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

1.2-5 Parties

A. Who May Sue Real Party in Interest (Magis. Ct. R. 2-401; Metro. Ct. R. 3-401)

1. Except as provided in subsections A(7) and (8) below, the plaintiff must be the real party in interest; the real party in interest is the party for whose benefit the action is brought.
2. A party is the real party in interest if:

   a. the party is an owner or assignee or agent of the owner of the right to be enforced; and

   b. the party is in a position to discharge the defendant from liability for the claim upon which the action is grounded. Marchman v. NCNB Tex. Nat’l Bank, 120 N.M. 74, 81, 898 P.2d 709, 716 (1995); Edwards v. Mesch, 107 N.M. 704, 706, 763 P.2d 1169, 1171 (1988); L.R. Property Mgmt., Inc. v. Grebe, 96 N.M. 22, 627 P.2d 864 (1981).

3. Either the husband or the wife may represent their joint interests in a marital community with respect to community property. Community property is defined as property:

   a. owned in common by the husband and wife;

   b. acquired during the marriage unless specifically titled as separate property; or

   c. acquired separately by gift or inheritance. Section 40 3 8 (property acquired by a husband and wife as tenants in common or as joint tenants or otherwise is presumed to be held as community property); see also Norris v. Saueressig, 104 N.M. 76, 717 P.2d 52 (1986); Stroshine v. Stroshine, 98 N.M. 742, 652 P.2d 1193 (1982).

4. A collection agency acts as an agent for the real party in interest and may pursue the rights of the real party in interest to the extent provided by state or court rules. State ex rel. Norvell vs. Credit Bureau of Albuquerque, 85 N.M. 521, 514 P.2d 40 (1973); see also Kolker v. Duke City Collection Agency, 750 F.Supp. 468 (D N.M. 1990); Magis. Ct. R. 2-107(D) and Metro. Ct. R. 3-107(D).
5. The person to whom a thing in an action has been assigned or sold is the real party in interest. Prior v. Rio Grande Irrigation & Colonization Co., 10 N.M. 711, 65 P. 171 (1901); Magis. Ct. R. 2-401(A); Metro. Ct. R. 3-401(A).
6. The following may sue on their own names for the party with whom or in whose benefit the action has been brought:

   a. executor;

   b. administrator;

   c. guardian;

   d. trustee of an express trust;

   e. party with whom or in whose name a contract has been made for the benefit of another, including collection agencies; or

   f. a party authorized by statute to sue in his or her own name without joining the party for whose benefit the action is brought. Magis. Ct. R. 2-401(A); Metro. Ct. R. 3-401(A); for collection agencies, see Magis. Ct. R. 2-107(D) and Metro. Ct. R. 3-107(D).

7. The defendant may raise in the answer or by motion that the action has not been brought on behalf of the proper party; the issue is determined by the court and the court may require amendment of the pleadings or dismiss the action if it appears that it will not be possible to bring all indispensable parties before the court.
8. An action for the use or benefit of another is brought in the name of the State of New Mexico when a statute of the State so provides. Magis. Ct. R. 2-401(A); Metro. Ct. R. 3-401(A).

B. Minors and Incapacitated Persons

1. A minor is a person under the age of 18 years. Section 28-6-1. An "incapacitated person" means any person who demonstrates over time either partial or complete functional impairment by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent that the person is unable to manage his personal care or is unable to manage his property and financial affairs. Section 38-4-14 (defining incapacity for purposes of the probate code).
2. A general guardian or other person acting in a representative capacity may sue or be sued on behalf of a minor or incapacitated person. Magis. Ct. R. 2-401(C); Metro. Ct. R. 3-401(C).
3. If the minor or incapacitated person has no guardian or other person acting in a representative capacity, the court shall appoint a guardian ad litem solely for the purpose of suing or being sued on behalf of the minor or incapacitated person. Magis. Ct. R. 2-401(C); Metro. Ct. R. 3-401(C).
4. A married minor may sue or be sued without a guardian only if the minor is suing his or her spouse. Section 38-4-7.
5. The court may appoint a guardian ad litem to defend a lawsuit against a minor:

   a. upon motion by the minor 14 years of age or older;

   b. upon motion by a relative or friend of a minor under the age of 14 years; or

   c. upon the written consent of any competent person who is proposed as a guardian ad litem. Section 38-4-10.

6. The court appoints a guardian ad litem to defend a lawsuit against an incapacitated person:

   a. upon motion by a relative or friend of the incapacitated person, or

   b. upon the motion by any other party to the action or upon order of the court if a written motion by a relative or friend is not filed within 20 days after the summons is served and before the answer is filed. Section 38-4-15.

7. When a guardian ad litem is appointed, the court issues a written order containing the name of the guardian, the name of the minor or incapacitated person, and the title of the case. Magis. Ct. R. 2-401(C); Metro. Ct. R. 3-401(C).
8. A guardian ad litem is not personally responsible for court costs assessed against the losing party, unless the person is charged by the court for personal misconduct. Sections 38-4-12 & -17. Compare §38-4-9 (guardian of a minor who initiates or prosecutes a suit is responsible for the costs of the litigation unless the court finds the minor to be indigent).

C. Death or Incapacity; Transfer of Interest (Magis. Ct. R. 2-403(A); Metro. Ct. R. 3-403(A))

1. The judge may order substitution of parties if a party dies or becomes incapacitated or if there is a transfer of interest, such as, an assignment or sale.
2. The order may be issued with or without a motion to substitute.

D. Joinder of Parties

1. Joinder of parties is the uniting of two or more persons, each of whom is subject to the jurisdiction of the court, as co plaintiffs or co defendants in one suit.
2. Parties may join or be joined if a right to relief is asserted on their behalf or against them arising out of the same transaction or occurrence and containing a common question of law or fact. Magis. Ct. R. 2-301; Metro. Ct. R. 3-301.
3. Occasionally, it may be necessary to join two or more parties if the interests of the parties will necessarily be affected by the judgment so that complete and final justice cannot be done between the parties without affecting those rights. For example, two persons may have an interest in property that is the subject of the action or garnishment proceeding. Jemko, Inc. v. Liaghat, 106 N.M. 50, 738 P.2d 922 (Ct. App. 1997); American Gen. Cos. v. Jaramillo, 88 N.M. 182, 538 P.2d 1204 (Ct. App. 1975).
4. Joinder of parties is normally accomplished by naming the additional parties in the complaint.
5. The court may allow joinder by amended complaint if, by reason of mistake, the action was not brought in the name of the proper party. Magis. Ct. R. 2-401(A); Metro. Ct. R. 3-401(A).

E. Pro Se and Attorney Appearance (Magis. Ct. R. 2-107(A); Metro. Ct. R. 3-107(A))

1. A party in a civil action may appear, prosecute, defend and appeal without attorney representation if:

   a. the party is an individual plaintiff or defendant; or

   b. the claim is by or against a marital community, in which case one spouse may appear for both.

F. Other Authorized Appearances

1. A party to any civil action may appear, prosecute and defend any proceeding:

   a. If the party is brought into the suit by writ of garnishment or attachment, and such party is a partnership, by one of its general partners. Magis. Ct. R. 2-107(B); Metro. Ct. R. 3-107(B).

   b. If the party is brought into the suit by writ of garnishment or attachment and such party is a corporation, by an officer, director, or general manager of the corporation upon the filing of a notarized certificate to so act on behalf of the corporation. Magis. Ct. R. 2-107(B); Metro. Ct. R. 3-107(B).

   c. If the action is brought pursuant to the provisions of the Uniform Owner Resident Relations Act or the Mobile Home Park Act and the appearance is by:

   (i) the "owner," as defined by the provisions of the Uniform Owner Resident Relations Act;

   (ii) a "landlord," as defined in the Mobile Home Park Act;

   (iii) the person authorized to manage the premises; or

(iv) a licensed real estate agent authorized by the owner of the property. Magis. Ct. R. 2-107; Metro. Ct. R. 3-107; see also §§47-8-1 through -51 (the Uniform Owner Resident Relations Act).

d. If the party is a corporation whose voting shares are held by a single shareholder or closely knit group of shareholders all of whom are natural persons active in the conduct of the business and the appearance is by an officer or general manager who has been authorized to appear on behalf of the corporation.

e. If the party is a general partnership that meets all of the following qualifications:

(i) the partnership has less than ten partners, whether limited or general, except that a husband and wife are treated as one partner for this purpose;

(ii) all partners, whether limited or general, are natural persons; and

(iii) the appearance is by a general partner who has been authorized to appear by the general partners.

f. If the party is a governmental entity and the appearance is by an employee of the governmental entity authorized by the entity to institute or cause to be instituted an action on behalf of the governmental entity. Magis. Ct. R. 2-107(B); Metro. Ct. R. 3-107(B).

g. If the party is a wage claimant, the director of the labor and industrial division of the Labor Department, as assignee, or the director's designee, may appear on behalf of the wage claimant pursuant to Sections 50-4-11 & -12.

G. Attorney Appearance (Magis. Ct. R. 2-107(C) and 3-107(C))

1. A party may appear, prosecute, defend and appeal any proceeding by an attorney.
2. Whenever an attorney undertakes to represent a party, the attorney shall file a written entry of appearance showing the attorney's name, address, and telephone number. The filing of any pleading signed by counsel constitutes an entry of appearance provided that pleading includes the attorney's address and telephone number.
3. A collection agency may not appear pro se in the court. Magis. Ct. R. 2-107(D); Metro. Ct. R. 3-107(D). A collection agency must be represented by a licensed attorney in all civil proceedings. A collection agency may take assignments of claims as real parties in interest provided the collection agency is represented by a licensed attorney in all civil proceedings.

H. Withdrawal or Attorney Failure to Act (Magis. Ct. R. 2-108; Metro. Ct. R. 3-108)

1. Any attorney or firm who has appeared in a cause may withdraw with written consent of the court. Such consent may be conditioned upon substitution of other counsel or the filing by a party of an address at which service may be made upon him. Notice of withdrawal or substitution of counsel shall be given to all parties either by the withdrawing party or substituting counsel and proof of service filed with the clerk.
2. If an attorney ceases to act in a cause for a reason other than withdrawal or consent, upon motion of any party, the court may require the taking of such steps as may be advised to insure that the cause will proceed with promptness and dispatch.