Ponca Tribe of Nebraska Tribal Code
TITLE II RULES OF CIVIL PROCEDURE
CHAPTER 2 COMMENCEMENT OF ACTION AND PRELIMINARY MATTERS
Rule 2. Commencement of Action; Service of Process
Rule 3. Time
Rule 4. Pleading, Motions and Orders
Rule 5. General Rules of Pleading
Rule 6. Form of Pleadings
Rule 7. Defenses and Objections
Rule 8. Counterclaim or Crossclaim
Rule 9. Amendment of Pleadings
Rule 10. Parties
Rule 11. Intervention
Rule 12. Substitution of Parties
Rule 13. Discovery
Rule 14. Jury Trials
Rule 15. Assigning Case for Trial
Rule 16. Dismissal of Actions
Rule 17. Consolidation; Separate Trials
Rule 18. Evidence
Rule 19. Subpoenas
Rule 20. Jurors
Rule 21. Special Verdicts and Interrogatories
Rule 22. Instructions to the Jury; Arguments
Rule 23. Motions for Directed Verdict and for Judgment Notwithstanding the Verdict
Rule 24. Finding by the Court
Rule 25. Judgments; Costs
Rule 26. Default
Rule 27. Summary Judgment
Rule 28. Entry of Judgment
Rule 29. New Trials; Amendments
Rule 30. Relief From Judgment or Order
Rule 31. Harmless Error
Rule 32. Stay of Proceedings to Enforce a Judgment
Rule 33. Disability or Disqualification of a Judge
Rule 34. Injunctions
Rule 35. Extraordinary Writs
Rule 36. Execution
Rule 37. Appeal
Rule 38. Citation
A. Commencement of Action. A civil action is commenced by filing a written complaint with the Tribal Court Administrator. The Court shall have jurisdiction from such time as both the complaint is filed and properly served upon the defendant and a return of service is filed with the Tribal Court Administrator.
B. Service of process. Service of process shall consist of delivering to the party served a copy of the complaint along with the summons, which need not be issued by the Judge or Tribal Court Administrator, which advises the defendant that he is required to answer the complaint within thirty (30) days or a default judgment will be entered against him.
1. The return of service shall be endorsed with the name of the person serving and the date, time, and place of service and shall be filed with the Tribal Court Administrator.
2. Service may be made on a party by delivery of the required papers to the party himself or upon some person of suitable age and discretion over fourteen (14) years of age at the party's house or principal place of business, or an officer, managing agent, employee, or partner of a non-individual party.
3. Service by publication may be made upon order of the Court for good cause shown by publishing the contents of the summons in a local newspaper of general circulation at least once per week for four (4) weeks and by leaving an extra copy of the complaint or paper with the Court for the party.
4. Service may be made by any law enforcement officer.
5. Service upon a resident otherwise subject to the jurisdiction of the Ponca Tribal Court may be made anywhere in the United States and shall be made on the party in the same manner as service is made within tribal territory, by any person who is authorized to serve process by the laws of the nation, state, territory or Indian tribe wherein such person is found.
6. If a person personally refuses to accept service, service shall be deemed performed if the person is informed of the purpose of the service and offered copies of the papers served.
C. All papers required to be filed shall be served as under this rule, or except for the complaint, may be served on the counselor or attorney of a party. Service of all papers except the complaint may be made by mail, First Class postage pre-paid and properly addressed.
Ponca Tribe of Nebraska Code Rule 2, PTN Code Rule 2
A. Computation. In computing any period of time set forth herein, the day that the period is to commence from shall not be counted and the last day of the period shall be counted; provided however, that any time period under seven (7) days will not include intermediate Saturdays, Sundays, or legal holidays in the period and any period which would otherwise end on a Saturday, Sunday or legal holiday will be deemed to end on the next day which is not a Saturday, Sunday or legal holiday.
B. Enlargement. The Court, for good cause shown, may enlarge the prescribed period of time within which any required act may be done.
C. Notice of Motions. Written motions and notice of hearing thereon, other than one which may be heard ex parte, shall be served not later than five (5) days prior to the time specified for hearing.
D. Service by Mail. Whenever service is accomplished by mail, three (3) days shall be added to the prescribed period of time, but such additional time shall not cause Saturdays, Sundays or legal holidays to be counted in the time period if they would not otherwise have been counted.
Ponca Tribe of Nebraska Code Rule 3, PTN Code Rule 3
A. Pleadings. There shall be a complaint and an answer; and a responsive pleading shall be allowed whenever, by crossclaim, counterclaim or otherwise, a party is first claimed against unless the Court shall otherwise order. The Court may grant additional leave to plead in the interest of narrowing and defining issues or as justice may require.
B. Motions and Orders.
1. Motions. An application to the Court for an order shall be by motion and shall be in writing, unless made orally during a hearing or trial, and shall set forth the relief or order sought and the grounds therefore stated with particularity. A motion and notice of motion may be set forth together.
2. Orders. An order includes every direction of the Court whether included in a judgment or not, and may not be made without notice to adverse parties nor vacated or modified without notice, except as provided herein.
3. Hearings on Motions and Orders. A motion or hearing on an order shall be automatically continued if the judge before whom it was to be heard is unable to hear it on the day specified and no other judge is available to hear it.
4. No court order shall be issued unless a civil action has been commenced as provided in Rule 2(A).
Ponca Tribe of Nebraska Code Rule 4, PTN Code Rule 4
A. Claims for relief. A pleading which sets forth a claim for affirmative relief shall contain:
1. A short, plain statement of the grounds upon which the Court's jurisdiction depends, unless the Court already has jurisdiction over the matter.
2. A short, plain statement of the claim showing that the pleader is entitled to relief; and
3. A demand for judgment for the relief to which the pleader considers himself entitled. Such claim for relief can be in the alternative or for several types of relief.
B. Defenses and Denials. A party shall state in plain, concise terms the grounds upon which he bases his defense to claims pleaded against him, and shall admit or deny the claims and statements upon which the adverse party relies. If he is without information or knowledge regarding a statement or claim, he shall so state and such shall be deemed to be a denial. Denials shall fairly meet the substance of the claims or statements denied and be made as to specified parts but not all of a claim, statement, or averment. A general denial shall not be made unless the party could in good faith deny each and every claim covered thereby. A claim to which a responsive pleading is required, except for amount of damages, shall be deemed admitted unless denied; if no responsive pleading is allowed, the claims of the adverse party shall be deemed denied.
C. General Content of Claims and Defenses. Claims and defenses shall be simply, concisely, and directly stated, but may be in alternative or hypothetical form, on one or several counts or defenses, need not be consistent with one another, and may be based on legal or equitable grounds or both.
D. Affirmative Defenses. Matters constituting an affirmative defense or avoidance shall be affirmatively set forth. When a party has mistakenly designated a defense as a counterclaim or vice versa, the Court may treat the pleading as if it has been properly designated if justice so requires.
E. Construction of Pleadings. All pleadings shall be construed so as to do substantial justice.
Ponca Tribe of Nebraska Code Rule 5, PTN Code Rule 5
A. Caption. Every pleading shall contain a caption heading, the name of the Court, the title of the action, the Court file number if known, and a designation as to what kind of pleading it is. All pleadings shall contain the names of the parties, except the name of the first party on each side may be used on all pleadings except the complaint.
B. Paragraphs. All averments of claim or defense shall be set forth in separate numbered paragraphs each of which is limited, as nearly as possible, to a single circumstance. Claims or defenses founded upon separate transactions or occurrences should be set forth in separate counts or defenses.
C. Exhibits, Adoption by Reference. Statements in a pleading may be adopted by reference in a different part of the same pleading or in any motion. A copy of a written instrument which is an exhibit to a pleading is a part thereof for all purposes.
D. Paper Used in Pleading. Insofar as is possible, pleadings and other papers filed in any action shall be on regular size paper, double-spaced, except for matters customarily single-spaced, contain at least a 2-inch top margin and a 1-inch left side margin, and contain the court file number on the first page thereof. Substantial compliance with this rule will be sufficient for all parties not represented by a professional attorney.
Ponca Tribe of Nebraska Code Rule 6, PTN Code Rule 6
A. When Presented. A defendant or other party against whom a claim has been made for affirmative relief shall have thirty (30) days from the date of service upon him to answer or respond to the claim.
B. Motions. Motions to dismiss or to make the opposing parties' pleadings more definite may be made prior to answering a claim and an answer will not be due until ten (10) days after the disposition of the motion by the Court.
Ponca Tribe of Nebraska Code Rule 7, PTN Code Rule 7
A. Counterclaim. A party against whom a claim is made may assert in his answer any claims he has against the party claiming against him and both claims shall be resolved at trial.
B. Crossclaim. A party against whom a claim is made may assert any claim he has against a co-party and have such claim resolved at trial.
C. Third Party Claim. A party against whom a claim is made may complain against a third party who is or may be liable for payment or performance of the claim of the opposing party and have such complaint resolved at trial.
Ponca Tribe of Nebraska Code Rule 8, PTN Code Rule 8
A. Amendment Before Trial. A party may amend his pleadings once before the opposing party has replied or if no reply is required, not less than twenty (20) days before the case is scheduled for trial. The opposing party may respond, if appropriate, and the trial date rescheduled if necessary. Other amendments shall be allowed only upon motion and order of the Court.
B. At Trial. When issues or evidence not raised in the pleadings are heard at trial, the judgment may conform to such issues or evidence without the necessity of amending the pleadings.
Ponca Tribe of Nebraska Code Rule 9, PTN Code Rule 9
A. Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest, except a personal representative or other person in a fiduciary position can sue in his own name without joining the party for whose benefit the action is maintained.
B. Guardian Ad Litem. When an infant, or insane, or incompetent person who has not had a general guardian appointed is a party, the Court may appoint a guardian ad litem to represent such person in the suit or action.
C. Joinder of Parties. To the greatest extent possible given the jurisdiction of the Ponca Tribal Court, all persons or parties interested in a particular action may be joined in the action, but failure to join a party over whom the Court has no jurisdiction will not require dismissal of the action unless it would be impossible to reach a just result without such party; otherwise, the failure to join a party may be taken into account to assure that justice is done.
Ponca Tribe of Nebraska Code Rule 10, PTN Code Rule 10
A person may intervene and be treated in all respect as a party to an action in cases in which property in which he has an interest may be affected or a question or law or fact common to a claim of his may be litigated.
Ponca Tribe of Nebraska Code Rule 11, PTN Code Rule 11
If a party dies or becomes incompetent or transfers his interest or separates from some official capacity, a substitute party may be joined or substituted as justice requires.
Ponca Tribe of Nebraska Code Rule 12, PTN Code Rule 12
A. Interrogatories. A party may submit written interrogatories to any other party who must answer them in writing, under oath, within thirty (30) days of receipt of such.
B. Depositions. A party may take the oral deposition of an adverse party or non-party witness under oath upon not less than ten (10) days notice, specifying the time and place where such will occur.
C. Production, Entry, or Inspection. A party may request another party to produce any documents or things in his custody or possession for inspection or copying or request permission to enter and inspect property reasonably related to the case, and the opposing party shall within thirty (30) days reply as to whether or not such will be allowed and if not, why not.
D. Scope of Discovery. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the pending action, whether or not such would be admissible at trial, if such appears reasonably calculated to lead to the discovery of admissible evidence; except that discovery may not be had of the work product of a party's counselor or attorney.
E. Protective Order. A party against whom discovery is sought may move the Court for a protective order to prevent undue annoyance, harassment, embarrassment, oppression, or undue burden or expense, and the Court may order that the discovery cease or proceed only upon specified conditions.
F. Failure to Make Discovery. If a party fails to respond or appear for discovery as provided in this rule, the opposing party may move for an order to compel the defaulting party to perform and the Court may award costs to the non-defaulting party. If a party fails to perform after being ordered to do so by the Court, the Court may, upon motion, order that a certain act, claim, or defense be deemed established or strike part of a claim or defense, or dismiss or render a judgment by default against the non-complying party in an aggravated case.
G. Use of Discovery. Answers to interrogatories and depositions may be used in a motion, hearing or at trial to impeach or contradict the testimony of the person discovered, or by an adverse party for any purposes.
Ponca Tribe of Nebraska Code Rule 13, PTN Code Rule 13
A. When Allowed. Trials of all civil actions shall be to the Court without a jury unless a party to the action files a request for a jury trial and pays a fee of $25.00 not less than thirty (30) days prior to the scheduled date of trial. A judge may, upon good cause shown, waive pre-payment of the required fee.
B. Issues Triable. Unless the requesting party specifies otherwise, all factual issues properly triable by a jury shall be decided by the jury at trial. A party requesting a jury trial may specify only those issues he wants tried to the jury, and any other party may specify, not less than fifteen (15) days before the date scheduled for trial, any other issues he wishes to be so tried. Once any or all issues of a case have been requested for a jury trial, such request may not be withdrawn without the consent of all of the parties.
C. Designation by Judge.
1. A judge may, upon his own motion, order the trial by a jury of any or all of the factual issues of a case regardless of whether or not the parties have requested such.
2. A judge may, upon motion of any party or its own initiative, find that some or all of the issues designated for jury trial are not properly triable to a jury, and order that no jury trial be held on such issues.
3. A judge may hear and decide an issue or issues without a jury if either party to an issue fails to appear at trial, regardless of any request made for a jury trial on such issues.
Ponca Tribe of Nebraska Code Rule 14, PTN Code Rule 14
A. Assignment of Judge and Date. The Chief Judge shall determine which judge shall hear a case, and shall provide by rule for the placing of cases on the Court calendar with or without the request of any party provided all parties are given adequate notice of trial dates.
B. Postponement. Upon motion of a party, the Court may in its discretion, and upon such terms as it deems just, including the payment of any cost occasioned by such postponement, postpone a trial or proceeding upon good cause shown.
Ponca Tribe of Nebraska Code Rule 15, PTN Code Rule 15
A. Voluntary Dismissal. Prior to the responsive pleading of a party against whom a claim has been made or motion to dismiss or for summary judgment on such claim, the party making the claim may file a notice to dismiss and his claim shall be deemed dismissed without prejudice. In all other circumstances, a party may move the Court to dismiss his own claim and the Court shall do so either with or without prejudice as is just and proper given the stage of the proceedings, provided, however, if a crossclaim or counterclaim has been filed against the moving party, the judge shall dismiss the claim only with the consent of the adverse party or only if it appears that the other party can prosecute his claim independently without undue additional hardship.
B. Involuntary Dismissal. A party against whom a claim has been made may move the court to dismiss the claim of the adverse party upon any of the following grounds:
1. Failure of the adverse party to prosecute his claim;
2. Failure of the adverse party to comply substantially with these rules;
3. Failure of the adverse party to comply with an order of the court;
4. At the close of the presentation of the other party's evidence and without prejudicing his own right to present evidence, failure of the opposing party to establish a right to relief based on the facts and law presented; or
5. Whenever dismissal appears proper based upon a failure to prove a claim.
C. Such dismissal shall be deemed an adjudication of the merits of the issue dismissed unless the Court shall, for good cause shown, order otherwise. The Court may postpone ruling on a motion to dismiss for failure to establish a right to any relief until the close of all the evidence.
D. The Court may order a party moving to dismiss his own claim to pay the costs of the adverse party if the proceeding has progressed beyond the pleading stage, and may order payment of costs in other circumstances where such is deemed appropriate.
Ponca Tribe of Nebraska Code Rule 16, PTN Code Rule 16
A. Consolidation. The Court may, upon motion of any party or its own motion, order some or all of the issues of separate actions tried together when there is a common issue of fact or law relating to the action or if such will tend to avoid necessary cost or delay.
B. Separate Trials. The Court may, to avoid prejudice or in furtherance of convenience, order a separate trial of a claim or issue.
Ponca Tribe of Nebraska Code Rule 17, PTN Code Rule 17
A. Form and Admissibility. At all hearings and trials, the testimony of witnesses shall be taken orally under oath, unless otherwise provided in these rules. All evidence admissible under the Rules of Evidence or as specified in this Law and Order Code shall be admissible and the competency of witnesses to testify shall be similarly determined.
B. Examination and Cross Examination.
1. A party may use leading questions against an adverse party or hostile witness or whenever such appears reasonably necessary to elicit testimony from witnesses of tender years or poor ability to communicate.
2. A party may call any person to be a witness and examine any witness so called on any matter relevant to the action. A party may impeach his own witness.
3. Cross examination shall be limited to the general scope of direct examination; provided, however, that full examination of all witnesses to assure complete development of all relevant facts shall be allowed.
C. Physical Evidence. Written documents and other physical evidence shall be received upon being identified authenticated, and shown to be relevant to the action.
D. Official Documents. Official documents or an official law, record or copy thereof may be admitted into evidence upon the testimony of an official having custody or official knowledge thereof or without such testimony if the document or record or copy thereof is accompanied by a certificate identifying such thing and stating that it is a true and correct representation of what it purports to be.
E. Record of Excluded Evidence. In an action tried to a jury, excluded evidence may, upon request, be included in the record for purposes of appeal and excluded oral testimony shall be put into evidence by means of an offer of proof made out of the hearing of the jury. In an action tried only to the Court, the judge may receive such excluded testimony into the record.
F. Supplemental Rules. To the extent the rules of evidence are insufficient, the Court may follow the federal rules of evidence in any action or proceeding under this Code. The rules of evidence may be waived at the discretion of the Court, where the parties are unrepresented by counsel.
Ponca Tribe of Nebraska Code Rule 18, PTN Code Rule 18
A. Issuance. Subpoenas for attendance of witnesses or production of documents or things shall be issued by the Court and served as provided in Rule 2.
B. Failure to Appear. A person who has been properly served with a subpoena and fails to appear or produce may be deemed in contempt of court.
C. Subpoena Unnecessary. A person present in court, or before a judicial officer, may be required to testify in the same manner as if he were in attendance upon a subpoena.
Ponca Tribe of Nebraska Code Rule 19, PTN Code Rule 19
A. Number of Jurors; Alternate. There shall be six (6) jurors chosen to hear a case plus the Court may allow one (1) additional juror to be chosen as an alternate juror. In the event that an alternate juror is chosen and hears the case, he shall be dismissed prior to the jury's deliberation if not needed, and treated like a regular juror if needed.
B. Examination of Jurors. The Court shall permit the parties or their counsel (but not both) to conduct the examination of prospective jurors and may itself examine the jurors.
1. A challenge is an objection made to a potential trial juror. Either party may challenge jurors but where there are several parties on either side, they must join in a challenge before it can be made.
2. Challenges to jurors are either preemptory or for cause. Each party or side shall be entitled to three (3) preemptory challenges.
3. Challenges for cause shall be made against potential jurors on the grounds that they are not entitled or qualified to be jurors, they are familiar with the case, have formed opinions regarding the case, or if for any other reason it appears likely or reasonably possible that they will not be able to render a fair, impartial verdict. The Judge may take evidence relative to a challenge for cause and shall in any event render a decision thereon.
D. Selection of Jury. The Tribal Court Administrator shall draw lots to determine potential jurors and shall replace jurors for whom challenge for cause is sustained until a full panel is passed for cause. Upon exercise of preemptory challenges, the Tribal Court Administrator shall administer the oath to the jurors selected for the trial, the form of which shall be prescribed by rule of the Court.
E. Discharge of Juror. If, after the proceedings begin and before a verdict is reached, a juror becomes unable or disqualified to perform his duty, the alternate juror shall take his place; if there is no alternate juror the parties may agree to complete the action with the remaining jurors. If no agreement can be reached, the judge shall discharge the jury and the case shall be tried with a new jury.
F. View of Jury. The Court may, for good cause shown, allow the jury to view the property or place of occurrence of disputed or otherwise relevant event.
G. Separation of the Jury. Any time prior to their verdict when the jurors are allowed to leave the courtroom, the Judge shall admonish them not to converse with or listen to any other person on the subject of the trial and further admonish them not to form or express an opinion on the case until the case is submitted to the jury for their decision.
H. Deliberation. Once the case is submitted to them, the jury shall retire to deliberate in private quarters under the charge of an officer of the Court called the bailiff, who will refrain from communicating with them except to inquire whether they have reached a verdict, and he shall prevent others from improperly communicating with the jury.
I. Things Taken by Jury. The jury may take with them when deliberating any of the following:
1. The Court's instructions;
2. Papers or things received in evidence as exhibits;
3. Notes taken by the jurors themselves, but not notes taken by non-jurors.
4. Additional Instructions. If, after the jury retires, there is some question on an instruction or other point of law or disagreement regarding the testimony, the jury may request additional instructions from the Court, such to be given on the record after notice to the parties or their counsel.
J. No Verdict. If the jury is discharged before rendering their verdict or for any reason prevented from giving a verdict, the action shall be retired.
K. Declaration of the Verdict. When all or at least five (5) of the six (6) jury members agree on a verdict, they shall so inform the bailiff who shall notify the Court. The jury shall be conducted into the courtroom and the Tribal Court Administrator shall call the jury roll; the verdict shall be given in writing to the Tribal Court Administrator and then read by the Tribal Court Administrator; inquiry shall be made by the Court to the jury foreman as to whether such is their verdict. Either party may have the jury polled individually to determine if such is, in fact, their verdict. If sufficient jurors agree with the verdict, the jury shall be sent out again to reconsider; otherwise, the verdict is read or recorded incorrectly by the Tribal Court Administrator or foreman, the jury shall retire to correct the verdict.
Ponca Tribe of Nebraska Code Rule 20, PTN Code Rule 20
The Court may in its discretion require the jury to return their verdict in the form of specific findings on specified issues and may require the jury to return a general verdict accompanied by answers to questions related to the issues under consideration.
Ponca Tribe of Nebraska Code Rule 21, PTN Code Rule 21
A. Instructions. At the close of the evidence or at such earlier time as the Court may direct, any party may file written requested instructions for the Court to give the jury. The Court shall inform the parties or their counsel of the instructions it intends to give and hear argument thereon out of the hearing of the jury.
B. Arguments. Final arguments for the parties shall be made after the jury has been instructed. The Court shall not comment on the evidence of the case and, if it should restate any of the evidence, it shall inform the jury that they are the sole judges of the facts.
Ponca Tribe of Nebraska Code Rule 22, PTN Code Rule 22
A. Motion for a Directed Verdict. A party who moves for a directed verdict at the close of the evidence offered by the opposing side may offer evidence as if no motion had been made in the event that the motion is denied. A motion for directed verdict shall state the grounds therefor and may be granted by the Court without the assent of the jury.
B. Motion for Judgment Notwithstanding the Verdict. A party who has made a motion for a directed verdict at the close of all the evidence, which motion has been denied or not granted may, within ten (10) days after entry of judgment, move to have the verdict and any judgment entered hereon set aside and entered according to his motion for directed verdict; of if there has been a verdict, the party may so move within ten (10) days after the jury has been discharged. A motion for a new trial may be made in the alternative. The Court shall enter judgment or make any orders consistent with its decision on the motions.
Ponca Tribe of Nebraska Code Rule 23, PTN Code Rule 23
In cases tried without a jury, and except in cases where a party defaults, fails to appear or otherwise waives such process, findings of fact and conclusions of law shall be made by the Court in support of all final judgments. Upon its own motion or the motion of any party within ten (10) days of the entry of judgment, findings may be amended or added to, and the judgment may be amended accordingly.
Ponca Tribe of Nebraska Code Rule 24, PTN Code Rule 24
A. Definition. A judgment includes any order finally and conclusively determining the rights of the parties.
B. Judgment on Multiple Claims. When more than one claim for relief is presented in an action, however designated, a final judgment may be entered on less than all of such claims only upon the Court's specific finding that such is justified. Absent such a finding, an order or decision will not terminate the action as to any of the claims until all claims are finally decided, nor will the appeal period commence to run.
C. Demand for Judgment.
1. Generally. Except in the case of a default judgment, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if such relief is not demanded in the pleadings. It may be given for or against one or more of several claims; and it may, if justice so requires, determine the ultimate rights of the parties on each side as between or among themselves.
2. Judgment by Default. A judgment by default shall not be different in kind or form, or exceed in amount that specifically prayed for in the demand for judgment.
D. Costs. Unless the Court shall otherwise direct, the Court shall allow necessary costs and disbursements to the prevailing party or parties as a matter of course. Such prevailing party shall file with the Court a verified memorandum of his costs and necessary disbursements within five (5) days of the entry of judgment and serve a copy of such on the opposing party. If such are not objected to within ten (10) days, they shall be deemed to be part of, and included in, the judgment rendered. The appellate court may award costs in a like manner.
E. Attorney's Fees. The Court shall not award attorney's fees in a case unless such have been specifically provided for by a contract or agreement of the parties which is under dispute, or unless it reasonably appears that the case has been prosecuted for purposes of harassment only, or that there was no reasonable expectation of success on the part of the affirmatively claiming party
Ponca Tribe of Nebraska Code Rule 25, PTN Code Rule 25
A. Entry Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, his default may be proved by affidavit and judgment upon demand by default granted to the opposing party.
B. Judgment by Default. Judgment by default may be entered by the Court if a party's claim against the opposing party is for a sum of money which is or can by computation be made certain, and if the opposing party has been personally served. Judgment by default for other relief can be entered only upon receipt of whatever evidence the Court deems necessary to establish the claim. Notice of entry of a default of judgment shall be served upon the party against whom it is taken.
C. Setting Aside Default. The Court may, for good cause shown, set aside either an entry of default or a default judgment.
Ponca Tribe of Nebraska Code Rule 26, PTN Code Rule 26
Any time after thirty (30) days after commencement of an action, any party may move the Court for summary judgment as to any or all of the issues presented in the case and such shall be granted by the Court if it appears that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Such motions, which shall be served not less than ten (10) days prior to the hearing on said motion, may be supported by affidavits, discovery, or memoranda, all of which must be made available to opposing parties at least two (2) days prior to the hearing.
Ponca Tribe of Nebraska Code Rule 27, PTN Code Rule 27
A. Judgment. Judgment upon verdict of a jury shall be signed by the Tribal Court Administrator and filed. All other judgments shall be signed by the judge and filed with the Tribal Court Administrator.
B. Effectiveness; Recordation. A judgment is complete and shall be deemed entered for all purposes when it is signed and filed as provided herein. The Tribal Court Administrator shall immediately make a notation of the judgment in the judgment docket.
C. Death of a Party. If a party dies after a verdict or decision upon any issue of fact and before judgment, judgment may nevertheless be entered thereon.
D. Satisfaction of Judgment. A judgment may be satisfied in whole or in part, as to any or all of the judgment debtors by the owner thereof or his attorney of record executing under oath and filing an acknowledgement of satisfaction specifying the amount paid and whether such is full or partial satisfaction. A judge may order the entry of satisfaction upon proof of payment and failure of the judgment creditor to file a satisfaction. The Tribal Court Administrator shall file all satisfactions of judgment and note the amount thereof in the judgment docket.
E. Effect of Satisfaction; Limitation. A judgment satisfied in whole with such fact being entered in the judgment docket, shall cease to operate as such. A partially satisfied judgment or unsatisfied judgment shall continue in effect for eight years or until satisfied. An action to renew the judgment remaining unsatisfied may be maintained anytime prior to the expiration of eight (8) years and will extend the period of limitations an additional eight (8) years and may be thereafter extended once more by the same procedure.
Ponca Tribe of Nebraska Code Rule 28, PTN Code Rule 28
A. Grounds, Time. Any party may petition for a new trial on any or all of the issues presented by serving a motion not later than ten (10) days after the entry of judgment, for any of the following reasons:
1. Error or irregularity which prevented any party from receiving a fair trial;
2. Misconduct of the jury or jury members;
3. Accident or surprise, or newly discovered evidence which with due diligence could not have been guarded against or produced at trial;
4. Damages so excessive or inadequate that they appear to have been given under the influence of passion or prejudice;
5. Insufficiency of the evidence to justify the verdict or other decision, or that it is contrary to the law; or
6. Error in law.
B. Harmless Error. A new trial shall not be granted on the basis of error or irregularity which was harmless in that it did not result in substantial injustice.
C. Support for Motion. Parties may include memoranda or affidavits in support of their motions to which reply memoranda and affidavits shall be allowed if desired.
D. Court Initiative. The Court may, on its own initiative, not later than ten (10) days after entry of judgment, order a new trial on any grounds ascertainable by a party to the action, and shall specify the reasons for so ordering.
E. Motion to Alter or Amend Judgment. A motion to alter or amend a judgment shall be served not later than ten (10) days after entry of judgment.
Ponca Tribe of Nebraska Code Rule 29, PTN Code Rule 29
A. Clerical Mistake. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the Court at any time of its own initiative or on the motion of any party and after such notice as the Court may direct; mistakes may be corrected before an appeal is docketed in the Appellate Court, and thereafter while the appeal is pending may be corrected with leave of the Appellate Court.
B. Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the Court may, in the furtherance of justice, relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
1. Mistake, inadvertence, surprise, or excusable neglect;
2. Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 29(a);
3. Fraud, misrepresentation or other misconduct of an adverse party;
4. When, for any cause, the summons in an action has not been personally served upon the defendant and the defendant has failed to appear in said action;
5. The judgment is void;
6. The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
7. Any other reason justifying relief from the operation of the judgment.
The motion shall be made within a reasonable time and for reasons (1), (2), (3), or (4), not more than three (3) months after the judgment, order, or proceeding was entered or taken. A motion under subdivision (B) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of the Court to entertain an independent action to relieve a party from a judgment, order or proceeding or to set aside a judgment for fraud upon the Court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.
Ponca Tribe of Nebraska Code Rule 30, PTN Code Rule 30
No error in either the admission or the exclusion of evidence, and no error or defect in any ruling or order, or in anything done or omitted by the Court or by any of the parties, is grounds for granting a new trial or otherwise disturbing a judgment or order, unless refusal to take such action appears to the Court inconsistent with substantial justice. The Court at every stage of the proceedings shall disregard any error or defect which does not affect the substantial rights of the parties.
Ponca Tribe of Nebraska Code Rule 31, PTN Code Rule 31
A. Stay-Upon Entry of Judgment. Proceedings to enforce any judgment may be instituted no sooner than thirty (30) days after service except as otherwise provided in this Code.
B. Injunction Pending Appeal. When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the Court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such conditions as it considers proper for the security of the rights of the adverse party.
C. Stay Upon Appeal. When an appeal is taken, the appellant may, by giving a bond in an amount set by the Court, obtain a stay, unless such a stay is otherwise prohibited by law or these rules. The bond may be given within ten (10) days after the time of filing the notice of appeal. The stay is effective when the bond is approved and received by the Court.
D. Stay in Favor of the Tribe, Officer or Agency Thereof. When an appeal is taken by the Tribe, or an officer or agency of the Tribe, and the operation or enforcement of the judgment is stayed, no bond, obligation or other security shall be required from the appellant.
E. Power of Appellate Court Not Limited. The provisions of this rule do not limit any power of an appellate court or of a judge or justice thereof to stay proceedings in the pendency of an appeal or to suspend, modify, restore, or grant an injunction during the pendency of an appeal or to make any order appropriate to preserve the status quo or the effectiveness of the judgment subsequently to be entered.
F. Stay of Judgment Upon Multiple claims. When a court has ordered a final judgment on some but not all of the claims presented in the action under the conditions stated in Rule 25, the Court may stay enforcement of that judgment until the entering of a subsequent judgment or judgments and may prescribe such conditions as are necessary to secure the benefit thereof to the party in whose favor the judgment is entered.
G. Waiver of Undertaking. In all cases the parties may, by written stipulation, waive the requirements of this rule with respect to the filing of a bond or undertaking is required by these rules, a deposit in court in the amount of such undertaking, or such lessor amounts as the Court may order, is equivalent to the filing of the undertaking.
H. Other Relief. No stay, injunction, waiver of undertaking or security for costs or any other relief from a judgment or order may be granted by the Court without actual notice and opportunity to be heard on the part of the prevailing party to the action.
Ponca Tribe of Nebraska Code Rule 32, PTN Code Rule 32
A. Disability. If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the Court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the Court may perform those duties, but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.
B. Disqualification. Whenever a party to any action or proceeding, civil or criminal, or his attorney shall make and file an affidavit that the judge before whom such an action or proceeding is to be tried or heard has a bias or prejudice, either against such party or his attorney or in favor of any opposing party to the suit, such judge shall proceed no further therein, except to call in another judge to hear and determine the matter.
Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists and shall be filed as soon as practicable after the case has been assigned or such bias or prejudice is known. If the judge against whom the affidavit is directed questions the sufficiency of the affidavit, he shall enter an order directing that a copy thereof be forthwith certified to another judge (naming him/her), which judge shall then pass upon the legal sufficiency of the affidavit. If the judge against whom the affidavit is directed does not question the legal sufficiency of the affidavit, or if the judge to whom the affidavit is certified finds that it is legally sufficient, another judge must be called in to try the case or determine the matter in question. No party shall be entitled in any case to file more than one affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.
C. “Sufficiency” for the purpose of this rule means whether the affidavit sets forth facts which, if true, would warrant disqualification of a judge. There shall be no hearing or other inquiry as to whether the facts as stated in the affidavit are indeed true, so as to preserve the dignity of the Court and avoid the hint or appearance of impropriety.
Ponca Tribe of Nebraska Code Rule 33, PTN Code Rule 33
A. Preliminary Injunctions; Notice. No preliminary injunction shall be issued without notice to the adverse party.
B. Temporary Restraining Order; Notice; Rehearing; Duration. No temporary restraining order shall be granted without notice to the adverse party unless it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before notice can be served and a hearing had thereon. Every temporary restraining order granted without notice shall be filed forthwith in the Tribal Court Administrator's office and entered of record; shall define the injury and state why it is irreparable and why the order has been granted without notice; and shall expire by its terms within such time after entry, not to exceed fifteen (15) days, as the Court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period or unless the party against whom the order is directed consents that it may be extended for a longer period. The reasons for the extension shall be entered of record. In case a temporary restraining order is granted without notice, a motion for a preliminary injunction or show cause hearing must be set down for hearing at the earliest possible time, taking precedence over all other matters except older matters of the same character; and when the motion comes on for hearing the party who obtained the temporary restraining order shall proceed with the application for a preliminary injunction and, if he does not do so, the Court shall dissolve the temporary restraining order. On two (2) days notice to the party who obtained the temporary restraining order without notice or on such shorter notice to that party as the Court may prescribe, the adverse party may appear and move for its dissolution or modification, and in that event the Court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
C. Security. Except as otherwise provided by law, no restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the Court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. No such security shall be required of the United States, the Ponca Tribe of Nebraska, or of an officer or agency of either; nor shall it be required of a married person in a suit against the other party to the marriage contract.
A surety upon a bond or undertaking under this rule submits himself to the jurisdiction of the Court and irrevocably appoints the Tribal Court Administrator as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be enforced on motion and such notice of the motion as the court prescribes may be served on the Tribal Court Administrator who shall forthwith mail copies to the persons giving the security if their addresses are known.
D. Form and Scope of Injunction or Restraining Order; Service. Every order granting an injunction and every restraining order shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
E. Grounds for Injunction. An injunction may be granted:
1. When it appears by the pleadings on file that a party is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act complained of, either for a limited period or perpetually;
2. When it appears from the pleadings or by affidavit that the commission or continuance of some act during the litigation would produce great or irreparable injury to the party seeking injunctive relief;
3. When it appears during the litigation that either party is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party respecting the subject matter of the action, and tending to render the judgment ineffectual;
4. In all other cases where an injunction would be proper in equity.
Ponca Tribe of Nebraska Code Rule 34, PTN Code Rule 34
A. Grounds for Relief. Where no other plain, speedy and adequate remedy exists, relief may be obtained by obtaining an extraordinary writ which may be granted for one of the following reasons:
1. Where any person usurps, intrudes into, or unlawfully holds or exercises a public office or does or permits to be done any act which by law works a forfeiture of his office; or
2. Where an inferior tribunal, board or officer exercising judicial functions has exceeded its jurisdiction or abused its discretion; or
3. Where the relief sought is to compel any inferior tribunal, board or person to perform an act which the law specially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully excluded by such inferior tribunal, board or person; or
4. Where the relief sought is to arrest the proceedings of any tribunal, board or person, whether exercising functions judicial or ministerial, when such proceedings are without or in excess of the jurisdiction of such tribunal, board or person.
Ponca Tribe of Nebraska Code Rule 35, PTN Code Rule 35
A. Time. If within thirty (30) days after entry of a judgment awarding money damages and/or costs against a party, or within thirty (30) days after final judgment, it is made to appear to the Court that the judgment debtor has been served notice of entry of judgment and not paid the judgment amount in full or commenced making installment payments in a manner agreed to by the parties, or is not current in such payments, the Court shall, upon notice to the judgment creditor, heard ex parte, order Law Enforcement to execute on the personal property of the judgment debtor as provided herein.
B. Procedure. The Court shall order the judgment debtor to appear before it and answer under oath regarding all his personal property. The Court shall then determine that property of the judgment debtor is available for execution and order Law Enforcement to seize as much of such property as reasonably appears necessary to pay the judgment amount. Failure of the judgment debtor to appear may be deemed a contempt of court. Sale of the seized property shall be at a public auction conducted by Law Enforcement after giving at least ten (10) days public notice posted in at least three (3) conspicuous public places. Property shall be sold to the highest bidder who shall make payment for property in cash at the time of the sale. The person conducting the auction may postpone such in his discretion if there is inadequate response to the auction or the bidding, and may reschedule such upon giving the required notice. The person conducting the sale shall give a certificate of sale to the purchaser and shall make a return to the Court reciting the details of the sale.
C. Exemption from Execution. The Court shall only order seizure and sale of such property of the judgment debtor to satisfy a money judgment the loss of which will not impose an immediate substantial hardship on the immediate family of the judgment debtor. Only property of the judgment debtor himself may be subject to execution and not property of his family, except property conveyed to the debtor's family in contemplation of the judgment being entered against him or gifts.
D. Redemption From Sale. At any time within six (6) months after sale under this Rule, the judgment debtor may redeem his property from the purchaser thereof by paying the amount such purchaser paid for the property, plus eight percent (8%) interest, plus any expenses actually incurred by the purchaser, such as taxes and insurance, to maintain property.
Ponca Tribe of Nebraska Code Rule 36, PTN Code Rule 36
A. Appellate Court. All appeals from the Ponca Tribal Court shall be heard by the Ponca Tribal Appellate court or the appropriate appellate court of which the Tribe is a member. If the Tribe is a member of a court of appeals, the rules of that appellate court shall apply.
B. Right to Appeal. Any party who is aggrieved any final order, commitment or judgment of the Trial Court may appeal in the manner prescribed in this Rule.
C. Time, Notice of Appeal. Within thirty (30) days from the entry of the order of judgment appealed from, the party making the appeal must file with the trial court a written notice of appeal specifying the parties to the appeal, the order or judgment appealed from and a short statement of the reasons or grounds for the appeal. The Tribal Court Administrator shall file the notice, and mail copies to be provided by the appealing party, to all other parties to the appeal at their last known address.
D. Parties. The party taking the appeal shall be referred to as the appellant; all other parties shall be referred to as respondents. The name of the case shall be the same as that used in the Trial Court.
E. Bond on Appeal. At the time of the Notice of Appeal, the appellant shall file a bond in an amount set by the trial court upon notice to opposing parties.
F. Stay Pending Appeal. In any case which an appeal is perfected as required by this Rule, the appellant may petition the Tribal Court upon notice to all respondents for an order staying the order, commitment or judgment rendered, conditioned upon execution of a bond to guarantee performance of judgment, order or commitment. A stay shall only be granted in those cases in which manifest injustice would result if no stay were issued.
G. Tribal Court Administrator. The Tribal Court Administrator shall also serve as the Tribal Court Administrator for appellate proceedings. Within fifteen (15) days after a Notice of Appeal is filed, the Tribal Court Administrator shall prepare, certify and file with the appropriate Appellate Court all papers comprising the record of the case appealed. A separate docket shall be maintained for the Appellate Court in which shall be recorded each stage of the proceedings on each case appealed.
H. Subpoenas. The presiding judge of the Appellate Court shall, when hearing a case, have authority by subpoena to compel a witness to attend and testify or compel the production of documents where such is deemed necessary to the rendition of the Court's opinion. There shall not, however, be a new trial in the Appellate Court and, except in cases where the findings of fact of the Tribal Court are clearly erroneous, there will be no review of the factual findings of the Tribal Court.
I. Briefs and Memoranda. Within thirty (30) days of the filing of the Notice of Appeal or within such longer time as the Appellate Court shall allow, the appellant shall file a written brief, memorandum or statement in support of his appeal. An original and three (3) copies shall be filed with the Tribal Court Administrator and one (1) additional copy shall be served upon or mailed to each other party or his counselor or attorney. The respondent shall have thirty (30) days after receipt of the appellant's brief, memorandum or statement within which to file a reply brief, memorandum or statement and shall file and serve such in the same manner as the appellant's brief, memorandum or statement. No response shall be allowed either party without leave of the Appellate Court.
J. Argument. The Appellate Court shall decide all cases upon the briefs, memoranda and statements filed plus the record of the Tribal Court without oral argument unless either party requests oral argument and shows to the Court that such will aid the Court's decision, or unless the Court decides on its own motion to hear oral argument.
K. Decision. The Appellate Court shall issue a written decision and all judgments on appeal shall be final.
Ponca Tribe of Nebraska Code Rule 37, PTN Code Rule 37
These Rules shall be known as the Ponca Tribe of Nebraska Rules of Civil Procedure and may be abbreviated “P.T.N.R.C.P.”
Ponca Tribe of Nebraska Code Rule 38, PTN Code Rule 38