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Rule 385. Orders Pending Interlocutory Appeal (Misnumbered 1984)


(a) Effect of Appeal. No order denying interlocutory relief shall be suspended or superseded by an appeal therefrom. The pendency of an appeal from an order authorizing a cause to proceed as a class action suspends such order and also suspends trial on the merits in such cases. Otherwise, the pendency of an appeal from an order granting interlocutory relief does not suspend the order appealed from unless susperse­deas is granted in accordance with subdivision (b).

(b) Supersedeas. Except as provided in subdivision (a), the trial court may permit an interlocutory order to be suspended pending an appeal therefrom by filing a supersedeas bond or making a deposit pursuant to Rule 364. Denial of such suspension may be reviewed for abuse of discretion on motion in the appellate court.

(c) Temporary Orders of Appellate Court. On per­fection of an appeal from an interlocutory order, the appellate court may issue such temporary orders as it finds necessary to preserve the rights of the parties until disposition of the appeal and may require such security as it deems appropriate, but it shall not suspend the trial court's order if the appellant's rights would be adequately protected by supersedeas.

(d) Further Proceedings in Trial Court. Pending an appeal from an interlocutory order, the trial court retains jurisdiction of the cause and may issue further orders, including dissolution of the order appealed from, but the court shall make no order granting substantially the same relief as that granted by the order appealed from, or any order contrary to the temporary orders of the appellate court, or any order that would interfere with or impair the effectiveness of any relief sought or granted on appeal. The trial court may proceed with a trial on the merits, except as provided in subdivision (a).

(e) Enforcement of Temporary Orders. Pending an appeal from an interlocutory order, the order may be enforced only by the appellate court in which the appeal is pending, except that the appellate court may refer any enforcement proceeding to the trial court with instructions to hear evidence and grant such relief as may be appropriate. The appellate court may also instruct the trial court to make findings and report them with his recommendations to the appellate court.

(f) Review on Further Orders. When an appeal is pending from an interlocutory order, any further appealable interlocutory order of the trial court concerning the same subject matter and any interlocutory order that would interfere with or impair the effectiveness of the relief sought or granted on appeal may be brought before the appellate court for review on motion, either on the original record or with a supplement thereto.

(g) Mandate. The order of the appellate court on appeal from an interlocutory order takes effect when the mandate is issued. The court may issue the mandate immediately on announcing its decision if the circumstances require, or it may delay the mandate until final disposition of the appeal. All further proceedings in the trial court shall conform to the mandate. If the appellate court modifies its decision after issuing a mandate, a new mandate shall be issued accordingly.

(h) Rehearing. The appellate court may either deny the right to file a motion for rehearing or shorten the time for filing, and in that event a motion for rehearing shall not be a prerequisite to any review available in the Supreme Court.

This is a new rule.

Dec. 5, 1983, eff. April 1, 1984.

Repealed by order of April 10, 1986, eff. Sept. 1, 1986.

This rule clarifies a number of questions of practice pending interlocutory appeals, particularly appeals from orders granting temporary injunctions and orders appointing receivers. Both the trial court having general jurisdiction of parties and subject matter and the appellate court having jurisdiction of the interlocutory order by reason of perfection of the appeal, have areas within which each court may properly act to protect the rights of the parties pending final disposition of the suit.

Subdivision (a) incorporates provisions of present Rule 385 with respect to orders concern­ing temporary injunctions and further provides for suspension of the order and of the trial on the merits by an appeal from an order author­izing a cause to preceed as a class action.

Subdivision (b) gives the appellate court authority on motion to review the trial court's denial of supersedeas, which would otherwise be reviewable, if at all, only by mandamus pro­ceedings under article 1823.

Subdivision (c) authorizes the appellate court to issue temporary orders to preserve the rights of the parties pending the appeal, but not to dispense with the requirement of a supersedeas bond.

Subdivision (d) resolves a problem concerning the trial court's power to interfere with orders of the appellate court. Subdivision (d) also pro­vides criteria as to what additional interlocutory relief the trial court may grant.

Subdivision (e) resolves the problem concerning enforcement of the trial court's order pending appeal. Subdivisions (c) and (e) authorize the appellate court to decide whether to issue its own temporary orders or refer the matter to the trial court with such authority as the appellate court finds appropriate.

Subdivision (g) resolves the problem of whether the appellate court's order of an inter­locutory appeal may be made effective immedi­ately.

Subdivision (h) permits the appellate court to reduce any delay that would be occasioned by an application for writ of error in the Supreme Court.