Rule 42.

1997 Rules of Appellate Procedure

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Rule 51

RULE 42. DISMISSAL

42.1 Voluntary Dismissal in Civil Cases.

(a) The appellate court may dispose of an appeal as follows:

(1) in accordance with an agreement signed by all parties or their attorneys and filed with the clerk; or

(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no party may be prevented from seeking any relief to which it would otherwise be entitled.

(b) A severable portion of the proceeding may be disposed of under (a) if it will not prejudice the remaining parties.

(c) In dismissing a proceeding the appellate court will determine whether to withdraw any opinion it has already issued. An agreement or motion for dismissal cannot be conditioned on withdrawal of the opinion.

42.2 Voluntary Dismissal in Criminal Cases.

(a) At any time before the appellate court's decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk.

(b) After the court of appeals hands down its opinion, an appellant may not withdraw the notice of appeal unless the other parties consent and the court of appeals approves the withdrawal. If consent and approval are obtained, the appellate opinion must be withdrawn and the appeal dismissed. The appellate clerk must send notice of the dismissal to the trial court clerk.

42.3 Involuntary Dismissal in Civil Cases. Under the following circumstances, on any party's motion — or on its own initiative after giving ten days' notice to all parties — the appellate court may dismiss the appeal or affirm the appealed judgment or order. Dismissal or affirmance may occur if the appeal is subject to dismissal:

(a) for want of jurisdiction;

(b) for want of prosecution; or

(c) because the appellant has failed to comply with a requirement of these rules, a court order, or a notice from the clerk requiring a response or other action within a specified time.

42.4 Involuntary Dismissal in Criminal Cases. The appellate court must dismiss an appeal on the State's motion, supported by affidavit, showing that the appellant has escaped from custody pending the appeal and that to the affiant's knowledge, the appellant has not, within ten days after escaping, voluntarily returned to lawful custody within the state.

(a) Timely return to custody; reinstatement . The appeal may not be dismissed — or, if dismissed, must be reinstated — if an affidavit of an officer or other credible person is filed showing that the appellant, within ten days after escaping, voluntarily returned to lawful custody within the state.

(b) Life sentence . The appellate court may overrule the motion to dismiss — or, if the motion was granted, may reinstate the appeal — if:

(1)the appellant received a life sentence; and

(2)the appellant is recaptured or voluntarily surrenders within 30 days after escaping.

Notes and Comments
Comment to 1997 change: Former Rules 59 and 60 are merged. Paragraph 42.1(c), allowing a court of appeals to withdraw its opinion, is new. Provision is made in paragraph 42.3(c) for dismissal of an appeal for failure to comply with a notice from the clerk. Other changes are made.

Last modified: November 08, 2001