 N.D. L. Rev. 183 (1982).
28-20.1-03. Notice of filing.
- At the time of filing of the foreign judgment, the judgment creditor or the judgment creditor’s lawyer shall make and file with the clerk of court an affidavit setting forth the name and last-known post-office address of the judgment debtor and otherwise complying with section 28-20-15.
- Promptly upon the filing of a foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice must include the name and post-office address of the judgment creditor and the judgment creditor’s lawyer, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
- No execution or other process for enforcement of a foreign judgment filed hereunder may issue until ten days after the date the judgment is filed.
Source:
S.L. 1969, ch. 294, § 3; 1997, ch. 51, § 23.
Notes to Decisions
Notice.
Construing subsection (3) in a practical manner, giving consideration to the context of the statute and the purpose for which it was enacted, a judgment creditor may not execute on or commence other processes for enforcement of a foreign judgment until the notice procedures provided in subsection (2) have been satisfied. Brossart v. Janke, 2020 ND 98, 942 N.W.2d 856, 2020 N.D. LEXIS 103 (N.D. 2020).
Because the notice requirements provided in subsection (2) are in conflict with the procedures in N.D. R. Civ. P. 5, and under N.D. R. Civ. P. 81, the requirements provided in statute prevail. Brossart v. Janke, 2020 ND 98, 942 N.W.2d 856, 2020 N.D. LEXIS 103 (N.D. 2020).
Because judgment debtors were informed of the proceedings against them and had an opportunity to respond prior to the court issuing its order, they suffered no prejudice from the failure to promptly comply with subsection (2); therefore, the district court did not abuse its discretion by ordering the debtors to answer interrogatories. Brossart v. Janke, 2020 ND 98, 942 N.W.2d 856, 2020 N.D. LEXIS 103 (N.D. 2020).
District court erred, as a matter of law, in its conclusion that judgment debtors were provided notice under subsection (2) through the notice of filing of the federal judgment served on the attorney who represented them in the federal lawsuit because subsection (2) required the clerk of court or the defendants to mail notice of the filing of the federal judgment to the creditors, not their attorney. Brossart v. Janke, 2020 ND 98, 942 N.W.2d 856, 2020 N.D. LEXIS 103 (N.D. 2020).
Stay of Enforcement Proceedings.
Whether or not enforcement proceedings were stayed from the time the judgment debtor acquired knowledge of the filing of a foreign judgment without having been mailed notice was immaterial because, under the facts of the case, the result was the same; whether enforcement proceedings were stayed for a period of ten days a certain date was immaterial because the district court did not issue its order until more than ten days after the judgment creditors were provided notice. Brossart v. Janke, 2020 ND 98, 942 N.W.2d 856, 2020 N.D. LEXIS 103 (N.D. 2020).
28-20.1-04. Stay.
- If the judgment debtor shows the district court of any county that an appeal from the foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.
- If the judgment debtor shows the district court of any county any ground upon which enforcement of a judgment of any district court of any county of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period, upon requiring the same security for satisfaction of the judgment which is required in this state.
Source:
S.L. 1969, ch. 294, § 4.
28-20.1-05. Fees.
Any person filing a foreign judgment shall pay to the clerk of court a filing fee as prescribed in subdivision d of subsection 1 of section 27-05.2-03. Fees for docketing, transcription, or other enforcement proceedings must be as provided for judgments of the district court of any county of this state.
Source:
S.L. 1969, ch. 294, § 5; 1985, ch. 336, § 9; 1999, ch. 107, § 4; 1999, ch. 278, § 54.
28-20.1-06. Optional procedure.
The right of a judgment creditor to bring an action to enforce the creditor’s judgment instead of proceeding under this chapter remains unimpaired.
Source:
S.L. 1969, ch. 294, § 6.
Notes to Decisions
Full Faith and Credit.
A 1980 South Dakota judgment arising from an action brought on a 1959 South Dakota judgment was entitled to full faith and credit in North Dakota, and the North Dakota statute of limitations began to run from the date of the 1980 judgment since that judgment was considered a new judgment under South Dakota law. Yusten v. Monson, 325 N.W.2d 285, 1982 N.D. LEXIS 363 (N.D. 1982).
28-20.1-07. Uniformity of interpretation. [Repealed]
Repealed by S.L. 1983, ch. 82, § 154.
28-20.1-08. Short title.
This chapter may be cited as the Uniform Enforcement of Foreign Judgments Act.
Source:
S.L. 1969, ch. 294, § 8.
CHAPTER 28-20.2 Uniform Foreign Money — Judgments Recognition Act [Repealed]
28-20.2-01. Definitions. [Repealed]
Source:
S.L. 2003, ch. 268, § 1; repealed by 2017, ch. 226, § 2, effective August 1, 2017.
28-20.2-02. Applicability. [Repealed]
Source:
S.L. 2003, ch. 268, § 2; repealed by 2017, ch. 226, § 2, effective August 1, 2017.
28-20.2-03. Recognition and enforcement. [Repealed]
Source:
S.L. 2003, ch. 268, § 3; repealed by 2017, ch. 226, § 2, effective August 1, 2017.
28-20.2-04. Grounds for nonrecognition. [Repealed]
Source:
S.L. 2003, ch. 268, § 4; repealed by 2017, ch. 226, § 2, effective August 1, 2017.
28-20.2-05. Personal jurisdiction. [Repealed]
Source:
S.L. 2003, ch. 268, § 5; repealed by 2017, ch. 226, § 2, effective August 1, 2017.
28-20.2-06. Stay in case of appeal. [Repealed]
Source:
S.L. 2003, ch. 268, § 6; repealed by 2017, ch. 226, § 2, effective August 1, 2017.
CHAPTER 28-20.3 Uniform Foreign Money Judgments Recognition Act
Source:
S.L. 2017, sb2169, § 1, effective August 1, 2017.
28-20.3-01. Definitions.
As used in this chapter:
-
“Foreign country” means a government other than:
- The United States;
- A state, district, commonwealth, territory, or insular possession of the United States; or
- Any other government with regard to which the decision in this state as to whether to recognize a judgment of that government’s courts is initially subject to determination under section 1 of article IV of the Constitution of the United States.
- “Foreign-country judgment” means a judgment of a court of a foreign country.
Source:
S.L. 2017, ch. 226, § 1, effective August 1, 2017.
28-20.3-02. Applicability.
-
Except as otherwise provided in subsection 2, this chapter applies to a foreign-country judgment to the extent the judgment:
- Grants or denies recovery of a sum of money; and
- Under the law of the foreign country where rendered, is final, conclusive and enforceable.
-
This chapter does not apply to a foreign-country judgment, even if the judgment grants or denies recovery of a sum of money, to the extent the judgment is:
- A judgment for taxes;
- A fine or other penalty; or
- A judgment for divorce, support, or maintenance, or other judgment rendered in connection with domestic relations.
- A party seeking recognition of a foreign-country judgment has the burden of establishing that this chapter applies to the foreign-country judgment.
Source:
S.L. 2017, ch. 226, § 1, effective August 1, 2017.
28-20.3-03. Standards for recognition of foreign-country judgment.
- Except as otherwise provided in subsections 2 and 3, a court of this state shall recognize a foreign-country judgment to which this chapter applies.
-
A court of this state may not recognize a foreign-country judgment if:
- The judgment was rendered under a judicial system that does not provide impartial tribunals or procedures compatible with the requirements of due process of law;
- The foreign court did not have personal jurisdiction over the defendant; or
- The foreign court did not have jurisdiction over the subject matter.
-
A court of this state need not recognize a foreign-country judgment if:
- The defendant in the proceeding in the foreign court did not receive notice of the proceeding in sufficient time to enable the defendant to defend;
- The judgment was obtained by fraud that deprived the losing party of an adequate opportunity to present its case;
- The judgment or the cause of action on which the judgment is based is repugnant to the public policy of this state or of the United States;
- The judgment conflicts with another final and conclusive judgment;
- The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be determined otherwise than by proceedings in that foreign court;
- In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action;
- The judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment; or
- The specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process of law.
- A party resisting recognition of a foreign-country judgment has the burden of establishing that a ground for nonrecognition stated in subsection 2 or 3 exists.
Source:
S.L. 2017, ch. 226, § 1, effective August 1, 2017.
28-20.3-04. Personal jurisdiction.
-
A foreign-country judgment may not be refused recognition for lack of personal jurisdiction if:
- The defendant was served with process personally in the foreign country;
- The defendant voluntarily appeared in the proceeding, other than for the purpose of protecting property seized or threatened with seizure in the proceeding or of contesting the jurisdiction of the court over the defendant;
- The defendant, before the commencement of the proceeding, had agreed to submit to the jurisdiction of the foreign court with respect to the subject matter involved;
- The defendant was domiciled in the foreign country when the proceeding was instituted or was a corporation or other form of business organization that had its principal place of business in, or was organized under the laws of, the foreign country;
- The defendant had a business office in the foreign country and the proceeding in the foreign court involved a cause of action arising out of business done by the defendant through that office in the foreign country; or
- The defendant operated a motor vehicle or airplane in the foreign country and the proceeding involved a cause of action arising out of that operation.
- The list of bases for personal jurisdiction in subsection 1 is not exclusive. The courts of this state may recognize bases of personal jurisdiction other than those listed in subsection 1 as sufficient to support a foreign-country judgment.
Source:
S.L. 2017, ch. 226, § 1, effective August 1, 2017.
28-20.3-05. Procedure for recognition of foreign-country judgment.
- If recognition of a foreign-country judgment is sought as an original matter, the issue of recognition must be raised by filing an action seeking recognition of the foreign-country judgment.
- If recognition of a foreign-country judgment is sought in a pending action, the issue of recognition may be raised by counterclaim, cross-claim, or affirmative defense.
Source:
S.L. 2017, ch. 226, § 1, effective August 1, 2017.
28-20.3-06. Effect of recognition of foreign-country judgment.
If the court in a proceeding under section 28-20.3-05 finds the foreign-country judgment is entitled to recognition under this chapter then, to the extent the foreign-country judgment grants or denies recovery of a sum of money, the foreign-country judgment is:
- Conclusive between the parties to the same extent as the judgment of a sister state entitled to full faith and credit in this state would be conclusive; and
- Enforceable in the same manner and to the same extent as a judgment rendered in this state.
Source:
S.L. 2017, ch. 226, § 1, effective August 1, 2017.
28-20.3-07. Stay of proceedings pending appeal of foreign-country judgment.
If a party establishes that an appeal from a foreign-country judgment is pending or will be taken, the court may stay any proceedings with regard to the foreign-country judgment until the appeal is concluded, the time for appeal expires, or the appellant has had sufficient time to prosecute the appeal and has failed to do so.
Source:
S.L. 2017, ch. 226, § 1, effective August 1, 2017.
28-20.3-08. Statute of limitations.
An action to recognize a foreign-country judgment must be commenced within the earlier of the time during which the foreign-country judgment is effective in the foreign country or fifteen years from the date the foreign-country judgment became effective in the foreign country.
Source:
S.L. 2017, ch. 226, § 1, effective August 1, 2017.
28-20.3-09. Uniformity of interpretation.
In applying and construing this uniform chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
Source:
S.L. 2017, ch. 226, § 1, effective August 1, 2017.
CHAPTER 28-21 Execution of the Judgment
28-21-01. Execution at any time within ten years.
A judgment creditor or the party’s duly appointed personal representatives at any time within ten years after the entry of judgment may proceed to enforce the judgment by execution as provided in this chapter. If the judgment creditor in a mortgage foreclosure does not proceed within sixty days after entry of judgment in the foreclosure to serve a special execution and proceed without delay to a sheriff’s sale, any other lienholder or other interested person may obtain the special execution and proceed to arrange for a sheriff’s sale.
Source:
C. Civ. P. 1877, § 306; R.C. 1895, § 5500; R.C. 1899, § 5500; R.C. 1905, § 7099; C.L. 1913, § 7713; R.C. 1943, § 28-2101; 2009, ch. 275, § 1.
Derivation:
Wait’s (N.Y.) Code, 283; Harston’s (Cal.) Practice, 681.
Notes to Decisions
- Death of Creditor.
- Debtor’s Absence.
- Disputable Presumption.
- Ejectment of Railroad.
- Execution on Partial Summary Judgment.
- Justice Court Judgment.
- Levy and Sale.
- Statute of Limitation.
- Timeliness.
Death of Creditor.
If the judgment creditor dies after judgment is rendered, execution may be issued by the representatives of the deceased and in his name. Daisy Roller Mills v. Ward, 6 N.D. 317, 70 N.W. 271, 1897 N.D. LEXIS 1 (N.D. 1897).
Debtor’s Absence.
A judgment cannot be enforced by an execution issued more than ten years after its entry, although the debtor has been absent part of the time from the state. Weisbecker v. Cahn, 14 N.D. 390, 104 N.W. 513, 1905 N.D. LEXIS 54 (N.D. 1905).
Disputable Presumption.
Where legislature changed statutory period of limitation from five to ten years, execution after five years had expired was upheld because the statute was a disputable presumption. Dakota Inv. Co. v. Sullivan, 9 N.D. 303, 83 N.W. 233, 1900 N.D. LEXIS 143 (N.D. 1900).
Ejectment of Railroad.
If the execution of a judgment of ejectment against a railroad corporation will operate harshly, and will seriously affect public interests, a court of equity in its discretion may suspend its execution for a period sufficient to enable it to prosecute condemnation proceedings. Griswold v. Minneapolis, S. P. & S. S. M. Ry., 12 N.D. 435, 97 N.W. 538, 1903 N.D. LEXIS 49 (N.D. 1903).
Execution on Partial Summary Judgment.
Partial summary judgment which did not adjudicate the defendants’ counterclaims and which did not contain a N.D.R.Civ.P., Rule 54(b) statement was not a final judgment and, therefore, it was improper to execute on it. Striegel v. Dakota Hills, 343 N.W.2d 785, 1984 N.D. LEXIS 243 (N.D. 1984).
Justice Court Judgment.
This statute, as applied to judgment of justice court, means ten years from entry by justice and not ten years from time transcript is filed in district court. Holton v. Schmarback, 15 N.D. 38, 106 N.W. 36, 1905 N.D. LEXIS 104 (N.D. 1905).
Levy and Sale.
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).
Statute of Limitation.
Proceedings to enforce judgment instituted while it was still alive, will fail if not completed within ten-year period. Merchants Nat'l Bank v. Braithwaite, 7 N.D. 358, 75 N.W. 244, 1898 N.D. LEXIS 62 (N.D. 1898).
Timeliness.
N.D.C.C. § 28-21-01 does not limit a sale to 60 days after receipt of a writ of execution by a sheriff; instead, the statute specifically provides that under some circumstances the execution is returnable to the clerk within a reasonable time following the sale, or within ninety days after receipt. Moreover, if a levy has been made and a party raises an issue about ownership of the property or exemptions, a court may extend the execution for a reasonable time. Tarnavsky v. Rankin, 2009 ND 149, 771 N.W.2d 578, 2009 N.D. LEXIS 160 (N.D. 2009).
Collateral References.
Statutory provisions respecting registration of mortgages or other liens on personal property in case of residents of other states as affecting priority of execution lien over lien of chattel mortgage or conditional sale contract, 10 A.L.R.2d 764.
Execution in action on note or bond, not resulting in sale of mortgaged property, as precluding foreclosure of real estate mortgage, 37 A.L.R.2d 959.
Part payment or promise to pay judgment as affecting time for execution, 45 A.L.R.2d 967.
28-21-02. Stay of execution but not of judgment. [Repealed]
Superseded by N.D.R.Civ.P., Rule 62.
28-21-03. Two kinds of execution.
There are two kinds of execution, one against the property of the judgment debtor and another for the delivery of the possession of property and any damages for withholding the property.
Source:
C. Civ. P. 1877, § 309; R.C. 1895, § 5502; R.C. 1899, § 5502; R.C. 1905, § 7101; C.L. 1913, § 7715; R.C. 1943, § 28-2103; 2009, ch. 275, § 2.
Derivation:
Wait’s (N.Y.) Code, 286.
Notes to Decisions
Equitable Interest in Property.
An equitable interest in property, whether real or personal, is subject to execution, levy and sale. Farmers State Bank v. Slaubaugh, 366 N.W.2d 804, 1985 N.D. LEXIS 313 (N.D. 1985).
An equitable interest in real estate under a contract for deed is subject to execution, levy and sale. Farmers State Bank v. Slaubaugh, 366 N.W.2d 804, 1985 N.D. LEXIS 313 (N.D. 1985).
28-21-03.1. General execution.
If the judgment requires the payment of money or the delivery of property, the judgment may be enforced by execution.
Source:
S.L. 2009, ch. 275, § 3.
Effective Date.
This section became effective August 1, 2009.
28-21-04. Special executions.
If the judgment requires the sale of property, the judgment may be enforced by a special execution directing the sale and application of the proceeds in conformity with the judgment. Real property must be sold in the county in which it is located.
Source:
C. Civ. P. 1877, § 308; R.C. 1895, § 5501; R.C. 1899, § 5501; R.C. 1905, § 7100; C.L. 1913, § 7714; R.C. 1943, § 28-2104; 2009, ch. 275, § 4.
Derivation:
Wait’s (N.Y.) Code, 285; Harston’s (Cal.) Practice, 684.
Notes to Decisions
Failure to Execute Immediately.
The failure to execute immediately after the entry of judgment did not operate to defeat the judgment itself, where the special execution satisfactorily complied with N.D.C.C. § 28-21-06. Bank of Steele v. Lang, 423 N.W.2d 504, 1988 N.D. LEXIS 127 (N.D. 1988).
Maintenance Payments.
Duty of maintenance which may be incorporated in a divorce decree is specific and, even though it requires payment in installments, cannot be enforced by execution. Gross v. Gross, 53 N.D. 480, 206 N.W. 793, 1925 N.D. LEXIS 9 (N.D. 1925).
Mechanic’s Lien.
Holder of mechanic’s lien may have it enforced by sale of property which it covers and application of proceeds. McCormack v. Phillips, 34 N.W. 39, 4 Dakota 506, 1887 Dakota LEXIS 15 (Dakota 1887).
Special Execution.
District court erred in granting a mover and a landlord summary judgment in tenants' conviction action and in allowing them the right to dispose of the tenants' property because the landlord failed to serve a special execution and to dispose of property valued in excess of $ 1,500 without legal process; a special execution was required but the landlord admitted that no special execution was obtained or served on the tenants. Poppe v. Stockert, 2015 ND 252, 870 N.W.2d 187, 2015 N.D. LEXIS 256 (N.D. 2015).
28-21-04.1. Self-execution judgments.
If the judgment requires the performance of any act, obedience to that act may be enforced by service of a certified copy of the judgment upon the party against whom it is given, or the person who is required to obey the same. Refusal may be punished by contempt.
Source:
S.L. 2001, ch. 291, § 1; 2003, ch. 278, § 1; 2009, ch. 275, § 5.
28-21-04.2. Summary execution on moneys retained pursuant to garnishment.
If a judgment creditor proposes to execute on moneys owed to the judgment debtor by a third party who is retaining the money pursuant to garnishment, the execution must be made between twenty and three hundred sixty days after service of the garnishment summons. The execution may be served by personal service or by certified mail upon the third party by a sheriff or by an attorney licensed to practice law in this state. The execution may be directed to the sheriff of any county. A transcript of the judgment need not be filed in the county of the sheriff to whom the execution is directed. Upon receipt, the third party shall remit the amount due under the garnishment to the sheriff or the attorney who shall proceed in all other respects like the sheriff making a similar execution. If the judgment debtor files a claim of exemptions under section 32-09.1-22 within twenty days after service of the garnishment summons, an execution may not be made against moneys claimed as exempt and retained under the garnishment summons until the court determines that the moneys being garnished are not exempt.
Source:
S.L. 2009, ch. 275, § 6.
28-21-05. Execution issued to sheriff of counties where judgment docketed.
An execution may be issued by the clerk of court in which the judgment was entered to the sheriff of any county where the judgment is docketed. If the execution requires the delivery of real or personal property, the execution may be issued to the sheriff of any county where the property or portion of the property is situated. More than one execution may be issued at the same time to the sheriffs of different counties.
Source:
C. Civ. P. 1877, § 310; R.C. 1895, § 5503; R.C. 1899, § 5503; R.C. 1905, § 7102; C.L. 1913, § 7716; R.C. 1943, § 28-2105; S.L. 1987, ch. 385, § 3; 2009, ch. 275, § 7.
Notes to Decisions
Execution in Remote County.
Auditor will not be allowed to issue execution to sheriff of some county remote from debtor’s residence, where he had no business and no property, and then by simple return of judgment unsatisfied become entitled to appointment of receiver and sequestration of debtor’s property. Minkler v. United States Sheep Co., 4 N.D. 507, 62 N.W. 594, 1895 N.D. LEXIS 47 (N.D. 1895).
Sales of Real Property.
This section and N.D.C.C. § 28-23-05, require that all sales of real property, under execution, be held in the county where the real property is located. Rott v. Connecticut Gen. Life Ins. Co., 478 N.W.2d 570, 1991 N.D. LEXIS 225 (N.D. 1991), cert. denied, 504 U.S. 959, 112 S. Ct. 2313, 119 L. Ed. 2d 233, 1992 U.S. LEXIS 3339 (U.S. 1992).
Void Sale.
A sale is void if the sheriff lacked jurisdiction over the property, as in the case of inadequate notice, or when an execution is issued on a void judgment. 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).
Voidable Sale.
A voidable sale is one where the sheriff has authority to make the sale but exercises that authority in a manner that allows an interested party to challenge the sale, as when the sheriff fails to follow a manner-of-sale statute. 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).
28-21-05.1. Levy with certified copy of judgment.
A sheriff may levy upon a person’s personal property upon receipt of a certified copy of judgment docketed in any county requiring payment of money or the delivery of personal property. The judgment creditor may also proceed to enforce the judgment by execution.
Source:
S.L. 1985, ch. 348, § 1; 2009, ch. 275, § 8.
28-21-05.2. Department of human services may issue executions for child support arrearages. [Effective through August 31, 2022]
- Notwithstanding section 28-21-05, if the judgment debtor is listed on the arrears registry as defined in section 14-09-09.10, or if the judgment debtor meets criteria established by the secretary of the United States department of health and human services that apply when a financial institution is doing business in two or more states, the department of human services may issue an execution, against the property of the judgment debtor, to the sheriff of any county in which the property may be found.
- A writ of execution issued by the department of human services must be issued as provided in section 28-21-06, except the past-due support need not be docketed and the writ may be issued in a form prescribed by the department of human services. A writ issued under this section must be accompanied by a copy of the payment records maintained under section 50-09-02.1 which has been certified under section 14-08.1-08.
- A writ issued by the department of human services is returnable to the department.
Source:
S.L. 1997, ch. 404, § 46; 2001, ch. 152, § 5; 2005, ch. 415, § 8.
28-21-05.2. Department of health and human services may issue executions for child support arrearages. [Effective September 1, 2022]
- Notwithstanding section 28-21-05, if the judgment debtor is listed on the arrears registry as defined in section 14-09-09.10, or if the judgment debtor meets criteria established by the secretary of the United States department of health and human services that apply when a financial institution is doing business in two or more states, the department of health and human services may issue an execution, against the property of the judgment debtor, to the sheriff of any county in which the property may be found.
- A writ of execution issued by the department of health and human services must be issued as provided in section 28-21-06, except the past-due support need not be docketed and the writ may be issued in a form prescribed by the department of health and human services. A writ issued under this section must be accompanied by a copy of the payment records maintained under section 50-09-02.1 which has been certified under section 14-08.1-08.
- A writ issued by the department of health and human services is returnable to the department.
Source:
S.L. 1997, ch. 404, § 46; 2001, ch. 152, § 5; 2005, ch. 415, § 8; 2021, ch. 352, § 339, effective September 1, 2022.
28-21-06. Issuance and contents of execution.
An execution must be issued in the name of the state of North Dakota, attested in the name of the judge of the court that entered the judgment, sealed with the seal of the court, subscribed by the clerk of that court, and directed and delivered to a sheriff. The execution must describe the judgment, stating the date and time the judgment was filed with the clerk, the courts and counties to which the judgment has been transcribed, the names of the parties, and the last-known address of the judgment debtor. A special execution must state the amount of money due to the judgment creditor, the date and time the judgment was docketed by the clerk, the rate of interest applicable to the judgment, the amount of the costs accrued on the judgment as of the date of issuance of the execution, and if the execution is being issued to a sheriff of a different county, the date and time the judgment was docketed in that county. If the execution is for the delivery of the possession of property, the execution must also particularly describe the property to be delivered, identify the party entitled to possession of the property, and if the same judgment orders the judgment debtor to pay any costs, damages, or rents or profits to the party entitled to possession of the property, list the amounts due as of the date of issuance of the execution. Upon receipt of an execution, the sheriff shall:
- Satisfy the judgment with interest and accruing costs, which include sheriff and county costs, out of the personal property of the judgment debtor, and if sufficient personal property cannot be found, out of the real property belonging to the debtor on the date when the judgment was docketed in the county or at any time after that date. If property of the debtor is in the hands of a personal representative, heir, devisee, legatee, tenant of real property, or trustee, the sheriff may satisfy the judgment out of that property; or
- If the execution is for the delivery of the possession of property, deliver the property to the party entitled to the property and satisfy any costs, damages, or rents or profits recovered by the same judgment out of the personal property of the judgment debtor and if sufficient personal property cannot be found, out of the real property of the judgment debtor on the date when the judgment was docketed in the county or at any time after that date. If the property cannot be delivered, the sheriff may satisfy the judgment in the amount of the value of the property out of the real and personal property of the judgment debtor as if an execution had been issued.
Source:
C. Civ. P. 1877, § 312; R.C. 1895, § 5505; R.C. 1899, § 5505; R.C. 1905, § 7104; C.L. 1913, § 7718; R.C. 1943, § 28-2106; S.L. 1985, ch. 347, § 1; 1987, ch. 385, § 4; 1997, ch. 276, § 1; 2009, ch. 275, § 9.
Derivation:
Wait’s (N.Y.) Code, 289; Harston’s (Cal.) Practice, 682.
Notes to Decisions
Costs of Execution.
The debtor should bear the costs of an execution sale, and the term “sheriff and county costs,” include all reasonable costs of sale. Butler Mach. v. Haugen (In re Haugen), 998 F.2d 1442, 1993 U.S. App. LEXIS 18512 (8th Cir. N.D. 1993), cert. denied, 510 U.S. 1093, 114 S. Ct. 925, 127 L. Ed. 2d 218, 1994 U.S. LEXIS 1195 (U.S. 1994).
Failure to Execute Immediately.
The failure to execute immediately after the entry of judgment did not operate to defeat the judgment itself, where the special execution satisfactorily complied with this section. Bank of Steele v. Lang, 423 N.W.2d 504, 1988 N.D. LEXIS 127 (N.D. 1988).
“Execution.”
An execution is a writ of the court that entered the judgment. Mees v. Ereth, 466 N.W.2d 135, 1991 N.D. LEXIS 26 (N.D. 1991).
28-21-07. Time of return.
The execution must be returned to the clerk within sixty days after the receipt by the officer. If a sheriff’s levy has been made within the sixty days, the execution must be returned within a reasonable time following the completion of the sale of the property or ninety days after receipt by the officer. If a levy has been made and the issue of ownership of the property or interest in the property is raised by any party, or if the issue whether the property is exempt under chapter 28-22 is raised by either party, the court having jurisdiction may extend, for good cause shown, the execution for a reasonable time to accommodate due notice and hearing to determine these issues and to provide time for the publication of notice of sale and sale of the property subject to execution.
Source:
C. Civ. P. 1877, § 313; R.C. 1895, § 5506; R.C. 1899, § 5506; R.C. 1905, § 7105; C.L. 1913, § 7719; R.C. 1943, § 28-2107; S.L. 1985, ch. 347, § 2; 1993, ch. 103, § 5; 2009, ch. 275, § 10.
Derivation:
Wait’s (N.Y.) Code, 290; Harston’s (Cal.) Practice, 683.
Notes to Decisions
Costs of Execution.
Where the sheriff believed an auctioneer was needed to bring the best price because so much property was involved, the hiring of an auctioneer was held to constitute “sheriff or county costs” that could be paid from the proceeds of the execution sale prior to application of the proceeds to the satisfaction of the debtor’s liability. Butler Mach. v. Haugen (In re Haugen), 998 F.2d 1442, 1993 U.S. App. LEXIS 18512 (8th Cir. N.D. 1993), cert. denied, 510 U.S. 1093, 114 S. Ct. 925, 127 L. Ed. 2d 218, 1994 U.S. LEXIS 1195 (U.S. 1994).
Time of Sale.
Sale was held on August 3, 2007, within the time contemplated by N.D.C.C. § 28-21-07, because the sheriff received the writ of execution on May 31, 2007, and the sheriff served a notice of levy on the property owner on July 10, 2007. Although the owner thereafter gave the sheriff an affidavit of exemptions, the record did not reflect that the court extended the execution. Tarnavsky v. Rankin, 2009 ND 149, 771 N.W.2d 578, 2009 N.D. LEXIS 160 (N.D. 2009).
28-21-08. Property subject to levy — Manner of levy.
-
An interest in property of the judgment debtor not exempt by law is subject to execution. Shares and interests in any corporation or company, debts and credits, and all other property not capable of manual delivery may be taken on execution and sold as provided in this chapter. The levy under an execution must be made as follows:
- On real property, the sheriff shall file a notice of levy with the recorder of the county in which the property is located which has been signed by the sheriff and which states the names of the parties to the action and a description of the property.
- On personal property capable of manual delivery, the sheriff shall take the property into custody. When taking the property, the sheriff shall deliver a copy of the execution and notice of levy to the person from whom the property was taken.
- On money, judgments, drafts, promissory notes, or other papers of like character, by serving a copy of the execution to the person who has custody of the property, except for wage garnishment.
- On other personal property, the sheriff shall leave a copy of the execution and a notice of levy with the person holding the property. If the property consists of a right or share in the stock of a corporation or interest or profits in the corporation, the sheriff shall leave the copy with any officer or managing agent of the corporation. If the property consists of membership interests in a limited liability company or interest or profits in a limited liability company, the sheriff shall leave the copy with any officer or managing agent of the limited liability company.
- The sheriff may elect not to seize property during the time period the debtor has to claim exemptions under chapter 28-22 or in the case of property that by reason of bulk or other cause cannot be removed immediately. Service of the notice of levy under this section and section 28-21-12 is as valid and effectual as if the property had been seized and the possession and control of the property retained by the officer. The lien of the writ of execution is effectual from the time the actual levy is made under this section and section 28-21-12.
Source:
C. Civ. P. 1877, § 314; R.C. 1895, § 5507; R.C. 1899, § 5507; R.C. 1905, § 7106; C.L. 1913, § 7720; R.C. 1943, § 28-2108; S.L. 1985, ch. 347, § 3; 1993, ch. 54, §§ 81, 106; 2001, ch. 120, § 1; 2009, ch. 275, § 11.
Derivation:
Harston’s (Cal.) Practice, 688.
Cross-References.
Attachment, see chapter 32-08.1.
Notes to Decisions
- Assertion of Dominion.
- Divorce Proceedings.
- Earnings.
- Equitable Interest in Stock.
- Insufficient Attempt to Levy.
- Jointly-Payable Checks.
- Property in Possession of Court.
- Real Property.
- Redemption Interest.
- Relation to Bankruptcy Proceedings.
- Safety Deposit Box.
Assertion of Dominion.
In order to constitute a levy there must be an assertion of dominion, or some overt act amounting to an assertion of dominion over the property in question. Although a physical seizure is not, under certain circumstances, required under this section, there nevertheless must be some overt act which manifests an intent to assume dominion over the property. First Sec. Bank v. Friese Mfg., 489 N.W.2d 342, 1992 N.D. LEXIS 164 (N.D. 1992).
Divorce Proceedings.
District court abused its discretion in holding a father in contempt because a mother did not allege that any of the provisions of N.D.C.C. ch. 28-21 governing execution and levy were violated, and the circumstances did not amount to an intentional disobedience of a court order under N.D.C.C. § 27-10-01.1(1)(c); a district court order merely denied the father’s request for an equitable offset of the parties’ mutual obligations and did not declare that the father was prohibited from using any other available remedies to enforce the mother’s child support obligation. Jordet v. Jordet, 2012 ND 231, 823 N.W.2d 512, 2012 N.D. LEXIS 241 (N.D. 2012).
Earnings.
This section, insofar as it operates to deprive an employee-debtor of all his earnings, comes within the scope of the federal Consumer Credit Protection Act and to the extent that the section permits a levy on a judgment debtor’s paycheck in excess of the limits under the federal law (15 USCS § 1673(a)), it is preempted thereby. Hodgson v. Christopher, 365 F. Supp. 583, 1973 U.S. Dist. LEXIS 11214 (D.N.D. 1973).
Equitable Interest in Stock.
The equitable interest of a pledgor of stock was subject to levy and sale under execution without actual seizure or manual possession of certificate by the sheriff. Van Cise v. Merchants' Nat'l Bank, 33 N.W. 897, 4 Dakota 485, 1887 Dakota LEXIS 14 (Dakota 1887).
Insufficient Attempt to Levy.
Where sheriff did not post a deputy on judgment debtor’s premises to assume control over the property nor did he indicate to anyone present at judgment debtor’s that judgment debtor’s personal property was constructively or otherwise taken under his control, and where the sheriff merely entered judgment debtor’s premises intending to levy on judgment debtor’s personal property by serving president of judgment debtor with a previously prepared notice of levy, and where not finding president present, the sheriff simply left, intending to serve president later that afternoon, the acts of the sheriff in this case prior to serving the notice of levy were insufficient to effectuate a levy; his later service of the notice of levy could not relate back to the time he first appeared at judgment debtor’s premises, inquired of president’s whereabouts and left without further exercising control of the property. First Sec. Bank v. Friese Mfg., 489 N.W.2d 342, 1992 N.D. LEXIS 164 (N.D. 1992).
Jointly-Payable Checks.
Checks made payable jointly to a debtor and creditor were properly levied upon by the creditor. Bank of Steele v. Lang, 441 N.W.2d 648, 1989 N.D. LEXIS 109 (N.D. 1989).
Property in Possession of Court.
Whether property in the possession of one court is immune, under the doctrine of “custodia legis”, from execution and levy by process issued by another court depends on whether substantial confusion or embarrassment would result from the enforcement of process against the court having primary jurisdiction over the property. Greenberg v. Awes, 256 N.W.2d 374, 1977 N.D. LEXIS 286 (N.D. 1977).
Real Property.
Legal title to real property remains in the judgment debtor after execution, levy, and sale until the period of redemption has expired, so that upon an execution sale of real property, the purchaser acquires all of the interest that the judgment was docketed, free from any subsequent liens, but subject to prior rights and liens and to the right of redemption. CIT Group v. Travelers Ins. Co., 504 N.W.2d 565, 1993 N.D. LEXIS 156 (N.D. 1993).
Redemption Interest.
Statute giving judgment debtor one year in which to redeem land from sale on execution, during which time he retains the right of possession and legal title, gives him substantial interest in property, which is subject to sale on execution. Lynch v. Burt, 132 F. 417, 1904 U.S. App. LEXIS 4336 (8th Cir. N.D. 1904).
Relation to Bankruptcy Proceedings.
Judgment creditor that had executed on a debtor’s property before the bankruptcy proceeding was filed had a properly perfected secured interest in the debtor’s property pursuant to N.D.C.C. §§ 28-21-06 and 28-21-08 and the creditor’s status as a secured creditor did not change by the filing of the bankruptcy petition. The sheriff’s post-bankruptcy return of an unsatisfied writ of execution after the petition was filed did not change the secured nature of the creditor’s claim as of the petition date. In re Midwest Agri Dev.Corp., 2007 Bankr. LEXIS 4487 (Bankr. D.N.D. Oct. 31, 2007), rev'd, 387 B.R. 580, 2008 Bankr. LEXIS 1229 (B.A.P. 8th Cir. 2008).
Safety Deposit Box.
A judgment debtor’s personal property in a safety deposit box, leased by him from a bank, is subject to levy on execution, whether it is considered to be in possession of such debtor as a lessee or in possession of the bank as bailee. O'Connor v. McManus, 71 N.D. 88, 299 N.W. 22, 1941 N.D. LEXIS 139 (N.D. 1941).
Collateral References.
Estate by entirety, levy on, for satisfaction of individual debt of spouse, 75 A.L.R.2d 1172.
Vendee’s interest under executory contract as subject to execution or attachment, 1 A.L.R.2d 727.
Creditors’ rights as affected by grant to one for life, and afterwards, either absolutely or contingently, to grantor’s heirs or next of kin, 16 A.L.R.2d 691, 714.
Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment, 28 A.L.R.2d 1213.
Rights of creditors of life insured as to options or other benefits available to him during his lifetime, 37 A.L.R.2d 268.
Liquor license as subject to execution or attachment, 40 A.L.R.4th 927.
28-21-09. Pledged or mortgaged property may be levied on.
When property is pledged or mortgaged or is subject to a lien, the right and interest of the judgment debtor may be sold without taking possession of or removing the property to the place of sale, but the entire right and interest of the debtor in the property pledged or covered by each lien must be sold as one parcel, and the purchaser acquires all the right and interest of the debtor.
Source:
R.C. 1895, § 5508; R.C. 1899, § 5508; R.C. 1905, § 7107; C.L. 1913, § 7721; R.C. 1943, § 28-2109; 2009, ch. 275, § 12.
28-21-10. Officer’s proceedings on execution.
When an execution is delivered to any officer, the officer shall endorse on the execution the day and hour when the officer received the execution and shall proceed to execute the execution with diligence. If executed, an exact description of the property sold with the date of the levy, sale, or other act done by virtue of the execution, including all costs incurred, must be endorsed upon or appended to the execution. If the writ was not executed, the execution must be returned wholly unsatisfied with all costs incurred endorsed upon or appended to the execution. If the writ was executed in part only, the reason along with all costs in the case must be stated in the return.
Source:
C. Civ. P. 1877, § 315; R.C. 1895, § 5509; R.C. 1899, § 5509; R.C. 1905, § 7108; C.L. 1913, § 7722; R.C. 1943, § 2