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

1.2-2 Summons

A. Purpose
The Court issues a summons:

1. to notify the defendant that an action has been filed against him or her; and
2. to require the defendant to appear or file an answer within 20 days after service of process has been made, plus three days for mail service. Magis. Ct. R. 2-202(E); Metro. Ct. R. 3-202(E).

B. Issuance

1. In order for the plaintiff to obtain a summons, a complaint must have been filed and docketed and the filing fee paid. Magis. Ct. R. 2-202(A); Metro. Ct. R. 3-202(A); Civil Form 4-204 (Civil Summons).
2. Normally, the summons is issued at the time the complaint is filed. However, the plaintiff may request that a summons not be issued at that time; failure to request a summons within six months is grounds for an order of dismissal without prejudice for failure of the plaintiff to pursue the case. Magis. Ct. R. 2-305(D); Metro. Ct. R. 3-305(D); see also §1.2-6(D) of this Benchbook regarding dismissal for failure of plaintiff to pursue the case.
3. Additional or amended summonses (also known as "alias summons") shall be issued after issuance of the original summons if the original summons was not correct or could not be served in its original form, has not been returned, is returned without service, or has been improperly served. Magis. Ct. R. 2-202(I); Metro. Ct. R. 3-202(I). It is the duty of the Court Clerk to issue "alias summonses" at the request of a party to the lawsuit. Magis. Ct. R. 2-202(I) ; Metro. Ct. R. 3-202(I). The summons shall be in the form approved by the New Mexico Supreme Court. The summons may be prepared by the plaintiff's attorney and submitted to the Court for the judge's signature and entry of the date of issuance. Magis. Ct. R. 2-202 (B) & (I); Metro. Ct. R. 3-202 (B) & (I); Civil Form 4-204 (Civil Summons).
4. Multiple Plaintiffs or Defendants:

   a. Although not encouraged, the names of all plaintiffs or defendants may be entered on one summons provided that sufficient copies may be made for separate service on each plaintiff or defendant. It is preferable that a separate summons be issued and served on each defendant. If spouses are joined in the complaint each must be separately served.

   b. If summonses are served on one or more, but not all, multiple defendants, the plaintiff may proceed against the defendants served as if they were the only defendants.

5. The defendant is required to file an answer to the complaint within twenty (20) days after the summons and complaint have been served on the defendant.
6. An amended complaint must be served on every defendant as provided for service of the original complaint, unless there is an entry of appearance by counsel or a responsive pleading by the defendant in which case delivery of an amended complaint, motions and notices of hearing may be mailed to the defendant or defense counsel. If a responsive pleading has been filed, an amended complaint may only be filed in the case with leave of the court, although permission should be freely given. Magis. Ct. R. 2-304; Metro. Ct. R. 3-3-04.

C. Service of Process: General (Magis. Ct. R. 2-202(A); Metro. Ct. R. 3-202(A))

1. Service of process is the delivery of the summons and complaint to the person being sued.
2. Each person being served receives:

   a. a copy of the summons;

   b. a copy of the complaint, along with any written documents filed with the complaint;

   c. a copy of any other pleading filed at the time of the initial pleading in the case such as a notice of disqualification of the first assigned judge, a jury demand or a motion to vary the usual rules for some reason; and

   d. a copy of the form for an answer. Magis. Ct. R. 2-202(C); Metro. Ct. R. 3-202(C).

3. The original of the summons is used for making proof of service return and is usually thereafter filed with the court by plaintiff. The defendant gets a copy of the original summons along with a copy of the original complaint. The original complaint remains in the court file.
4. After filing, the Court gives the plaintiff the summons, complaint, and answer form, which the plaintiff is responsible for having served on the defendant. Magis. Ct. R. 2-202(A); Metro. Ct. R. 3-202(A).

D. Service of Process: Methods of Service
Personal service of a summons and complaint to initiate a suit or a writ of garnishment to attach funds in an existing case must be made upon:

1. An individual who is not a minor and who is not incapacitated. Magis. Ct. R. 2-202(F)(1); Metro. Ct. R. 3-202(F)(1); see also laws that control service of process in specific kinds of actions (for example, Sections 47-8-10 for actions under the Owner-Resident Relations Act and 38-1-16 for personal service outside of the state):

   a. by delivering a copy of the complaint and summons on the defendant personally;

   b. by leaving the summons and complaint where defendant has been found if defendant refuses service;

   c. by delivering a copy of the summons and complaint to a person residing at defendant's abode who is over 15 years old; or

   d. if no person is available to accept delivery, by posting of a copy of the summons and complaint in the most public part of defendant's premises and by the plaintiff mailing copies to defendant's last known address. The "last known address" presumably is the same address at which the initial service was posted unless it is an address at which defendant's mail is not normally delivered. Moya v. Catholic Archdiocese of New Mexico, 92 N.M. 278, 587 P.2d 425 (1978).

2. A domestic or foreign corporation by delivering process to an officer, managing or general agent, or registered agent. Magis. Ct. R. 2-202(F)(2); Metro. Ct. R. 3-202(F)(2); Moody v. Winchester Management Corp., 321 A.2d 562 (D.C. App. 1974).
3. A partnership:

   a. by delivering a copy of the summons and complaint to any general partner; or

   b. by delivering process at the place of business to a manager or agent in charge, if no general partners are available. Magis. Ct. R. 2-202(F)(2); Metro. Ct. R. 3-202(F)(2).

4. Any other unincorporated association:

   a. by serving process to the officer or authorized agent and by mailing a copy to the unincorporated association; or

   b. by delivering process at the place of business of the person in charge of the association, if no officer or agent is available. Magis. Ct. R. 2-202(F)2); Metro. Ct. R. 3-202(F)(2).

5. The State of New Mexico by delivering copies of the summons and complaint (or writ):

   a. in garnishment actions, on the department of finance and administration, the attorney general and on the head of the agency;

   b. in other actions, on the governor, attorney general and agency. Service may be made by delivering a copy of the summons and of the complaint to the head or to his receptionist. Where an executive secretary is employed, he shall be considered the head. Magis. Ct. R. 2-202(F)(3); Metro. Ct. R. 3-202(F)(3); see also §38-1-17; El Dorado Utilities, Inc. v. Galisteo, 120 N.M. 165, 899 P.2d 608 (Ct. App. 1995).

6. A county: by delivering process to the county clerk, who notifies the district attorney of the judicial district of that county. Magis. Ct. R. 2-202(F)(4); Metro. Ct. R. 3-202(F)(4).
7. A municipal corporation: by delivery of process to the city, town or village clerk, who notifies the governing body. Magis. Ct. R. 2-202(F)(5); Metro. Ct. R. 3-202(F)(5).
8. The board of trustees of any land grant:

   a. by delivering process to the president of the board of trustees; or

   b. by delivering process upon the secretary of the board of trustees, if the president is absent. Magis. Ct. R. 2-202(F)(6); Metro Ct. R. 3-202(F)(6); see also §§49-1-1 through 49-10-6.

9. A minor:

   a. by delivering a copy of the summons and complaint to the conservator or guardian of the minor; or

   b. by delivering a copy of the summons and complaint to the minor and an adult with whom the minor is living; or

   c. by delivering a copy of the summons and complaint to the guardian ad litem for the minor. Magis. Ct. R. 2-202(D) & (F)(7); Metro. Ct. R. 3-202(D) & (F)(7).

10. An incapacitated person:

    a. by delivering process to a conservator or guardian, if there is one; or

    b. delivering process to the person in the manner described in Rules 3-202(F)(1) and 2-202(F)(1). Magis. Ct. R. 2-202(F)(8); Metro. Ct. R. 3-202(F)(8).

E. Service by mail
Notwithstanding any provision of the preceding subsection, service of process may also be made by mailing process to the person to be served at the person's last known residence or business postage prepaid for ordinary first class mail. Magis. Ct. R. 2-202(E); Metro. Ct. R. 3-202(E). Service by mail is made:

1. By mailing to the person to be served the summons, complaint, two (2) copies of a Notice and Receipt of Summons and Complaint and a return envelope, postage prepaid, addressed to the sender. Civil Form 4-208 (Notice and Acknowledgment of Receipt of Summons and Complaint).
2. Service of a summons by mail is only effective if an acknowledgment of service, which is signed by the person served, is filed with the court.
3. If acknowledgement of receipt is not received by the sender within twenty (20) days after mailing service, plus three (3) days for service by mail, plaintiff must have complaint served personally, and the court shall order payment of costs of service by the person served, unless party shows good cause for failure to acknowledge service. Magis. Ct. R. 2-202(E); Metro. Ct. R. 3-202(E).

F. Who May Serve (Magis. Ct. R. 2-202(D); Metro. Ct. R. 3-202(D))

1. Generally, any person over the age of eighteen (18) who is not a party to the action may serve process. Process may also be served by the sheriff of the county where the defendant is found.
2. Service of writs of attachment and writs of replevin create an exception to the general rule above. Such writs shall be served by the sheriff of the county where the property or person is found, unless the court orders service by any person over the age of eighteen (18) years and not a party to the action.

G. Proof of Service of Process: Return (Civil Form 4-204 (Return for Completion by Sheriff or Deputy and Return for Completion by Other Person Making Service))

1. Proof of service is the method by which the person serving process certifies to the court that process has been served. The form used for proof of service is called a return or Notice and Receipt of Summons and Complaint.
2. The original summons with proof of service shall be returned to the court. Magis. Ct. R. 2-202(G) and 2-203(E); Metro. Ct. R. 3-202(G) and 3-203(E).
3. Proof of service shall be made promptly to the court and, in any event, within the time during which the person served must respond to the service. Failure to make proof of service shall not affect the validity of service, unless the service was by mail. Magis. Ct. R. 2-202(F); Metro. Ct. R. 3-202(F); Civil Form 4-208 (must be filled out and returned to the sender when service is by mail).
4. Proof of service shall be by certificate of an attorney of record or of the sheriff or a deputy sheriff, or if made by any other person, by affidavit of the person.