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

1.4-2 Garnishment

A. Definitions; General (Sections 35-12-1 through -19)

1. Garnishment is the process of levying on the property of the judgment debtor when the property is in the hands of a third person.
2. Commonly, the property garnished consists of:

   a. income earned but not yet paid by the debtor's employer;

   b. bank deposits; or

   c. personal property of the judgment debtor that is held by a third party.

3. Although garnishment is normally sought by the plaintiff, it is available to any judgment creditor, including a defendant or intervening party who prevailed on a counterclaim, cross-claim or claim in intervention.
4. All laws and procedures governing Magistrate Courts and Metropolitan Court apply to garnishment proceedings, except as otherwise provided by law. Section 35-12-15.

B. Types of Garnishments
There are several types of garnishments:

1. garnishment in advance of judgment;
2. garnishment in aid of execution of judgment;
3. garnishment in aid of execution of judgment entered in another court.

C. Garnishment in Advance of Judgment (Section 35-12-1; but see §1.5-1 of this Benchbook regarding attachment)

1. Courts of limited jurisdiction currently have jurisdiction to issue writs of garnishment before judgment. However, because of the questionable constitutionality of this practice, it is advisable to issue such writs cautiously.
2. Garnishment in advance of judgment is initiated by the plaintiff by filing a civil complaint as in other civil actions. Section 35-12-1. Garnishment in advance of judgment is a separate proceeding from the underlying civil action.
3. The complaint must be accompanied by a bond in an amount double that claimed in the complaint. Sections 35-12-1(A)(1) and 35-12-17 (written bond form).

   a. The plaintiff must execute the bond (or some responsible person as principal) and two or more sureties. Sections 42-9-7 and 42-9-9.

   b. The sureties, if individuals, must be residents of the State; bond companies must be licensed to sell surety bonds by the State Superintendent of Insurance. Sections 42-9-7 and 42-9-9.

4. The plaintiff must also agree to diligently prosecute the action to final judgment without delay and to pay the defendant all damages and costs sustained from the garnishment if the plaintiff receives no judgment against the defendant. Section 35-12-1(A)(1).
5. The complaint must also be accompanied by an affidavit of the plaintiff stating one or more of the following to be true:

   a. The defendant has no property in his or her possession within the state subject to execution to satisfy the amount claimed in the complaint;

   b. The defendant is not a resident of the State;

   c. The defendant has concealed himself or herself or left his or her usual place of abode in this State so that ordinary civil process cannot be carried out;

   d. The defendant is about to remove his or her personal property out of the State or has fraudulently concealed or disposed of such property in order to defraud, hinder or delay creditors;

   e. The defendant is about to convey fraudulently or assign, conceal or dispose of real property in order to hinder or delay creditors;

   f. The debt that is the subject of the action was contracted out of this state, and the defendant has secretly removed his or her property into this state with the intent to hinder, delay or defraud creditors;

   g. The defendant is a corporation whose principal office or place of business is out of the State, and the corporation has not designated an agent in this State for service of process against the corporation;

   h. The defendant fraudulently contracted the debt or incurred the obligation which is the subject of the action or obtained credit from the plaintiff by false pretenses; and or

   i. The debt which is the subject of the action is for labor, for any services rendered by the plaintiff or his or her assignor at the instance of the defendant or was contracted for the necessities of life. Sections 35-12-1(A) and (D) and 35-9-1(A)(2).

6. In addition to one or more of the above, the affidavit must include a statement that plaintiff believes one of the following to be true:

   a. That the garnishee is indebted to the defendant and that the debt is not exempt from garnishment; or

   b. That the garnishee holds personal property belonging to the defendant. Section 35-12-1.

7. After the civil complaint, affidavit, and bond, approved by the court, have been filed, the judge may issue a writ of garnishment. Section 35-3-3; see also §§1.4-2(D) & (E) of this Benchbook (regarding writ of garnishment and answer). The amount of the writ may not exceed $10,000.
8. Service of a writ of garnishment issued in advance of judgment does not attach any wages or salary due the defendant from the garnishee, but does attach any other personal property, rights, credits, bonds, bills, notes, drafts and other choses in action. Section 35-12-3(A) & (B).
9. The writ of garnishment is served on the garnishee in the manner provided for service of a civil summons. Section 35-12-2; Magis. Ct. R. 2-802(B); Metro. Ct. R. 3-802(B); see also Magis. Ct. R. 2-801 and Metro. Ct. R. 3-801 (regarding service of claim of exemption).

   a. A copy of the writ and answer form are served on the garnishee.

   b. The return by the sheriff or other person is completed on the original writ and filed with the court.

10. Copies of the writ must be served on all parties as provided for service of pleadings and other papers. Magis. Ct. R. 2-203(A); Metro. Ct. R. 3-203(A).
11. The garnishee must file the answer within 20 days from the date the writ is served. Section 35-12-4; Magis. Ct. R. 2-802; Metro. Ct. R. 3-802. A copy of the answer must be served on all parties.
12. Certain exemptions from garnishment are allowed by law if the judgment debtor files a timely claim of exemption. See Civil Form 4-809 (Claim of Exemption from Garnishment); §35 12 7(A); §1.4 1(C) of this Benchbook regarding exemptions.
13. Additional exemptions may apply under state and federal laws, such as Section 52 1 52, which exempts worker's compensation benefits from garnishment or execution.
14. The exemptions set forth in Sections 42 10 1 through 42 10 6 do not apply to garnishments. See Section 42 10 7.
15. At any time before judgment in the original action, the defendant may obtain a dissolution of the garnishment by filing a bond to the plaintiff in double the sum claimed in the complaint, or double the value of the indebtedness and personal property garnished, whichever is less, with sufficient sureties, conditioned for the payment of any judgment that may be rendered against the garnishee in the action. Section 35-12-13. When a garnishment is dissolved, all proceedings touching the garnished indebtedness or personal property are vacated.
16. Execution of a judgment against the garnishee is the same as in other civil actions. Section 35-12-11; see also §1.4-2(F) of this Benchbook regarding judgments against the garnishee.

D. Garnishment in Aid of Execution of Judgment (Sections 35-12-1(B) and (D); Magis. Ct. R. 2-802; Metro. Ct. R. 3-802)

1. After the court has entered its judgment, the prevailing party may file an application for a writ of garnishment, which must include the date and amount of the judgment and the judgment debtor's last known address.
2. The application must state that:

   a. after diligent inquiry to the best of the judgment creditor's knowledge, the judgment debtor has insufficient property in his or her possession within the state subject to execution to satisfy the judgment;

   b. the named garnishee is believed to be indebted to the defendant or holds personal property belonging to the judgment debtor; and

   c. the debt is not exempt from garnishment. Civil Form 4-805 (Application for Writ of Garnishment).

3. The court shall issue a writ of garnishment if the prevailing party has filed the documents required for garnishment.
4. The judgment creditor must serve the following documents on the garnishee, in the usual manner for service of a complaint and summons:

   a. application for the writ of garnishment;

   b. writ of garnishment;

   c. notice of right to claim exemptions; and

   d. claim of exemption form. See Civil Forms 4-805 (Application for Writ of Garnishment), 4-806 (Writ of Garnishment), 4-807 (Answer by Garnishee), 4-808 (Notice of Right to Claim Exemptions), and 4-809 (Claim of Exemption from Garnishment).

   The last two forms are not served if the claim is for wages.

5. The court may not enter judgment against a garnishee unless the judgment creditor has certified compliance with the requirements above. Civil Form 4-812 (Judgment on Writ of Garnishment, Claim of Exemption and Order to Pay).
6. By the fourth business day following service of the writ, the garnishee must mail or otherwise deliver to each named judgment debtor or the attorney of record a copy of the forms served on the garnishee.
7. The garnishee must answer the writ of garnishment within twenty (20) days of service. If the garnishee answers as required by law, the court must award reasonable attorneys fees and costs to the garnishee. Section 35-12-16.
8. The garnishee may appear in person in any garnishment proceeding. If a partnership, the garnishee may appear by one of its general partners. If a corporation, the garnishee may appear by an officer, director or general manager or through an attorney. The court must award reasonable attorneys' fees and costs to the garnishee.
9. A judgment debtor who is a natural person may claim a statutory exemption from garnishment by filing a claim of exemption with the court no later than ten (10) days after service by the garnishee of notice of the right to claim exemptions. The judgment debtor must serve a copy of this form on the judgment creditor and the garnishee. If the judgment debtor fails to file a claim, he or she is deemed to have waived the right to claim a statutory exemption other than wages. A judgment debtor is entitled to receive an exemption from garnishment of wages to the extent provided by law.
10. Within ten (10) days of receiving service of a claim of exemption, the judgment creditor may dispute the claim by filing a notice of dispute and request for hearing, and serving this on the judgment debtor and the garnishee. The court may not enter judgment on the writ of garnishment until a hearing has been held. If the judgment creditor fails to file a notice of dispute and request for hearing, the claim of exemption is granted.
11. A hearing on the claim of exemption must be held within ten (10) days after filing of the notice of dispute and request for hearing. The court must promptly give notice of the date and time of the hearing to the judgment creditor, the judgment debtor and the garnishee.
12. At the hearing, the court must determine the merits of the dispute unless the court postpones a decision pending any discovery necessary to determine the status of the property. If the court finds that the property is not exempt from garnishment, the court must enter a judgment on the writ of garnishment requiring the garnishee to turn over to the judgment creditor the property or amount of money in the judgment.
13. The amount of judgment against a garnishee who has properly answered is the lower of:

    a. the amount of the garnishee's indebtedness to the judgment debtor which from the date of service of the writ is to have been held for further order of the court pursuant to instructions in the writ subject to validly claimed exemptions; or

    b. a portion of the garnishee's indebtedness to the judgment debtor equivalent to the full amount of the judgment of the prevailing party against the judgment debtor, including in either case all interest, costs, and fees as allowed by law. Section 35-12-4(C).

14. If the garnishee is indebted to the judgment debtor for wages or salary, exempt from garnishment is the greater of the following:

    a. seventy-five (75) percent of defendant's disposable earnings for any pay period, or

    b. an amount each week equal to forty (40) times the federal minimum hourly wage rate. Section 35-12-7; Civil Forms 4-806, 4-807, 4-808 and 4-809.

15. If the judgment creditor prevails in a garnishment proceeding, the court may award the judgment creditor either one or both of the following:

    a. the actual costs of the proceeding, not exceeding ten (10) percent the judgment entered against the garnishee, or

    b. a reasonable attorney fee not exceeding ten (10) percent of the judgment entered against the garnishee. Section 35-12-16(A).

16. If the garnishee answers the writ of garnishment, as required by law, the judge shall award the garnishee actual costs and a reasonable attorney fee for filing the answer. The award shall be against the judgment debtor if the judgment creditor prevails or against the judgment creditor if the garnishee prevails. Section 35-12-16(B); Vinton Eppsco, Inc. v. Showe Homes, Inc., 97 N.M. 225, 638 P.2d 1070 (1981).
17. If the garnishee answers that no money or property of the judgment debtor is subject to the writ, the judgment creditor must within twenty (20) days either accept a dismissal of the writ or file a controversion of the garnishee's answer with the court. If the judgment creditor disputes the garnishee's answer, the court gives notice to all parties of a hearing at which the existence of assets subject to the writ and the liability of the garnishee are determined by the court.
18. The judge may enter judgment against the garnishee if the court finds that the garnishee was indebted to or in possession of any personal property and:

    a. failed to answer;

    b. deliberately filed an untruthful answer; or

    c. deliberately released garnished money or property to the judgment debtor or others in violation of the writ.

19. Execution of a judgment against the garnishee is the same as in other civil actions. Section 35-12-11.

E. Garnishment in Aid of Execution of Judgment Entered in Another Court

1. Garnishment in aid of execution of the judgment of another court of this state may be issued only if the unpaid balance of the judgment does not exceed the jurisdictional limit of the garnishing court. See Sections 35-12-1(C) (garnishment in aid of execution) and 35-3-3 ($10,000 jurisdictional limit in magistrate court).
2. This type of garnishment is used when the garnishee is located in the metropolitan or magistrate district but the judgment was entered in another court of this State.
3. The civil complaint must be accompanied by a certified copy of the judgment and by an affidavit. The affidavit must state that:

   a. the defendant has no property within the state subject to execution to satisfy the judgment;

   b. the named garnishee is believed to be indebted to the defendant and that the debt is not exempt from garnishment; and

   c. the named garnishee is believed to hold personal property belonging to the defendant. Section 35-12-1(D).

F. Default Judgment Against Garnishee (Sections 35-12-4(B) & -16(A); Civil Form 4-813 (Default Judgment Against Garnishee)

1. If the garnishee fails to answer within twenty days after service of the writ of garnishment, the judge may enter a default judgment against the garnishee.
2. Default judgment is entered for:

   a. the amount of any judgment rendered against the judgment debtor or the amount claimed by the judgment creditor if judgment has not yet been entered; and

   b. all interest, costs, and fees allowed by law.

G. Release of Garnishment (Section 35-12-4(A); Civil Form 4-814 (Release of Garnishment))

1. The judge enters a release of garnishment if:

   a. at the time of the answer or service of the writ, the garnishee states under oath that he or she was not indebted to or in possession of any personal property of the judgment debtor and the garnishee's answer is not controverted within twenty (20) days after being made; or

   b. the court determines after a hearing on a controversion of the answer that there was nothing in the hands of the garnishee subject to the writ; or

   c. the judgment creditor requests a release of garnishment and certifies to being fully or partially satisfied.

2. The judge prepares the release of garnishment.
3. The garnishee is entitled to actual costs and a reasonable attorney fee for filing an answer. Section 35-12-16(B). The costs and attorney fees are paid by the judgment debtor if the judgment creditor prevails and by the judgment creditor if the garnishee prevails. Section 35-12-16(B).

H. Miscellaneous

1. If the defendant's wages or salary are subject to more than one judgment lien, the liens must be satisfied in the order in which the garnishment is served on the garnishee. Sections 35-12-10 and 38-1-17(G); Magis. Ct. R. 2-202(F)(3)(a); Metro. Ct. R. 3-202(F)(3)(a). (A judgment entered against a garnishee is a lien on the defendant's wages or salary).
2. In a garnishment proceeding against a State official or employee, service of the writ of garnishment is made on the Department of Finance and Administration, on the Attorney General, and on the head of the state agency in which the defendant is employed or on the designee of that agency head.
3. Any person claiming personal property or money in a garnishment proceeding may intervene by filing a complaint in intervention, and the court shall not render a judgment against the garnishee until the intervention is tried and determined by the court.
4. If judgment on the writ ordered the garnishee to deliver personal property to the sheriff to be held pending an order of satisfaction of judgment against the defendant, and if the garnishee fails to deliver the personal property to the sheriff, the sheriff notifies the court, and upon motion of the plaintiff, the court cites the garnishee for contempt. If the garnishee fails to show good cause in the contempt hearing, he or she shall be punished for contempt, and the judge may render judgment against him or her for the full amount of the plaintiff's judgment against the defendant, together with interest and costs.

I. Appeals on Rulings on Claims of Exemption (Magis. Ct. R. 2-803(D); Metro. Ct. R. 3-803(D))
If an order is rendered on the claim of exemption after the expiration of the time for appeal on the main issue in the action, either party aggrieved may appeal to the district court in the same fashion as other appeals from final judgments in metropolitan or Magistrate Court. If an order on the claim of exemption is rendered prior to filing of a notice of appeal on the main issue in the cause, the District Court shall decide the order on the claim of exemption issue.