What form would I use to file a request to overturn or vacate a judgment?
Full Question:
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.
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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.