What form would I use to file a request to overturn or vacate a judgment?
02/11/2009 - Judgments - State: NC #15228
Full Question:
What form would I use to file a request to overturn or vacate a judgment? Is it a complicated procedure to submit the forms once they are filled out?
Answer:
When a final order has been handed down in a case, it may be possible to file an appeal to have the decision vacated or reversed. The precise form to use and applicable procedure will depend on the nature of the case, such as whether it is a state of federal claim, whether it is a civil or criminal case, etc. Please see the statutes below to determine applicability. I am prohibited from giving legal advice. This service provides information of a general legal nature. Due to the legal complexities in appellate review, I suggest contacting a local attorney who can review all the facts and documents involved.
We can assist you with searching to locate forms or we can draft add forms you may need to our database. However, we cannot advise you to use one particular form over another that address the same matter. We can show you what is available. If you search for appeal for your State there are 41 forms shown. You can take a look at the appeal forms and see if they fit your need. If they do not, let me know and we may be able to add a form for your need. You may order a form or package by phone by calling Toll Free: 1-(877) 389-0141 - 8:30-5:00 Central Time Zone Monday – Friday.
The following are NC statutes applicable to state, rather than federal cases, in Superior and District Courts:
Rule 3. Appeal in civil cases — How and when taken.
(a) Filing the notice of appeal. Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.
(b) Special provisions. Appeals in the following types of cases shall be taken in the time and manner set out in the General Statutes and appellate rules sections noted:
(1) Juvenile matters, G.S. 7B-2602.
(2) Appeals pursuant to G.S. 7B-1001 shall be subject to the provisions of N.C.R. App. P. 3A.
For appeals filed pursuant to these provisions and for extraordinary writs filed in cases to which these provisions apply, the name of the juvenile who is the subject of the action, and of any siblings or other household members under the age of eighteen, shall be referenced by the use of initials only in all filings, documents, exhibits, or arguments submitted to the appellate court with the exception of sealed verbatim transcripts submitted pursuant to Rule 9(c). In addition, the juvenile's address, social security number, and date of birth shall be excluded from all filings, documents, exhibits, or arguments with the exception of sealed verbatim transcripts submitted pursuant to Rule 9(c). Appeals filed pursuant to these provisions shall specifically comply, if applicable, with Rules 9(b), 9(c), 26(g), 28(d), 28(k), 30, 37, 41 and Appendix B.
(c) Time for taking appeal. In civil actions and special proceedings, a party must file and serve a notice of appeal:
(1) within 30 days after entry of judgment if the party has been served with a copy of the judgment within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure; or
(2) within 30 days after service upon the party of a copy of the judgment if service was not made within that three-day period; provided that
(3) if a timely motion is made by any party for relief under Rules 50(b), 52(b) or 59 of the Rules of Civil Procedure, the 30-day period for taking appeal is tolled as to all parties until entry of an order disposing of the motion and then runs as to each party from the date of entry of the order or its untimely service upon the party, as provided in subsections (1) and (2) of this subdivision (c).
In computing the time for filing a notice of appeal, the provision for additional time after service by mail of N.C.R. App. 27(b) and N.C.R. Civ. P. 6(e) shall not apply.
If timely notice of appeal is filed and served by a party, any other party may file and serve a notice of appeal within 10 days after the first notice of appeal was served on such party.
(d) Content of notice of appeal. The notice of appeal required to be filed and served by subdivision (a) of this rule shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken; and shall be signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record.
(e) Service of notice of appeal. Service of copies of the notice of appeal may be made as provided in Rule 26 of these rules.
Rule 4. Appeal in criminal cases — How and when taken.
(a) Manner and time. Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a criminal action may take appeal by
(1) giving oral notice of appeal at trial, or
(2) filing notice of appeal with the clerk of superior court and serving copies thereof upon all adverse parties within 14 days after entry of the judgment or order or within 14 days after a ruling on a motion for appropriate relief made during the 14-day period following entry of the judgment or order. Appeals from district court to superior court are governed by G.S. 15A-1431 and -1432.
(b) Content of notice of appeal. The notice of appeal required to be filed and served by subdivision (a)(2) of this rule shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken; and shall be signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record.
(c) Service of notice of appeal. Service of copies of the notice of appeal may be made as provided in Rule 26 of these rules.
(d) To which appellate court addressed. An appeal of right from a judgment of a superior court by any person who has been convicted of murder in the first degree and sentenced to death shall be filed in the Supreme Court. In all other criminal cases, appeal shall be filed in the Court of Appeals.
Rule 6. Security for costs on appeal.
(a) In regular course. Except in pauper appeals an appellant in a civil action must provide adequate security for the costs of appeal in accordance with the provisions of G.S. 1-285 and 1-286.
(b) In forma pauperis appeals. An appellant in a civil action may be allowed to prosecute an appeal in forma pauperis without providing security for costs in accordance with the provisions of G.S. 1-288.
(c) Filed with record on appeal. When security for costs is required, the appellant shall file with the record on appeal a certified copy of the appeal bond or a cash deposit made in lieu of bond.
(d) Dismissal for failure to file or defect in security. For failure of the appellant to provide security as required by subdivision (a) or to file evidence thereof as required by subdivision (c), or for a substantial defect or irregularity in any security provided, the appeal may on motion of an appellee be dismissed by the appellate court where docketed, unless for good cause shown the court permits the security to be provided or the filing to be made out of time, or the defect or irregularity to be corrected. A motion to dismiss on these grounds shall be made and determined in accordance with Rule 37 of these rules. When the motion to dismiss is made on the grounds of a defect or irregularity, the appellant may as a matter of right correct the defect or irregularity by filing a proper bond or making proper deposit with the clerk of the appellate court within 10 days after service of the motion upon him or before the case is called for argument, whichever first occurs.
(e) No security for costs in criminal appeals. Pursuant to G.S. 15A-1449, no security for costs is required upon appeal of criminal cases to the appellate division.
Rule 12. Filing the record; Docketing the appeal; Copies of the record.
(a) Time for filing record on appeal. Within 15 days after the record on appeal has been settled by any of the procedures provided in Rule 11 or Rule 18, the appellant shall file the record on appeal with the clerk of the court to which appeal is taken.
(b) Docketing the appeal. At the time of filing the record on appeal, the appellant shall pay to the clerk the docket fee fixed pursuant to G.S. 7A-20(b), and the clerk shall thereupon enter the appeal upon the docket of the appellate court. If an appellant is authorized to appeal in forma pauperis as provided in G.S. 1-288 or 7A-450 et seq., the clerk shall docket the appeal upon timely filing of the record on appeal. An appeal is docketed under the title given to the action in the trial division, with the appellant identified as such. The clerk shall forthwith give notice to all parties of the date on which the appeal was docketed in the appellate court.
(c) Copies of record on appeal. The appellant shall file one copy of the record on appeal, one copy of a transcript designated pursuant to Rule 9(c)(2), three copies of each exhibit designated pursuant to Rule 9(d), and three copies of any supplement to the record on appeal submitted pursuant to Rule 11(c) or Rule 18(d)(3). Upon filing, the appellant may be required to pay to the clerk of the appellate court a deposit fixed by the clerk to cover the costs of reproducing copies of the record on appeal. The clerk will reproduce and distribute copies as directed by the court.
Rule 13. Filing and service of briefs.
(a) Time for filing and service of briefs.
(1) Cases other than death penalty cases. Within 30 days after the clerk of the appellate court has mailed the printed record to the parties, the appellant shall file his brief in the office of the clerk of the appellate court, and serve copies thereof upon all other parties separately represented. The mailing of the printed record is not service for purposes of Rule 27(b); therefore the provision of that rule allowing an additional three days after service by mail does not extend the period for the filing of an appellant's brief. Within 30 days after appellant's brief has been served on an appellee, the appellee shall similarly file and serve copies of his brief. If permitted by Rule 28(h), the appellant may serve and file a reply brief as provided in that rule.
(2) Death penalty cases. Within 60 days after the Clerk of the Supreme Court has mailed the printed record to the parties, the defendant-appellant in a criminal appeal which includes a sentence of death shall file his brief in the office of the Clerk and serve copies thereof upon all other parties separately represented. The mailing of the printed record is not service for purposes of Rule 27(b); therefore the provision of that rule allowing an additional three days after service by mail does not extend the period for the filing of a defendant-appellant's brief. Within 60 days after appellant's brief has been served, the State-appellee shall similarly file and serve copies of its brief. If permitted by Rule 28(h), the appellant may serve and file a reply brief as provided in that rule, except that reply briefs filed pursuant to Rule 28(h)(2) or (3) shall be filed and served within 21 days after service of the brief of the State-appellee.
(b) Copies reproduced by clerk. A party need file but a single copy of his brief. At the time of filing the party may be required to pay to the clerk of the appellate court a deposit fixed by the clerk to cover the cost of reproducing copies of the brief. The clerk will reproduce and distribute copies of briefs as directed by the court.
(c) Consequence of failure to file and serve briefs. If an appellant fails to file and serve his brief within the time allowed, the appeal may be dismissed on motion of an appellee or on the court's own initiative. If an appellee fails to file and serve his brief within the time allowed, he may not be heard in oral argument except by permission of the court.
Please see the information at the following links:
http://definitions.uslegal.com/a/appeals/
http://definitions.uslegal.com/a/appeal-bond/
http://definitions.uslegal.com/a/appellate-review/
http://definitions.uslegal.com/b/bankruptcy-appeals/
http://definitions.uslegal.com/v/vacate/
http://definitions.uslegal.com/h/harmless-error/
http://definitions.uslegal.com/r/reversible-error/
http://secure.uslegalforms.com/cgi-bin/forms/query.pl?S-T-NC-B-appeal
02/11/2009 - Category: Judgments - State: NC #15228
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