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

1.3-1 Judgments

A. Definition

1. A judgment is a decree or any order from which an appeal lies. Magis. Ct. R. 2-701; Metro. Ct. R. 3-701; Civil Form 4-701 (Judgment). It is the official decision of the court regarding the rights and claims of the parties to a suit.
2. The judgment contains the court's findings for or against the parties and the amount of damages awarded, costs, attorney fees when authorized, and interest when allowed. The judgment should not contain a recital of pleadings or the records of prior proceedings.

B. Entry of Judgment (Magis. Ct. R. 2-701(C); Metro. Ct. R. 3-701(C); Civil Form 4-701 (Judgment))

1. The written judgment is normally prepared at the end of trial; it is not effective until it has been entered.
2. The court may direct an attorney for any party to prepare the judgment, to be approved and signed by the judge.
3. If any setoff or counterclaim is established by the defendant, that amount should be offset against any sum owed the plaintiff and the judgment entered accordingly.
4. The judgment form should be modified to comply with the decree.
5. The original judgment form is filed.
6. A copy of the judgment is given to each party at the end of trial or is mailed to each party by the judge or clerk; the date of mailing is entered on the original of the judgment.

C. Multiple Claims or Multiple Parties (Magis. Ct. R. 2-701(B); Metro. Ct. R. 3-701(B))

1. A judgment that does not dispose of all claims or all parties should clearly state what issues or parties are remaining.
2. When more than one claim is presented in a case, either as a direct claim or as a counterclaim, the court may enter a final judgment on fewer than all of the claims only if the court expressly determines that there is no just reason for delay. Without this determination, any order that adjudicates fewer than all of the claims does not end the case, and the order may be revised at any time before the final entry of judgment.
3. When multiple parties are involved, the court may enter a judgment adjudicating all of the issues as to one or more, but fewer than all, of the parties. This judgment will be final unless the court in its discretion expressly states otherwise in the judgment. If the judgment states that it is not final, it does not end the case as to the party and may be revised at any time before the final entry of judgment.

D. Damages

1. The amount of damages is part of the verdict in jury trials and is included in the court's decision in non jury trials.
2. A judgment by default may not differ in kind from or exceed the amounts prayed for sought in the demand for judgment. Magis. Ct. R. 2-702; Metro. Ct. R. 3-702; Civil Forms 4-702 (Motion for Default Judgment) and 4-703 (Default Judgment).
3. Every other final judgment shall grant the relief to which the prevailing party is entitled even if the party has not demanded such relief in the pleading. Magis. Ct. R. 2-701(D); Metro. Ct. R. 3-701(D).
4. In a case involving multiple debtors or tortfeasors, the court may find each defendant liable for the full amount claimed by the plaintiff.

   a. If this occurs, the plaintiff may either collect the full amount of the judgment from any one of the judgment debtors, or collect a portion from each of the judgment debtors. The plaintiff may not collect more than the total amount of the judgment.

   b. Liability for the full amount does not apply if an agreement specifically apportioned liability among the debtors.

E. Interest to Date (Section 56-8-4)

1. In certain situations, interest may be recovered by the prevailing party against the losing party.
2. The interest, when allowed, is computed on the amount of the debt that the prevailing party is entitled to recover as damages under the judgment.
3. Interest is an element of damages to be considered by the court. Section 56-8-4; Kennedy v. Moutray, 91 N.M. 205 (1977); see also Appendix B of this Benchbook for interest tables. As such, the court will determine whether to award interest, if it is allowed or required, and will determine the date from which to compute the interest if not specifically established by statute. Generally the state and its political subdivisions are exempt from paying interest on judgments.
4. The interest that accrues before entry of the judgment is calculated up to and including the date of entry of the judgment.
5. In the absence of a written instrument fixing a different rate of interest, the rate of interest in the following situations is fifteen percent (15%) annually. The earliest date from which the court may compute interest is indicated below:

   a. On money due by contract, interest is computed from the date of default on the payment (that is, the date when payment was due). American Inst. of Mktg. Sys., Inc. v. Keith, 82 N.M. 699 (1971); O’Meara v. Commercial Ins., 71 N.M. 145 (1962).

   b. On installment payment contracts, from the date the last payment was actually made if interest was fully paid to that date.

   c. On money due upon the settlement of matured accounts, from the date the balance is ascertained. Section 56-8-3(C).

   d. On money due upon an open account, 30 days after the date of delivery of the last article or service. Section 56-8-5.

   e. On judgments for the payment of money, from the date of entry of the judgment. Varney v. Taylor, 81 N.M. 87, 463 P.2d 511 (1969).

   f. On damage to persons or property arising out of a willful tort or negligence, from the date the damage occurred. DePalma v. Weinman, 15 N.M. 68 (1909).

6. If there is a written contract, the rate of interest for judgment is the same as the rate in the contract. Section 56-8-4. The rate must be stated in the judgment if the contract specifies an interest rate other than fifteen percent (15%). Interest is calculated from the date of default on payment.
7. The court in its discretion, where interest would not otherwise be allowed, may allow interest of up to ten percent from the date the complaint is served upon the defendant, after considering whether:

   a. the plaintiff was the cause of unreasonable delay in the adjudication of the plaintiff's claim, and

   b. the defendant had previously made a reasonable and timely offer of settlement to the plaintiff. Section 56-8-4.

8. If the interest period is exactly one year and if the fifteen percent (15%) interest rate is used, the amount on which interest is to be computed is multiplied by .15 and the result is the interest amount. However, the interest period is rarely exactly one year. To determine the amount of interest owed for a period less than one year, use the interest tables included in Appendix B of this Benchbook.

F. Costs to be Reimbursed (Taxing Costs)

1. The prevailing party may be reimbursed by the losing party for certain court costs incurred up to the time of entry of judgment, provided the court has not determined the losing party to be indigent using the standard approved by the Supreme Court. Magis. Ct. R. 2-701(D); Metro. Ct. R. 3-701(E); Sections 35-6-1 and 35-6-3; see also §1.6-1 of this Benchbook regarding court costs and attorney fees allowed under the Uniform Owner Resident Relations Act.

   a. No costs or fees can be taxed against the state, its officers and agencies. Magis. Ct. R. 2-701(E); Metro. Ct. R. 3-701(E).

   b. There is only one prevailing party for purposes of taxing court costs. This is true even if the court awards judgment on the complaint and grants the defendant a setoff. Regarding the awarding of costs, the prevailing party is the party in whose favor judgment is rendered whether or not the party prevails in all aspects of the action.

   c. No person appointed guardian ad litem for a minor or incapacitated person shall be personally liable for the costs of the suit, unless charged by the court for some personal misconduct in the case. Section 38-4-17; see also §1.2-5 of this Benchbook regarding guardians ad litem.

2. The prevailing party submits to the court a written list of all costs for which the party seeks reimbursement.
3. The court may:

   a. grant the entire amount requested;

   b. reduce the amount to be paid for a specific expenditure if the amount requested is excessive; and/or

   c. disallow certain costs if they are inappropriate.

4. The total cost to be reimbursed is entered on the judgment form.
5. The following are among the court costs that the prevailing party may recover against the losing party.

   a. Docket fee.

   b. Jury fees.

   c. Copying of papers at court.

   d. Service of process fees for service of summons, subpoenas and other documents. See §1.3-1(F)(6) below regarding sheriff’s fees.

   e. Mileage (25 cents per mile) and per diem for not more than four witnesses unless, in the court's discretion, payment for additional witnesses is determined to be necessary. Sections 10-8-1 through 10-8-8, 38-6-4, and 39-2-9. Per diem costs cannot be prorated. Sections 35-6-1 and 35-6-4(A).

   f. Expert witness fee up to $500 maximum, in addition to mileage and per diem. Magis. Ct. R. 2-701(E); Metro. Ct. R. 3-701(E).

   g. Sheriff's fee for the expense of keeping levied property and for conducting sheriff's sale.

   h. Fees for storage and necessary care for property held under the control of the court pending trial.

6. The following sheriff's fees for service are established by law and are taxable as court costs. See Section 4-41-16.

   a. Not more than $30.00 for serving each writ, order, subpoena or summons;

   b. Five dollars ($5.00) for taking and returning each bond required by law;

   c. Six dollars ($6.00) for levying execution and return of execution;

   d. Two dollars ($2.00) for making each return of process, order or summons;

   e. Commissions for receiving or paying monies on executions where lands, goods or chattels have been levied upon, advertised and sold:

   i. four percent (4%) on the first $500;

   ii. two percent (2%) on amounts over $500;

   iii. actual expenses incurred in taking care of the goods or chattels levied, between the day of levy and the day of sale; or

iv. one half of the above commission, when the money has been paid without making levy or sale. Section 4-41-17.

f. Mileage for distance traveled to serve process if a private vehicle is used. Mileage is calculated at twenty-five cents per mile. Sections 4-41-19 and 10-8-4.

1. The jury costs are computed as follows:

   a. For each hour of service by each juror, the highest prevailing state minimum wage rate. Sections 35-8-7 and 50-4-22.

   b. For travel from place of residence to the courthouse (if more than fifteen miles round trip), 25 cents per mile. Sections 10-8-1 through 10-8-8.

2. Attorney fees are generally not allowed except:

   a. When permitted by statute. See, e.g., Sections 39-2-2.1 (attorney fees allowed in civil actions to recover on open accounts), 47-8-48 (attorney fees allowed in actions to enforce rental agreements under the Uniform Owner Resident Relations Act), 58-15-20 (attorney fees allowed in actions to collect loans covered by the N.M. Small Loan Act of 1955 when attorney has been hired in good faith to collect)

   b. when stated in a contract between the parties; or,

   c. in the discretion of the court, when the prevailing party is a collection agency represented by an attorney. Section 61-18A-26 (attorney fees and costs allowed in discretion of the court when collection agency appears as real party in interest). When awarding discretionary attorneys fees the court should consider the size of the claim, the extent of the disputed or contested issues, and whether a lawyer or party acted to enlarge or reduce the amount of lawyer time and effort required.

G. Satisfaction of Judgment

1. After the judgment is entered, and upon filing of a motion for an order declaring the judgment to be satisfied and notice to the opposing party, the court may set a hearing to determine if the judgment has been satisfied, released or discharged. Magis. Ct. R. 2-703(C); Metro. Ct. R. 3-704(C); Civil Form 4-706 (Satisfaction and Judgment). If a magistrate court judgment is docketed in the district court for issuance of a transcript of judgment, the motion is filed in the district court. Magis. Ct. Rules 2-703(D) and 2-804(E).
2. Satisfaction of judgment has the effect of stopping enforcement or execution of judgment.
3. The court may enter an order showing the judgment has been satisfied upon the filing of a:

   a. Satisfaction of judgment form filed by the plaintiff (or by the defendant if judgment on a counterclaim has been awarded to the defendant). Civil Form 4-706 (Satisfaction of Judgment); or

   b. Motion to vacate the judgment on grounds that the judgment has been satisfied, released, discharged or vacated. Magis. Ct. R. 2-703(B)(4); Metro. Ct. R. 3-704(B)(4).

4. The motion is served upon the judgment creditor in the manner prescribed by Rule 3 202 for service of a summons and complaint. A hearing on the motion is held with notice of the hearing mailed to the parties by the court. If a judgment creditor fails to appear at such hearing a default satisfaction of judgment may be entered upon the filing of a return of service or an affidavit that after "diligent search" the judgment creditor could not be located. Magis. Ct. R. 2-703(C); Metro. Ct. R. 3-704(C).

   a. A party has made a diligent search if the judgment creditor no longer has a business or residence at the last known address shown in the court file and the judgment creditor could not be located through a search of telephone and city directories in each county where the judgment creditor was known to have resided or maintained a place of business in this state. Magis. Ct. R. 2-703(C); Metro. Ct. R. 3-704(C).

   b. A "diligent search" may include other circumstances and is not limited to the above occurrences.

5. Generally, the court must ascertain if the judgment debtor was reasonably diligent in attempting to locate the judgment creditor considering the facts of the case.
6. Reasonable diligence is such action as an individual of ordinary prudence would undertake under the circumstances in order to be successful. Fulton v. Cornelius, 107 N.M. 362 (Ct. App. 1988).
7. In any proceeding that is to be accorded finality, due process requires that notice must be given which is reasonably calculated, under all of the circumstances to apprise interested parties of the pendency of the action and to afford them an opportunity to present their objections. Production Credit Assoc. v. Williamson, 107 N.M. 212 (1988).
8. Full Satisfaction:

   a. If the judgment creditor cannot be found after a diligent search, the judgment debtor may satisfy the final judgment by paying into the court registry the full amount of the judgment, plus interest to the date of payment, any post-judgment costs incurred by the judgment creditor that can be determined from the court record, and the court costs for receiving into and paying the money out of the court registry. Section 39-1-6.2. Upon such payment, the clerk, or the judge if there is no clerk, shall issue a receipt to the judgment debtor, shall enter a satisfaction of such judgment in the record, and shall formally notify the judgment creditor of such judgment, if known. If requested, the court shall pay over to the judgment creditor, or to his order, the full amount of the judgment, costs and interest collected.

   b. Payment in full satisfaction of a judgment in Magistrate Court must be made by a cashier's check or money order payable to the Administration Office of the Courts. Such funds may be dispensed to the judgment creditor upon a claim made within one (1) year of the judgment being satisfied. Magis. Ct. R. 2-703(C); see also §§39-1-6.2 and 7-8A-1 through -31 (The Uniform Disposition of Unclaimed Property Act).

9. Partial Satisfaction: If the satisfaction of judgment shows that a partial satisfaction has been made, the judgment is executed only with respect to the amount remaining due.

H. Relief from Judgment: Clerical Mistake

1. The court may relieve a party from judgment if clerical mistakes or errors arising from oversight or omission affect the judgment. Magis. Ct. R. 2-703(A); Metro. Ct. R. 3-704(A).
2. Any party may request a correction or the court may initiate the relief from judgment.
3. The court may require notice to the parties and may also require a hearing before the correction is made.
4. Depending on the nature of the clerical mistake or error, normally the judge:

   a. writes on the original judgment that the judgment is being vacated, notes the mistake, indicates that he or she will enter a new judgment and signs and dates the order;

   b. corrects the mistake or error; and

   c. enters a new judgment, or if appropriate, holds such further proceedings as may be necessary. See Civil Form 4-701 (Judgment).

I. Relief from Judgment: Void Judgment

1. After judgment has been entered, the judge may relieve the party or the party's legal representative from the judgment by declaring the judgment void. Magis. Ct. R. 2-703; Metro. Ct. R. 3-704. The judgment may be declared void if it is determined that:

   a. the court lacked jurisdiction over the parties or the subject matter;

   b. although a default judgment was entered, there was failure to make proper service of process upon the opposing party;

   c. mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation or other misconduct of an adverse party occurred in procuring the judgment. Magis. Ct. R. 2-703; Metro. Ct. R. 3-704.

   i. Relief from judgment on any of the grounds listed in paragraph 1(c) is granted only upon motion of a party and only insofar as necessary to achieve a just result.

   ii. A motion based upon these grounds shall be filed not more than one (1) year after the judgment, order or proceeding was taken.

iii. this motion does not affect the finality of a judgment or suspend its operation.

2. The party seeking relief from judgment must make application to the court by filing a written motion; a copy of the motion must be served on the opposing party as is provided for service of pleadings and other papers. Magis. Ct. R. 2-203; Metro. Ct. R. 3-203.
3. Upon request of either party, the court shall conduct a hearing on the motion to void the judgment.
4. If the court grants relief from judgment because the judgment is void, the judge writes "void" on the court's copy of the judgment and also enters the reason, the date, and his or her signature.
5. An order granting or denying relief from a final judgment may be appealed to the district court in the same manner as other appeals from final judgments are taken.