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

1.5-1 Attachment

(Sections 35-9-1 through -8)

A. Definition
Attachment is the taking of personal property of the defendant into legal custody before trial and judgment. The property is then held in the possession of the sheriff so that if judgment is obtained, the property can be sold to satisfy that judgment. Attachment is a special proceeding in the nature of a civil action.

B. Constitutionality
Although the state's attachment statutes have not been held unconstitutional, the state's pre-judgment replevin statutes were held unconstitutional prior to the legislature amending the law to include minimum due process requirements. The following history of litigation and legislation relating to the replevin statutes is relevant in considering attachment proceedings. In 1972, the New Mexico federal district court and the New Mexico Supreme Court declared the provision of the state replevin statute on prejudgment taking of property without a hearing to be unconstitutional. Sena v. Montoya, 346 F. Supp. 5 (D. N.M. 1972); Montoya v. Blackhurst, 84 N.M. 91 (1972); §35-11-1; see also §1.5-2 of this Benchbook regarding replevin. As a result, the New Mexico Legislature amended the replevin statute to prohibit the pre-judgment taking of property. In July 1984, the New Mexico Supreme Court held that the amended replevin statute, which now contains minimum due process requirements, is constitutional. First National Bank of Santa Fe v. Southwest Yacht & Marine Supply Corp., 101 N.M. 431 (1984).

The New Mexico appellate courts have not yet reviewed the attachment statutes. Nevertheless, judges should carefully comply with statutory requirements in attachment proceedings. Sections 35-9-1 through -8; Magis. Ct. R. 2-802; Metro. Ct. R. 3-802; see also §1.4-1 of this Benchbook (discussing execution procedures that are also followed in attachment proceedings).

C. Procedures

1. An attachment is initiated by the plaintiff by filing a civil complaint as in other civil actions.
2. The Rules of Civil Procedure for the Magistrate Courts, the Rules of Procedure for Metropolitan Court, the laws applicable to jurisdiction and venue and all other laws governing the magistrate courts or metropolitan court apply to attachments unless specifically otherwise provided by law.
3. The complaint must be accompanied by a bond in an amount double the sum claimed in the complaint. Sections 35-9-1(A)(1) and 42-9-7.

   a. The bond must be executed by the plaintiff (or some responsible person as principal) and two or more sureties.

   b. The sureties, if individuals, must be residents of the state; bond companies must be authorized to do business in the state.

4. The plaintiff must also agree to prosecute the action to final judgment without delay and to pay the defendant all damages and costs including attorney fees sustained from the attachment if no judgment is recovered against the defendant. Sections 35-9-1 & -7; Territory ex re. Leyser v. Rindskopf Bros. & Co., 5 N.M. 93 (1889).
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 is not a resident of the state;

   b. 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;

   c. The defendant is about to remove his or her personal property out of the state or has fraudulently concealed or disposed of such property as to defraud, hinder or delay creditors;

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

   e. 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;

   f. 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;

   g. The defendant fraudulently contracted the debt, incurred the obligation, or obtained credit from the plaintiff by false pretenses; or

   h. The debt 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. Section 35-9-1(A)(2).

6. The writ of attachment orders the sheriff or a full-time, salaried deputy, to:

   a. attach personal property of the defendant within the court district having a value sufficient to satisfy the amount claimed in the complaint;

   b. safely keep the property to satisfy any judgment that might be recovered in the action; and

   c. to make return of the attachment to the judge at the time specified in the writ (not less than five days nor more than fifteen days from the date of issuance).

7. The sheriff or deputy shall comply with the order by:

   a. immediately making an inventory of the property seized, and

   b. serving on the defendant, personally, a copy of the summons, civil complaint, form for answer, copy of the attachment writ, and the sheriff's inventory.

   i. If the defendant cannot be personally served, the above documents should be left at the defendant's residence.

ii. If the defendant cannot be personally served and has no residence, the documents should be left with the person in whose possession the property is found. Section 35-9-2(A) and (B); Magis. Ct. R. 2-202 & 2-802(A); Metro. Ct. R. 3-202 & 3-802(A)

8. If the person in possession of or claiming the property gives the sheriff a bond naming the plaintiff as obligee, the sheriff or deputy shall not remove the property from the premises. Section 35-9-2(C).

   a. The bond must be for an amount either double that claimed in the complaint or double the value of the property about to be attached, whichever is the lesser amount, and

   b. The person making the bond must condition the bond on the fact that the property will be produced to satisfy any execution that might be issued upon any judgment obtained by the plaintiff in the action. Civil Form 4-701 (Judgment); see also §1.4-1 of this Benchbook regarding execution.

D. Attachment Service Response

1. If the defendant was personally served with the summons, complaint, writ of attachment, answer form, and sheriff's inventory, or if he or she appeared as required by the summons, the judge proceeds to hear and determine the action on the merits as in other civil actions. Section 35-9-3.
2. If the defendant was not personally served, but his or her property was seized and he or she fails to appear in response to the summons, the judge must order the sheriff to notify the defendant, either by publication in a newspaper or by posting a notice in at least three of the most public places in the county that:

   a. The defendant's property has been attached;

   b. The time and place of hearing before the judge (not less than 20 or more than 90 days from the date of the notice); and

   c. Unless the defendant appears at the hearing, judgment will be rendered against him or her and the property will be sold to pay the debt. Section 35-9-3(B).

3. If the defendant appears in response to the notice, the judge hears and determines the case as in other civil actions. Section 35-9-3(A). If the defendant fails to appear, the Court enters a default judgment for the amount of the debt and orders the sale of the property to satisfy the judgment. Section 35-9-3(B).
4. An action may be brought against a bonding company, or individual surety on the bond, in the name of the State of New Mexico, by an injured party, and the case proceeds as in other civil actions.

E. Dissolution of Attachment (Sections 35-9-4 & -7 (written bond form) and 42-9-7 & -9 (surety requirements))

1. An attachment may be dissolved without the sale of the property, at any time before a judgment has become final, if the defendant:

   a. appears and pleads to the complaint;

   b. posts a bond to the plaintiff in double the amount claimed in the complaint or double the value of the property attached, whichever is less; and

   c. conditions the bond on the fact that the property will be available to satisfy any judgment that might be entered against him or her in the action.

F. Exemptions from Attachment (Sections 42-10-1 through -13)

1. Exemptions of personal property also apply to attachment proceedings. Magis. Ct. R. 2-803(B); Metro. Ct. R. 3-803(B).
2. Notice of a right to claim exemptions shall be given to all pre-judgment attachment proceedings in the same manner as required in execution proceedings. A claim of exemption may be filed and served, and the petitioner may dispute the claim, in the same manner as for execution. Magis. Ct. Rules 2-801 & 2-803(B); Metro. Ct. Rules 3-801 & 3-803(B); see also §1.4-1 for execution of judgments.
3. Upon the filing of a claim of exemptions in an attachment proceeding, the court shall conduct a hearing as in provided in exemption proceedings and enter an order on the claim. Magis. Ct. R. 2-803(C); Metro. Ct. R. 3-803(C).

G. Appeals in Attachment (Magis. Ct. R. 2-803(D); Metro. Ct. R. 3-803(D))

1. If an order on the claim of exemption is rendered after expiration of the time for appeal on the main issue in the action, either party aggrieved by the order may appeal to the district court.
2. If an order on the claim of exemption is rendered before judgment on the main issue in the cause, the order may be appealed to the district court.