dissenting.
[¶ 45] Because there was no conflict between N.D.R.Ct. 3.2 and the effective version of N.D.R.Civ.P. 59, and because a motion is made to the court, not to the opposing party, the motion for a new trial was not timely made. Therefore, I would dismiss, and I dissent from Justice Maring’s opinion. For the parties in this ease, the result may be a distinction without a difference, but for the law, the result would have great consequence. For example, under the majority theory, during a trial a party could move for a mistrial by serving the opposing party, but without telling the court anything; yet, the majority would say the motion for a mistrial was “timely made.”
I
[¶ 46] That a motion is made to the court is fundamental. “Rule 7(b)(1) defines a motion as an application to the court for an order.” Charles Wright & Arthur Miller, Federal Practice and Procedure § 1190 (1990). The footnote to the sentence states, “Motions are application to the court,” citing lengthy authority, including Federal Rule of Civil Procedure 7(b)(1). Federal Rule 7(b)(1) requires that “[a]n application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” Fed.R.Civ.P. 7(b)(1). North Dakota’s Rule 7(b)(1) exactly mirrors the federal.
[¶ 47] Moore’s Federal Practice states, in the section on motions, that a motion is an application to the court for an order. 2 Jeremy C. Moore, Moore’s Federal Practice, § 7.03(1) (3rd ed.1998). This section also references Federal Rule 7(b)(1), and quotes it, stating “motions [under the Rule] must contain ‘an application to a court for an order.’ ”
[¶ 48] “A motion is commonly defined as any request to a court for an order.” David F. Herr, Roger S. Haydock, and Jeffrey W. Stempel, Motion Practice, ch. 1:1 (3d ed.1998). “The term does not apply to requests that do not call for entry of any order by the court. In other words, whenever an attorney asks a court for something and the court must respond with a ruling or an order, a motion has been made.” Id.
[¶ 49] Black’s Law Dictionary 1013 (6th ed.1990) defines motion:
An application made to a court or judge for purpose of obtaining a rale or order directing some act to be done in favor of the applicant.... It is usually made within the framework of an existing action or proceeding and is ordinarily made on notice, but some motions may be made without notice. One without notice is called an ex parte motion. Written or oral application to court for ruling or order, made before (e.g. motion to dismiss) during (e.g. motion for directed verdict), or after (e.g. motion for neto trial) trial.
(Emphasis added; footnotes omitted). American Jurisprudence 2d further enunciates the “black-letter law”:
A motion is an application made to a court or judge for the purpose of obtaining a rule or order directing some act to be done in favor of the applicant. It is not regarded as a pleading in the ordinary or technical sense, even where it is reduced to writing.
56 Am.Jur.2d Motions § 1 (1971). (Emphasis added; footnotes omitted).
The time for making motions is frequently prescribed by statute or rule of court requiring, generally, that a motion be brought within a certain period of time after an event. For example, a motion challenging a pleading generally must be filed within a certain number of days after the pleading is filed. On the other hand, a motion may be denied as prematurely sought.
The place of making motions is frequently prescribed by statute or rale of court. Statutes generally require a motion to be *82made in the county or in the court where the action is pending but permit motions and orders which may be made at chambers or outside of court to be made in any part of the state.
Id. at § 8. (Footnotes omitted).
As a general rule, motions are made orally. Thus, in some jurisdictions, a motion is not made by merely filing an application in writing with the clerk of the appropriate court; it is necessary to move the court or judge viva voce to grant the order. In other jurisdictions, however, a motion is deemed to be made when the notice of motion is served and the motion ■papers and proof of service are filed. Statutes in some states require certain motions to be made in writing, and in some jurisdictions, by rule, a motion not made during a trial or hearing must be in writing unless the court permits it to be made orally.
Id. at § 9. (Emphasis added; footnotes omitted).
Although in some cases notice of a motion is not required, generally, a party interested in resisting the relief sought by a motion has a right to notice sufficient to give him an opportunity to be heard. The requirement is of statutory origin in some jurisdictions and of judicial origin in others.
In some jurisdictions, to fulfil the requirement, the notice of the hearing must bring the respondent or his attorney into court at the time when the motion is made. Some jurisdictions require that notice of a motion be served on the respondent at least a specified number of days before the hearing on the motion. There is a distinction between the requirement of formal service of process to secure jurisdiction over the person of a party in the commencement of an action and the right to reasonable notice of motions, pleadings, and steps taken in the proceeding after a case has begun and after jurisdiction over the parties has been acquired in the first instance. In some jurisdictions, by rule, reasonable notice only must be given to the attorneys and the parties where motion papers are filed after the action is commenced and appearances are entered by the attorneys for the parties.
Where notice is required, the general rule is that an order made on a motion without notice is void. Where, for example, a party seeks to vacate an order entered without notice to him, he is entitled to vacate it to the extent that it affects his interest because he has a right to be heard before the judge or court makes the order, not merely the right to show, if he can, that an order following an ex parte hearing unjustly affects him. There is authority, however, to the effect that where, from the nature of the application, the adverse party should have received a notice, an order entered on a motion without notice is merely irregular and not void for lack of jurisdiction but good until vacated or set aside.
Statutes in some jurisdictions require that supporting papers mentioned in the notice of motion be served therewith. If a paper is not served, it is not admissible in evidence, but the motion may be heard and other supporting papers properly served may be admitted in evidence.
Id. at § 10. (Emphasis added; footnotes omitted).
[¶ 50] Corpus Juris Secundum also defines a motion as “an application for an order made to a court or judge, directing that some act be done in favor of the applicant.” 60 C.J.S. Motions & Orders § 1 (1969). C.J.S. cites cases restating the general rule that a motion is an application to a court. See Lindley v. Flores, 672 S.W.2d 612, 614 (Tex. Ct.App.1984) (stating “[a] motion is an application for an order of the court”); Fensterheim v. Fensterheim, 96 Misc.2d 108, 408 N.Y.S.2d 756, 758 (N.Y.Sup.Ct.1978) (stating “[a] motion is an application for an order and is made in an action or special proceeding which are necessary predicates for such application”); Wolff v. Wolff, 25 Or.App. 739, 550 P.2d 1388, 1390 (1976) (stating “[a] motion is a request for an order of the court”).
II
[¶ 51] Our cases recognize the importance of both the court and the opposing party to the motion process:
*83A notice of motion and motion are sufficient if the motion and attached papers and records are sufficiently precise to advise both the adversary and the court of the question involved. Eisenbarth v. Eisenbarth, 91 N.W.2d 186 (N.D.1958). In Eisenbatth, supra, 91 N.W.2d at 188, we concluded that a notice of motion was sufficient for the court to modify child support where the notice sought “an order modifying the judgment by making the defendant pay the second mortgage and ‘for such other relief as to the court may seem just and equitable.’ ”
Bloom v. Fyllesvold, 420 N.W.2d 327, 331 (N.D.1988) (emphasis added). This Court has stated it “is a well-recognized principle of law in our State that a motion for a new trial is addressed to the sound discretion of the trial court.” Kraft v. Kraft, 366 N.W.2d 450, 453 (N.D.1985) (emphasis added).
[¶ 52] There was no ambiguity or conflict in our rules in effect at the relevant time. N.D.R.Civ.P. 59(c) (1997) provided:
(c) Time for Motion for New Trial. A motion for a new trial must be made not later than the following time after notice of entry of judgment:
1. Upon the ground of newly discovered evidence, within 6 months; and
2. Upon any other ground, within 60 days, unless the court, for good cause shown, extends the time.
(Emphasis added). N.D.R.Ct. 3.2(a) provided:
(a) Submission of Motion. Notice must be served and filed with a motion. The notice must indicate the time of oral argument, or that the motion will be decided on briefs unless oral argument is timely requested. Upon setving and filing a motion, the moving party shall serve and file a brief and other supporting papers and the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers. The moving party may serve and file a reply brief within 5 days after service of the answer brief. Upon the filing of briefs, or upon expiration of the time for filing, the motion is deemed submitted to the court unless counsel for any party requests oral argument on the motion. If any party who has timely served and filed a brief requests oral argument, the request must be granted. A timely request for oral argument must be granted even if the movant has previously served notice indicating that the motion is to be decided on briefs. The party requesting oral argument shall secure a time for the argument and serve notice upon all other parties. The court may hear oral argument on any motion by telephonic conference. The court may require oral argument and may allow or require testimony on the motion. Requests for oral argument or the taking of testimony must be made not later than 5 days after expiration of the time for filing the answer brief.
(Emphasis added).
[¶ 53] Neither N.D.R.Civ.P. 59(i) nor (j) (1997) creates a conflict with N.D.R.Ct. 3.2:
(i) On Initiative of Court. Not later than 10 days after notice of entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.
(j) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment must be served not later than 10 days after notice of entry of the judgment.
Read in its entirety, N.D.R.Civ.P. 59(i) relates only to orders for a new trial on the initiative of the court, and N.D.R.Civ.P. 59(j) relates to a motion to alter or amend a judgment, not an order for a new trial, and even if it did, there would be nothing inconsistent.
Ill
[¶ 54] Justice Maring cites three cases as establishing that Motions “could be ‘made’ by ‘service’” (apparently without notice to the court): Sinett, Inc. v. Blairex Lab., Inc., 909 F.2d 253, 253 (7th Cir.1990); Allen v. Ault, *84564 F.2d 1198, 1199 (5th Cir.1977); and Keohane v. Swarco, Inc., 820 F.2d 429, 431-32 (6th Cir.1963). But as the cases reflect, at the time, the operative word in Federal Rule 59 was not “made” but “served.” At the time, the federal rule, unlike our rule, required: “A motion for a new trial shall be served not later than 10 days after entry of the judgment.” F.R.Civ.P. 59(b) (emphasis added).
[¶ 55] Justice Maring, at ¶ 19, quotes a footnote from the obsolete second edition of Moore’s Federal Practice: “ ‘Although Rule 52(b) refers to a motion of a party “made,” while Rule 59(b) and (d) refer to a motion “served,” there is no difference in effect, since a motion is “made” by causing it to be served.’ 5A Moore, Federal Practice, § 52.11[1] n. 8 (2d Ed.1979) (emphasis added).” When the second edition was current, the quoted footnote was criticized. See, e.g., Keohane, 320 F.2d at 431 (“Professor Moore cites no cases to support the statement in the footnote.”). The third (current) edition of Moore’s Federal Practice now states flatly the black-letter law: “Motion Is Application to Court for Order.” Moore’s Federal Practice, § 7.03(1) (3rd ed.1998).
IV
[¶ 56] A motion is made to the court, not to the opposing party. There are usually requirements that motions be served on the opposing party. “Notice” of a motion which has not been “made” is just as meaningless as notice of entry of a non-existent judgment. The motion was not timely made. No subsequently adopted proposals of the Joint Procedure Committee to make language parallel affect any of this. I would dismiss.
[¶ 57] NEUMANN, J., concurs.