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

1.2-3 Answer, Counterclaim and Third-Party Complaint

A. General

1. An answer is the means by which the defendant contests plaintiff's claim. Magis. Ct. R. 2-302; Metro. Ct. R. 3-302.
2. An answer contains all defenses raised by the defendant and any counterclaim or setoff against the plaintiff. Magis. Ct. R. 2-302(B) & (C); Metro. Ctr. R. 3-302(B) & (C).
3. A defendant shall file his answer on or before the appearance date stated in the summons. Magis. Ct. R. 2-302(A); Metro. Ct. R. 3-302(A).

B. Counterclaim or Setoff

1. A counterclaim is a claim presented by the defendant in opposition to or deduction from the claim of the plaintiff.

   a. If a counterclaim is filed, the plaintiff may file a reply. Magis. Ct. R. 2-301(A) & (C); Metro. Ct. R. 3-301(A) & (C).

   b. Plaintiff's failure to reply does not constitute an admission of the truth of a counterclaim or setoff.

2. A setoff is:

   a. a counter-demand which the defendant states against the plaintiff and which arises out of a transaction outside of plaintiff's cause of action; or

   b. a money demand independent of and unconnected with the plaintiff's cause of action.

3. Pursuant to amended court rules, there are no compulsory counterclaims in civil cases. Magis. Ct. R. 2-302(D); Metro. Ct. R. 3-302(C).
4. A counterclaim or setoff that exceeds ten thousand ($10,000) dollars shall be amended to conform to the court's jurisdiction or shall be dismissed without prejudice. Magis. Ct. R. 2-302(E); Metro. Ct. R. 3-302(D); see also Sections 34-8A-3(A)(2) (Metropolitan court jurisdiction) and 35-3-3(A) (Magistrate court jurisdiction);
5. If the counterclaim or setoff is dismissed, the court proceeds as if none had been filed.

C. Third-Party Complaint

1. Any defendant may file a third-party complaint within ten (10) days of service of defendant's original answer. Magis. Ct. R. 2-301(D); Metro. Ct. R. 3-301(D).
2. The defendant filing the third-party complaint must serve it on the opposing party in the manner provided for service of pleadings and other papers. Magis. Ct. R. 2-301; Metro. Ct. R. 3-301.
3. The third-party defendant responds to the third-party complaint in the same manner as if it were an original complaint. Magis. Ct. R. 2-301(D); Metro. Ct. R. 3-301(D).
4. If a defendant fails to file a third-party complaint, he or she has not waived or forfeited any rights or claims. Magis. Ct. R. 2-301(B); Metro. Ct. R. 3-301(B).
5. One form of third-party complaint that may be filed is a cross-complaint between defendants. This type of complaint usually seeks to establish that if the plaintiff prevails, one defendant should indemnify another. Cross-complaints proceed just as third-party complaints proceed under this section.

D. Interpleader (Magis. Ct. R. 2-301(E); Metro. Ct. R. 3-301(E); Forms 4-205 (Interpleader Complaint) and 4-308 (Interpleader Answer))

1. An interpleader is a method of joining parties. Interpleader is used by a person who does not know to which of several claimants he is liable. It permits such a person to bring the several claimants of money into a single action and requires them to litigate their claim to the money.
2. A defendant exposed to similar liability for funds may adjudicate the right to funds by a third-party complaint, cross-claim or counterclaim. Magis. Ct. R. 2-301(E); Metro. Ct. R. 3-301(E). Any person who is named as a defendant pursuant to this cited rule shall file an answer on or before the appearance date stated on the summons. The answer shall set forth the facts and circumstances giving rise to such a person's claim and why such a person is entitled to the funds owed by the plaintiff. The disposition of the proceedings shall be binding upon all parties to the action upon whom service has been made.

E. Filing of Answer (Magis. Ct. R. 2-202; Metro. Ct. R. 3-202)

1. The defendant must file a written answer on or before the appearance date stated in the summons (within twenty (20) days).
2. If service is made by mail, three (3) days are added to the 20-day deadline for filing of an Answer. If after 23 days the defendant has not answered, personal service must be made. The court is required to charge the defendant for the cost of personal service unless the defendant can show good cause why an answer was not filed.
3. Defenses must be stated in the answer. Magis. Ct. R. 2-104(B) and 6-104(B); Metro. Ct. R. 3-104(B) and 7-104(B).
4. If more than one defendant is named in the complaint, joint or separate answers may be filed.

F. Jury Demand by Defendant

1. The right to trial by jury exists in all civil cases in the Metropolitan and Magistrate courts except in an action for contempt. Sections 34-8A-5, 35-8-1, and 35-8-2; Magis. Ct. R. 2-602(B); Metro. Ct. R. 3-602(B).
2. A defendant’s jury demand is made in the answer.
3. At the time the answer is filed, the court clerk collects the jury fee and jury deposit. Sections 34-8A-5, 35-6-1, 35-603, and 35-8-7(C). No jury fee is collected if the State of New Mexico is the party requesting the jury.
4. The defendant waives the right to trial by jury if:
   a. demand is not made in the answer, or
   b. the jury fee and costs are not paid at the time demand is made. Magis. Ct. R. 2-602(C); Metro. Ct. R. 3-602(C).

G. Clarifying or Amending Complaint or Answer

1. A party may file a motion to have the complaint or answer clarified. Magis. Ct. R. 2-304; Metro. Ct. R. 3-304; see also §1.2-1(B)(8) of this Benchbook for amendment of complaint.
2. The judge may require a more explicit complaint or answer or order a pretrial conference to clarify the issues. Magis. Ct. R. 2-302(B); Metro. Ct. R. 3-302(B).
3. Upon the defendant's request, the judge may permit the filing of an amended answer or the amending of an answer by interlineation. Magis. Ct. R. 2-304; Metro. Ct. R. 3-304.

H. Service of the Answer (Magis. Ct. R. 2-203; Metro. Ct. R. 3-203)

1. Unless the court orders otherwise, an answer or amended answer is served on each party.
2. When service is required upon a party represented by counsel, service may be by delivery or mailing of a copy to counsel.

I. Defenses (Magis. Ct. R. 2-302; Metro. Ct. R. 3-302)

1. The answer shall state defenses, such as the following:

   a. Reasons why the money is not owed or why the personal property should not be turned over to the plaintiff;

   b. Challenges to jurisdiction of the court over the subject matter of the plaintiff's claim or over the defendant, or a challenge to the venue of the court. See §1.1-1 of this Benchbook regarding jurisdiction. c. Insufficiency of process or service of process. See §1.2-4 of this Benchbook for service of process.

   d. Failure to state a claim upon which relief can be granted.

   e. Failure of plaintiff to be a real party in interest. See §1.2-5 of this Benchbook for discussion of “real party in interest.”

   f. Failure of plaintiff to join a necessary party. See §1.2-5 of this Benchbook for parties. Or

2. The defendant may also assert affirmative defenses such as:

   a. Accord and Satisfaction: The parties settled the claim for an amount less than the full amount of the claim. Smith Const. Co. v. Knights of Columbus Council No. 1226, 86 N.M. 50, 519 P.2d 286 (1974); see also UJI Civil 13-836.

   b. Arbitration and Award: The parties' claims have been arbitrated and an award made by agreement of the parties. Sections 44-7A-1 through –32; see also Dairyland Ins. Co. v. Rose, 92 N.M. 527, 591 P.2d 281 (1979).

   c. Assumption of Risk: Plaintiff may not recover for an injury when plaintiff voluntarily exposed himself or herself to a known and appreciated danger.

   d. Collateral Estoppel: Prior judgment between the same parties in a different cause of action precludes relitigation of the issue in the current action. State v. Bishop, 113 N.M. 732, 832 P.2d 793 (Ct. App. 1992) (“For collateral estoppel to apply the following elements must be present: (1) the party against whom collateral estoppel is asserted must be the same party or be in privity with the party to the original action; (2) the subject matter or the cause of action in the two suits must be different; (3) the ultimate facts or issues must have been actually litigated; and, (4) the issue must have been necessarily determined."); Svejcara v. Whitman, 82 N.M. 739, 487 P.2d 167 (Ct. App. 1971).

   e. Comparative Negligence: If two or more persons were negligent and each may be entitled to damages, a defendant may be able to reduce his or her liability proportionately to the degree of the others' fault. See UJI Civil 13-228 to 13-2221 (comparative negligence verdict forms); UJI Civil 13-1427 (comparative negligence defense); Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981); Bartlett v. New Mexico Welding Supply Inc., 98 N.M. 152, 646 P.2d 579 (Ct. App. 1982). Under New Mexico law, if two or more persons are negligent, each person is liable for damages apportioned on the basis of the percentage of each tortfeasor’s fault to the total fault attributed to all persons. Section 41-3A-1(C) (exceptions exist for intentional torts, vicarious liability, products liability cases, and other situations “having a sound basis in public policy.” Joint and several liability applies to these exceptions. See Saiz v. Belen School Dist., 113 N.M. 387, 827 P.2d 102 (1992).

   f. Discharge in Bankruptcy: The plaintiff has been discharged as bankrupt by the bankruptcy court.

   g. Duress: The defendant entered into the agreement under the coercion or other wrongful act of the plaintiff. Pecos Const. Co. v. Mortgage Inv. Co. of El Paso, 80 N.M. 680, 459 P.2d 842 (1969).

   h. Failure of Consideration: Plaintiff gave nothing for the agreement that he or she was not already obligated to give.

   i. Failure to State a Claim for which Relief can be Granted: Facts pleaded would not establish a cause of action entitling the plaintiff to recover against the defendant. Noriega v. Stahmann Farms, 113 N.M. 441, 827 P.2d 156 (Ct. App. 1992)(“A motion to dismiss for failure to state a claim should be granted only if it appears that plaintiff cannot recover, or be entitled to relief, under any state of facts provable under the complaint.”).

   j. Fraud: Plaintiff acted fraudulently. Archuleta v. Kopp, 90 N.M. 273, 562 P.2d 834 (Ct. App. 1977).

   k. Illegality: Plaintiff acted illegally as a matter of law.

   l. Release: The parties have entered into an agreement whereby the plaintiff has released the defendant from liability for the plaintiff's claim. See Vidal v. American Gen. Cos., 109 N.M. 320, 785 P.2d 231 (1990).

   m. Res Judicata: Plaintiff has sued defendant in another case in the same or a different court upon the same claim and a judgment in favor of the defendant has been entered. Miller v. Miller 83 N.M. 230, 490 P.2d 672 (1971); see e.g., UJI Civil 13-835 (illegality; enforceability of contract).

   n. Statute of Limitations: Plaintiff failed to bring a cause of action within statutorily required time limits.

   o. Sudden Emergency: Defendant acted with reasonable care in a situation of sudden and unexpected peril. Williams v. Cobb, 90 N.M. 638, 567 P.2d 487 (Ct. App. 1977); Montoya v. Winchell, 69 N.M. 177, 364 P.2d 1041 (1961).

3. The defendant may raise a challenge of lack of subject matter jurisdiction at any time. See §1.1-1 of this Benchbook regarding jurisdiction.
4. The court-approved answer form may be modified by the defendant to include defenses other than those stated in the form.

J. Default (Magis. Ct. R. 2-702; Metro. Ct. R. 3-602 and 3-702; Civil Form 4-702: Motion for Default Judgment; and §1.3-2 of this Benchbook regarding default judgments)

1. The judge may enter a default judgment for the plaintiff:

   a. if the defendant has not filed an answer within 20 days after being served with the summons, or 23 days if served by mail and notice of receipt has been returned; and

   b. if the plaintiff proves, by an appropriate return (proof of service), that proper service of the summons was made on the defendant. Magis. Ct. R. 2-202; Metro. Ct. R. 3-202; see also §1.2-2(C), (D), & (E) of Benchbook regarding service of process and return.

2. The judge may require evidence about any fact before entering a default judgment and must make sure the plaintiff has a valid claim. Magis. Ct. R. 2-702(A); Metro. Ct. R. 3-702(A).
3. The judge may enter a default judgment upon the oral or written request of the plaintiff.
4. The court may set aside a default judgment for good cause shown by the defendant within thirty (30) days after entry of judgment if no appeal has been made to district court. Magis. Ct. R. 2-702(C); Metro. Ct. R. 3-702(C).