Overview

Keyword Index

SECTION 1.1
JURISDICTION; TIME LIMITS

1.1-1 Jurisdiction
A. General
B. Jurisdiction: Monetary Limit
C. Subject-Matter Jurisdiction: Exclusions
D. Subject-Matter Jurisdiction: Kinds of Actions
E. Territorial Jurisdiction
F. Venue of Actions
G. Personal Jurisdiction
H. Indian Jurisdiction

1.1-2 Time Limits for Bringing Actions
A. Computation of Time Limits
B. Time Limits in General
C. Other Time Limits
D. Determination That Time Limit Has Passed

SECTION 1.2
CIVIL PROCEDURE BEFORE TRIAL

1.2-1 Complaint
A. Filing of Complaint and Docketing of Action
B. Other Matters Related to Complaint

1.2-2 Summons
A. Purpose
B. Issuance
C. Service of Process - General
D. Service of Process - Methods of Service
E. Service by Mail
F. Who May Serve
G. Proof of Service of Process; Return

1.2-3 Answer, Counterclaim, Third-Party Complaint
A. General
B. Counterclaim or Setoff
C. Third-Party Complaint
D. Interpleader
E. Filing of Answer
F. Jury Demand by Defendant
G. Clarifying or Amending Complaint or Answer
H. Service of the Answer
I. Defenses
J. Default

1.2-4 Pleadings and Motions
A. Service and Filing of Papers
B. Pleadings
C. Motions
D. Motion for Judgment on the Pleadings
E. Motion for Summary Judgment

1.2-5 Parties
A. Who may Sue; Real Party in Interest
B. Minors and Incapacitated Persons
C. Death or Incapacity; Transfer of Interest
D. Joinder of Parties
E. Pro Se and Attorney Appearance
F. Other Authorized Appearances
G. Attorney Appearance
H. Withdrawal or Attorney Failure to Act

1.2-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal Without Court Order
C. Voluntary Dismissal By Court Order
D. Involuntary Dismissal By Court Order
E. Counterclaims, Cross-Claims
and Third-Party Claims
F. Costs of Previously Dismissed Action
G. Filing; Service

1.2-7 Other Preliminary Matters
A. Discovery
B. Pretrial Conference
C. Notice of Trial
D. Recording of Trial
E. Appointment of Special Master, Arbitrator or Metropolitan Court Judge Pro Tempore

1.2-8 Joint and Separate Trials
A. Reasons
B. Motions; Order

SECTION 1.3
JUDGMENT; ENFORCEMENT; APPEAL

1.3-1 Judgment
A. Definition
B. Entry of Judgment
C. Multiple Claims or Multiple Parties
D. Damages
E. Interest to Date
F. Costs to be Reimbursed (Taxing Costs)
G. Satisfaction of Judgment
H. Relief from Judgment: Clerical Mistake
I. Relief from Judgment: Void Judgment

1.3-2 Default Judgment
A. Definition; Types
B. Entry of Default Judgment
C. Motion to Set Aside Default Judgment
D. Multiple Parties

1.3-3 Reserved

1.3-4 Determination of Judgment Debtor's Assets
A. Judgment Debtor Examination
B. Deposition

1.3-5 Appeal
A. Right of Appeal
B. Notice of Appeal
C. Record on Appeal
D. Stay of Proceedings to Enforce Judgment
E. Review and Remand

SECTION 1.4
EXECUTIONS AND GARNISHMENTS

1.4-1 Executions of Judgments
A. Definitions; General
B. Writ of Execution
C. Exemptions
D. Claim of Exemption for Satisfaction of Separate and Community Debts
E. Transcript of Judgment
F. Levy and Sheriff's Sale
G. Renewal of Execution
H. Examinations and Depositions to Aid Execution

1.4-2 Garnishment
A. Definitions; General
B. Types of Garnishment
C. Garnishment in Advance of Execution
D. Garnishment in Aid of Execution of Judgment
E. Garnishment in Aid of Execution of Judgment Entered in Another Court
F. Default Judgment Against Garnishee
G. Release of Garnishment
H. Miscellaneous
I. Appeals on Rulings on Claims of Exemptions

SECTION 1.5
SPECIAL PROCEEDINGS

1.5-1 Attachment
A. Definition
B. Constitutionality
C. Procedures
D. Attachment Service Response
E. Dissolution of Attachment
F. Exemptions from Attachmen
G. Appeals in Attachment

1.5-2 Replevin
A. Definition
B. Complaint; Limits
C. Judgment; Execution

1.5-3 Forcible Entry or Unlawful Detainer
A. Procedure; Complaint
B. Judgment
C. Execution
D. Appeal

1.5-4 Bankruptcy
A. Overview of the Bankruptcy Process
B. Effect of Bankruptcy on Civil Court Cases
C. Effect of Bankruptcy on Criminal Court Cases
D. Effect of Bankruptcy on Collection of Criminal Fees and Fines

SECTION 1.6
LANDLORD-TENANT PROCEEDINGS

1.6-1 Uniform Owner-Resident Relations Act
A. Important Note
B. Coverage; Application of Act
Chart: Obligations of Owner and Resident Under Owner-Resident Relations Act
C. Obligations of the Owner Under the Act
D. Obligations of the Resident Under the Act
E. Types of Actions Allowed Under the Act
Chart Owner Resident Relations Act
Causes of Action
F. Notice
G. Termination of Rental Agreements and Abatement of Rent
H. Actions for Possession
I. Actions for Damages
J. Petition by Owner for Restitution; Petition by Resident for Relief; Summons
K. Judgment; Writ of Restitution
L. Actions for Counterclaim
M. Appeal in Actions for Possession
N. Deposits
O. Disposition of Property Left on Premises

1.6-2 Mobile Home Act
A. Application of Act
B. Conflicts of Law
C. Obligations of Owner
D. Obligations of Tenant
E. Tenancy Requirements, Rental Agreements
F. Termination of Tenancy
G. Action for Termination/Forcible Entry/Detainer
H. Security Agreements/Deposits
I. Alternative Dispute Resolution
J. Conflicts of Law/Mediation

CRIMINAL CHAPTER

SECTION 2.1
MISDEMEANORS: GENERAL; PROCEDURES BEFORE TRIAL

2.1-1 General
A. Definitions
B. Jurisdiction
C. Venue
D. Time Limitations
E. Determination of Present Competency

2.1-2 Complaint; Summons; Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Criminal Summons
C. Arrest without a Warrant
D. Preliminary Rights
E. Probable Cause Determination
F. Detention Hearing for Children
G. Arrest Warrant

2.1-3 Arraignment
A. Definition; General
B. Juveniles in the Magistrate and
Metropolitan Courts
C. Explanation of Rights
D. Representation by Counsel
E. Entry of Plea

2.1-4 Joint and Separate Trials
A. Joinder of Offenses
B. Joinder of Defendants
C. Consolidation
D. Severance; Separate Trials

2.1-5 Jury Trial
A. Right to Jury Trial
B. Exercise or Waiver of the Right to Jury

2.1-6 Dismissal
A. Definitions; General
B. Voluntary Dismissal by Prosecution
C. Dismissal for Failure to Prosecute
D. Refiled Complaints in Metropolitan Court

2.1-7 Sentencing Options
A. Deferral, Suspension and Probation

2.1-8 Other Preliminary Matters
A. Subpoenas
B. Discovery
C. Pretrial Conference
D. Motions
E. Recording of Trial
F. Service and Filing by Facsimile
G. Service and Filing by Electronic Transmission

SECTION 2.2
FELONIES

2.2-1 General
A. Definition
B. Authority of Court

2.2-2 Complaint and Arrest Warrant
A. Filing Complaint and Docketing of Action
B. Issuance of Arrest Warrant
C. Arrest and Return
D. Arrest Followed by Complaint
E. Amendment of Complaints

2.2-3 First Appearance
A. Definition; General
B. Explanation of Rights
C. Representation by Counsel
D. Determination of Indigency
E. Release; Bail
F. Explanation of Preliminary Examination and Grand Jury Indictment Process
G. Dialogue for First Appearance

2.2-4 Fugitive Actions
A. Fugitive Complaint
B. Arraignment and Commitment Hearing
C. Transfer of Actions

SECTION 2.3
MISDEMEANORS: JUDGMENT; SENTENCE; APPEAL

2.3-1 General
A. Judgment and Sentence; Written Orders
B. Right to Appeal

2.3-2 Sentencing
A. Pre-Sentence Report
B. Sentencing Options
C. Sentencing for Hate Crimes
D. Terms and Conditions of a Deferred or Suspended Sentence: Probation
E. Successful Completion of or Violation and Revocation of Probation

2.3-3 Court Costs and Fines
Payment of Court Costs and Fines

2.3-4 Appeal
A. Right, Notice and Docketing of Appeal
B. Transcript of Proceedings
C. Conditions of Release
D. Disposition; Time Limitations

SECTION 2.4
GAME AND FISH VIOLATIONS

2.4 Game and Fish Violations
A. Jurisdiction; Penalties
B. Arrest; Search Warrants; Citations
C. Prosecution

SECTION 2.5
SEARCH AND SEIZURE

2.5-1 Search Warrants
A. General
B. Sufficiency of Affidavit; Probable Cause

2.5-2 Searches Without Warrants
A. General
B. Searches of Persons and Places
C. Searches of Motor Vehicles

2.5-3 Motion to Suppress
A. General
B. Who May File Motion
C. Grounds for Suppression

2.5-4 Gambling: Search and Seizure
A. Affidavit
B. Search Warrant
C. Execution: Arrest

2.5-5 Inspection Orders
A. Administrative Inspection; Defined
B. Application for Inspectorial Search Order
C. Probable Cause for Issuance of Inspection Order
D. Exceptions to Requirement for Inspection Order

SECTION 2.6
RELEASE; BAIL

2.6-1 General
A. Right to Release; Purpose of Conditions
B. Factors to be Considered Prior to
Setting Conditions of Release
C. Conditions of Release to Assure Orderly Administration of Justice
D. Release Proceedings
E. Release Forms
F. Failure to Comply with Conditions of Release
G. Failure to Appear
H. Forfeiture of bail -- exoneration
I. Misdemeanors: Continuation and
Review of Release

2.6-2 Personal Recognizance and Bonds
A. Personal Recognizance
B. Bonds; General
C. Unsecured Appearance Bond
D. Appearance Bond: Cash Deposit.
E. Appearance Bond: 100 Percent Cash Deposit
F. Bail Bond
G. Bail Bond: Discharge of Surety
H. Bonds: Forfeiture

GENERAL CIVIL & CRIMINAL CHAPTER

SECTION 3.1
SUBPOENAS

3.1 Subpoenas
A. General
B. Issuance; General Rules
C. Service of Subpoena
D. Motion to Quash Subpoena
E. Failure of Appear

SECTION 3.2
JURY SELECTION AND TRIALS

3.2-1 Calling of Prospective Jurors
A. General
B. Request for Qualified Jurors
C. Excusing
D. Jury Costs

3.2-2 Trials General

3.2-3 Calling the Cause
A. Start of Trial
B. Readiness to Proceed with Trial
C. Motion to Quash Jury Array
Appendix
UJI Civil 13-106 7
UJI Criminal 14-101 10

3.2-4 Selection of Jury
A. Calling Jurors
B. Voir Dire: General
C. Challenges for Cause
D. Drawing Names
E. Peremptory Challenges
F. Additional Jurors
G. General
Appendix
   Voir Dire Instructions in Civil Cases
   Voir Dire Instructions in Criminal Cases

3.2-5 Oath to Jurors; Preliminary Instructions
A. Oath
B. Preliminary Instructions
C. Opening statement -- UJI Civil 13-108
Appendix
   Preliminary Instructions in Civil Cases
   Preliminary Instructions in Criminal Cases

3.2-6 Witness Oath; Exclusion Rules; Opening Statements
A. Witness Oath
B. Exclusion Rule
C. Opening Statements

3.2-7 Presentation of Evidence
A. Order of Presentation
B. Witnesses: Testimony
C. Defendant as Witness
D. Introduction of Documentary Evidence and Other Things
E. Objections
F. Confessions

3.2-8 Rules of Evidence
A. Overview
B. Application of the Rules of Evidence
C. Construction of the Rules of Evidence
D. General Principles of Evidence
E. Relevancy
F. Evidence on Specific Topics
G. Witness Testimony
H. Hearsay
I. Privileges

3.2-9 Instructions to Jury
A. General
B. Instructions in Criminal Cases
C. Instructions in Civil Cases
D. Requested Instructions

3.2-10 Closing Arguments
A. Definition
B. Order of Presentation

3.2-11 Jury Deliberation; Verdict; Trial by Court
A. Deliberation
B. Procedure When Jury Reaches Verdict
C. Failure of Jury to Reach Verdict
D. Trial by Court: Nonjury Trials

3.2-12 Motions for Directed Verdict or Dismissal During Trial
A. Motion for Directed Verdict
B. Motions for Dismissal

3.2-13 Motion for New Trial

3.2-14 Preservation and Disposition of Exhibits
A. Preservation
B. Return to Court for Appeal
C. Final Disposition

SECTION 3.3
BENCH WARRANT

3.3 Bench Warrant
A. General
B. Issuance
C. Execution; Return
D. Grounds for Issuing Bench Warrant

SECTION 3.4
CONTEMPT

3.4 Contempt
A. General; Definitions
B. Direct Contempt
C. Indirect Contempt
D. Notice
E. Hearing
F. Punishment; Appeal

SECTION 3.5
EXCUSAL, RECUSAL, INABILITY TO PROCEED

3.5-1 Excusal, Recusal, Inability to Proceed
A. Excusal
B. Recusal
C. Inability of a Judge to Proceed
D. Procedure for Replacing a Judge Upon Excusal or Recusal - Magistrate Court
E. Procedure for Replacing a Judge Upon Excusal or Recusal - Metropolitan Court

3.5-2 Recording of Proceedings
A. Record
B. Broadcasting and Photographs

SECTION 3.6
EFFECTIVE DATES OF STATUTES AND COURT RULES

3.6 Effective Dates of Statute and Court Rules
A. General
B. Exceptions

1.1-1 Jurisdiction

A. General
Magistrate and metropolitan courts are courts of limited jurisdiction and have jurisdiction over matters only as provided by law. Sections 34-8A-3, 35-3-3 and -4; see also N.M. Const. art. VI, § 26. All references to "the court" refer to either magistrate or metropolitan courts.

B. Jurisdiction: Monetary Limit
Judges in courts of limited jurisdiction have jurisdiction in civil actions in which the debt or sum claimed does not exceed $10,000, exclusive of interest and costs. Section 34-8A-3(A)(2). Magistrate courts also have jurisdiction to collect a debt that arose within the magistrate district. Cf. Postal Fin. Co. v. Sisneros, 84 N.M. 724, 507 P.2d 785 (1973) (holding that the district court did not have jurisdiction to enter a garnishment order for an amount less than the jurisdictional limit of the magistrate court in the same district).

C. Subject-Matter Jurisdiction: Exclusions
Courts of limited jurisdiction do not have jurisdiction in civil actions that include:

1. Actions for malicious prosecution, libel or slander.
2. Actions against public officers for misconduct while in office.
3. Actions for specific performance of contracts for sale of real property. (This exception would not exclude a real estate agent from suing in courts of limited jurisdiction for a commission on the sale of real property.)
   4. Actions involving disputes of title or boundaries of land. (This exclusion does not apply to eviction, landlord-tenant relations, or forcible entry/ unlawful detainer actions. If title to land is raised directly, the court is divested of jurisdiction.)
4. Actions affecting domestic relations, including:
   a. divorce, annulment or separation, or
   b. custody, support, guardianship, adoption, or dependency of children.
5. Actions for the granting of writs of habeas corpus to release persons from unlawful imprisonment.
6. Actions for the granting of extraordinary writs including:
   a. mandamus, which compels a public official to perform his or her duty;
   b. prohibition, which prevents a public official from carrying out a specific duty; and
   c. injunction, which commands or prohibits an action by a party.
7. Actions for the granting of any replevin orders or writs that provide for seizure of property before judgment. Section 35-3-3; see also §1.5-2 of this Benchbook regarding replevin.
8. Actions where jurisdiction is vested exclusively in another court.

D. Subject-Matter Jurisdiction: Kinds of Actions (§35-3-3(B))
Subject to the limitations in Sections (B) and (C) above, jurisdiction of the courts of limited jurisdiction extends to the following civil actions:

1. Actions in contract.
2. Actions in quasi-contract.
3. Actions in tort.
4. Actions for forcible entry or unlawful detainer. (These actions involve property not covered by the Uniform Owner-Resident Relations Act). Sections 35-10-1 and -2; see also §1.5-3 of this Benchbook regarding forcible entry and unlawful detainer.
5. Actions of replevin. (The court shall not issue any writs of replevin or any other orders providing for a seizure of personal property before judgment.)
6. Actions for writs of garnishment. (Judges may issue these writs before judgment by the court, but after compliance with specific requirements established by statute.)
7. Actions under the Uniform Owner-Resident Relations Act such as landlord-tenant relations.

See §1.1-2 of this Benchbook regarding time limits for bringing various kinds of actions.

E. Territorial Jurisdiction

1. The territorial jurisdiction of Metropolitan and Magistrate Courts is coextensive with the boundaries of the county in which it is located. Section 34-8A-3(A).
2. A judge generally does not have jurisdiction outside his or her territorial limits except for enforcement of judgments or upon designation by a district court judge. Section 35-3-6.
3. A district court judge may also designate a Metropolitan Court judge as a special master in civil or criminal cases.
4. Magistrate judges may hear an action in a district other than their own when a district judge appoints that judge to hear the action because of the unavailability of a magistrate in the district. Section 35-3-6(B); see also §1.2-3(I) of this Benchbook regarding jurisdiction defenses.

F. Venue of Actions

1. In a civil action within Magistrate or Metropolitan Court jurisdiction, the case must be tried:
   a. in the county where the plaintiff or the defendant resides or may be found; or
   b. in the county where the cause of action arose. Section 34-8A-3; Magis. Ct. R. 2-202; Metro. Ct. R. 3-202.

G. Personal Jurisdiction (§35-3-6; Magis. Ct. R. 2-202; Metro. Ct. R. 3-202.)

1. In a civil action, the court has jurisdiction over the defendant for service of process wherever the defendant may be found within the State under the following circumstances:
   a. If the defendant is an individual other than a minor or an incapacitated person and was properly served with process in accordance with the court rules.
   b. If the defendant is either a domestic or foreign corporation, the State of New Mexico or a political subdivision thereof, or the board of trustees of any land grant and was properly served with process in accordance with the court rules.
2. In a civil action, no judgment by default shall be entered by the court when process has been served by mail unless:
   a. the defendant has appeared in court in person; or
   b. the defendant or his attorney has filed a written answer in the pending case; or
   c. the court is presented with additional evidence that the defendant received the summons; or
   d. the defendant was also properly served by other means in accordance with court rules.

H. Indian Jurisdiction

1. Civil jurisdiction involving Indians or arising on Indian land may be proper in the state courts in some instances. The state court has civil jurisdiction over an Indian matter if the answer to each of the following three questions is “no” (and the regular requirements for state court jurisdiction are met):

   a. Has Congress denied jurisdiction to New Mexico state courts? Foundation Reserve v. Garcia, 105 N.M. 514, 734 P.2d 754 (1987).

   b. Has New Mexico disclaimed jurisdiction?

   c. Would exercise of state jurisdiction infringe on the right of the Indians to govern themselves? Williams v. Lee, 358 U.S. 217 (1959). To answer this question, the court must consider:

   i. Whether the parties are Indian or non-Indian;

   ii. Whether the cause of action arose within Indian Country; and

   iii. The nature of the interest to be protected.

   A state court can obtain jurisdiction over Indians who reside on an Indian reservation when exercise of that jurisdiction would not infringe on the right of Indians to govern themselves.

2. Concurrent state and tribal court jurisdiction has been found to be proper when the cause of action arose outside of the reservation boundaries. See, e.g., State Securities, Inc. v. Anderson, 84 N.M. 629, 506 P.2d 786 (1973) (state and tribal courts have concurrent jurisdiction in cases between Indians and non-Indians involving contractual obligations incurred off the reservation). Compare Williams v. Lee, 358 U.S. 217 (1959) (holding that the Navajo Nation had exclusive jurisdiction in a collection action by a non-Indian merchant against tribal members for goods sold on the reservation).
3. Generally speaking, the U.S. Supreme Court has held that state courts are “open” to Indian plaintiffs. Felix v. Patrick, 145 U.S. 317, 12 S. Ct. 862, 36 L. Ed. 719 (1892).
4. Jurisdiction in state courts has also been proper in several kinds of cases. Examples of cases in which state civil jurisdiction has been recognized are listed below. This list is not exhaustive; rather, it is intended to serve as a brief introduction to this complex and evolving area of the law.

   a. Lawsuits by non-Indians against non-reservation Indians who are served with process off the reservation. Batchelor v. Charley, 74 N.M. 717, 398 P.2d 49 (1965).

   b. Tort lawsuits by Indians against non-Indians for injuries and wrongful death resulting from an accident on a state right-of-way within the reservation. Paiz v. Hughes, 76 N.M. 562, 417 P.2d 51 (1966).

   c. A lawsuit brought by non-Indians against reservation Indians for breach of a contract made off the reservation, but when process was served on the reservation. State Securities, Inc. v. Anderson, 84 N.M. 629, 506 P.2d 786 (1973).

   d. A lawsuit for enforcement of the New Mexico Revised Uniform Reciprocal Enforcement of Support Act against an Indian defendant who resides on the reservation. Natewa v. Natewa, 84 N.M. 69, 499 P.2d 691 (1972).

   e. An action for declaratory judgment regarding an automobile insurance policy entered into by a tribal member off the reservation, even when the accident occurred on the reservation. Foundation Reserve v. Garcia, 105 N.M. 514, 734 P.2d 754 (1987).

   Consult the Judicial Education Center website at http://jec.unm.edu/ for more information on state-tribal jurisdiction.