NM Stat § 39-3-1 (2021)
2021 New Mexico Statutes|Chapter 39 - Judgments, Costs, Appeals|Article 3 - Appeals|Section 39-3-1 - Appeals to district court; trial de novo.

All appeals from inferior tribunals to the district courts shall be tried anew in said courts on their merits, as if no trial had been had below, except as otherwise provided by law. History: Laws 1917, ch. 43, § 59; C.S. 1929, § 105-2533; 1941 Comp., § 19-1001; 1953 Comp., § 21-10-1; Laws 1955, ch. 68, § 1. ANNOTATIONSCross references. — For costs on appeal, see 39-2-5 and 39-2-6 NMSA 1978, and Rule 12-403 NMRA. For free process on indigent appeals, see 39-3-12 NMSA 1978. For constitutional provision as to appeals from probate courts and other inferior courts, see N.M. Const., art. VI, § 27. For appeals from administrative agencies, see Rules 1-074 and 1-075 NMRA. For appeal of assessments for local improvements, to district court, see 3-33-35 and 3-33-37 NMSA 1978. For appeals from metropolitan court to district court, see 34-8A-6 NMSA 1978. For appeals from magistrate court to district court, see 35-13-2 NMSA 1978. For appeal of violation of municipal ordinances, see 35-15-10 NMSA 1978. For appeal from order of director of financial institutions division, see 58-1-45 NMSA 1978. For review of supervisor's order regarding savings and loan associations, see 58-10-84 NMSA 1978. For review of bank examiner's decisions on small loans, see 58-15-25 NMSA 1978. For review of public service commission orders, see 62-11-1 to 62-11-6 NMSA 1978. For appeal from decision of viewers awarding damages to county roads, see 67-5-19 NMSA 1978. For appeals from orders of mine inspector, see 69-6-2 NMSA 1978. For appeals from state engineer regarding water rights, see 72-7-1 to 72-7-3 NMSA 1978. For appeal from determination of irrigation district concerning exemption from tax, see 73-11-29 NMSA 1978. For appeal from county commissioners regarding electrical irrigation districts, see 73-12-4 NMSA 1978. For appeal from board of directors of irrigation district regarding transfer of water rights, see 73-13-4 NMSA 1978. For civil appeals from magistrate courts, see Rules 2-705 and 1-072 NMRA. For appeals from the metropolitan court in on the record cases, see Rule 1-073 NMRA. For criminal appeals from magistrate courts, see Rule 6-703 NMRA. Appeals from a court of record. — Whether a lower court is of record determines whether a trial will be de novo. If an appeal is on record, the district court acts as a typical appellate court reviewing the record of the lower court's trial for legal error. In a de novo appeal, in contrast to appeals on the record, the district court conducts a new trial as if the trial in the lower court had not occurred. State v. Foster, 2003-NMCA-099, 134 N.M. 224, 75 P.3d 824, cert. denied, 134 N.M. 179, 74 P.3d 1071 (2003). Appeal of guilty plea. — A defendant is not entitled, as a matter of right, to a trial de novo in district court following judgment against him on his guilty plea and disposition agreement in the metropolitan court. State v. Bazan, 97 N.M. 531, 641 P.2d 1078 (Ct. App.), cert. denied, 98 N.M. 50, 644 P.2d 1039 (1982), overruled in part by State v. Ball, 104 N.M. 176, 718 P.2d 686 (1986) District court erred in dismissing defendant's de novo appeal. — Where defendant was charged with criminal damage to property of a household member, and where, at arraignment in magistrate court, defendant asked to be represented by a public defender, and where the magistrate court judge entered an order conditionally appointing the Law Offices of the Public Defender (LOPD), finding that "the defendant was unable to obtain counsel and desires representation by the LOPD", and where, in that same proceeding while defendant stood accused of a crime and had requested but had not yet received legal representation, the magistrate court judge accepted defendant's plea of no contest and adjudicated defendant's guilt, and where on de novo appeal to the district court, the district court judge dismissed the appeal for lack of prosecution, finding that defendant had not taken action on the case in more than 180 days, the district court erred in dismissing defendant's de novo appeal, because the district court effectively shifted the burden on defendant to bring himself to trial. While a defendant has the burden to file a de novo appeal according to applicable rules of procedure, the defendant does not have the burden to move the case forward thereafter. State v. Cruz, 2021-NMSC-015, rev'g A-1-CA-37581, mem. op. (May 24, 2019) (non-precedential).County in which appeal should be heard. — An appeal of hearing officer's decision for bids for a campus electrical distribution upgrade project must be taken in the district court of the county in which the agency maintains its principal office or the district court of any county in which a hearing on the matter was conducted. Use of the word "may" in Section 39-3-1.1C NMSA 1978 does not permit an administrative appeal to be brought in any district court. The appeal itself is permissive and not mandatory. State ex rel ENMU Regents v. Baca, 2008-NMSC-047, 144 N.M. 530, 189 P.3d 663. Appeal premature. — The petitioner's appeal of the human services department's administrative decision establishing a claim for overpayment of food stamp benefits was premature where the department failed to exercise its authority under federal law to settle, adjust, or compromise the department's overpayment claim. Waters-Haskins v. N.M. Human Services Dept., 2008-NMCA-127, 144 N.M. 853, 192 P.3d 1230, cert. granted, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488, rev'd, 2009-NMSC-031, 146 N.M. 391, 210 P.3d 817. District court must try case de novo. — District court, in prosecution for assault and battery, must try the case de novo, as other criminal cases. Territory v. Lowitski, 6 N.M. 235, 27 P. 496 (1891) (decided under former law). Where appellant interposed a plea to the jurisdiction of a justice of the peace (now magistrate), which was overruled, and he declined to plead further and judgment was rendered against him, and on appeal to the district court appellant conceded the jurisdiction of the justice of the peace but appellee's motion for affirmance of the judgment was overruled, the latter ruling was proper because the case is triable de novo in the district court, upon the merits, under our statute. Rogers v. Kemp Lumber Co., 18 N.M. 300, 137 P. 586 (1913) (decided under former law). Trial de novo is trial "anew," as if no trial whatever had been had in the municipal court. City of Farmington v. Sandoval, 90 N.M. 246, 561 P.2d 945 (Ct. App. 1977). District court does not review correctness of proceedings in municipal court; the district court trial is as if no trial had been held in the municipal court. City of Farmington v. Sandoval, 90 N.M. 246, 561 P.2d 945 (Ct. App. 1977). Trial de novo on alternative means of committing offense did not violate double jeopardy. — When a defendant is convicted based on one of two alternative means of committing a single crime, there is not an implied acquittal of the other alternative unless the conviction logically excludes guilt of the other alternative; if there is no implied acquittal, there is no constitutional prohibition against retrial of both alternatives after a conviction is set aside. State v. Ben, 2015-NMCA-118, cert. denied, 2015-NMCERT-011. Where defendant was charged in magistrate court with multiple means of committing DWI, per se DWI and impaired to the slightest degree, and was convicted on the per se theory of DWI, defendant's double jeopardy rights were not violated when he was retried de novo on the impaired theory in the district court, because his conviction on the per se theory of DWI was not logically inconsistent with a finding of impaired DWI. State v. Ben, 2015-NMCA-118, cert. denied, 2015-NMCERT-011. Review of Medicaid recoupment action. — Where petitioner, a nursing home, appealed the district court's decision upholding the decision of the director of the New Mexico Human services department, medical assistance division, (HSD/MAD) to recoup medicaid payments made to petitioner on the basis that petitioner was not entitled to medicaid payments for services to a certain resident because petitioner did not comply with New Mexico department of health (DOH) nursing home preadmission screening regulations before it admitted the resident, the district court erred in determining that petitioner improperly performed or otherwise failed to complete the screening process, because petitioner's admission coordinator correctly completed the screening form provided by DOH and, because the screening form and instructions provided by DOH were not promulgated according to the New Mexico Administrative Procedures Act, they do not have the force and effect of law and cannot serve as the basis for a HSD/MAD enforcement action. Princeton Place v. N.M. Human Servs. Dep't, 2018-NMCA-036, cert. granted. Late filing of appeal. — Because timely filing of an appeal is a mandatory precondition rather than an absolute jurisdictional requirement, a trial court may, under unusual circumstances, use its discretion and entertain an appeal even though it is not timely filed. The decision to dismiss an appeal is extreme and must be determined on a case-by-case basis. Trujillo v. Serrano, 117 N.M. 273, 871 P.2d 369 (1994). Court error may excuse late appeal. — One unusual circumstance that would warrant permitting an untimely appeal is if the delay is a result of judicial error. To deny a party the constitutional right to an appeal because of a mistake on the part of the court runs against the most basic precepts of justice and fairness. Trujillo v. Serrano, 117 N.M. 273, 871 P.2d 369 (1994). District court not to review probate court determination on certiorari. — The district court is in error in reviewing the probate court's determination on writ of certiorari as certiorari is available only if the probate court lacked jurisdiction in the case or if no right of appeal existed. Jones v. Seaton, 80 N.M. 210, 453 P.2d 380 (1969). Even if determination erroneous. — The determination of the intention of the testator, even though erroneous, does not oust the probate judge of jurisdiction. The remedy for a claimed error is by appeal, not by certiorari. Jones v. Seaton, 80 N.M. 210, 453 P.2d 380 (1969). District court not to take jurisdiction unless inferior court had same. — District court cannot, on appeal, take jurisdiction, except for purpose of dismissal, unless the inferior court had acquired jurisdiction. Chaves v. Perea, 3 N.M. (Gild.) 89, 2 P. 73 (1884) (decided under former law). Appeal held not to operate as stay of execution. — The taking of an appeal or suing out a writ of error does not operate as a stay of execution, and a judgment plaintiff has a right to issue execution upon such judgment, or take such other proceedings as the law contemplates, in the absence of a supersedeas bond approved and filed in accordance with law. Llewellyn v. First State Bank, 22 N.M. 358, 161 P. 1185 (1916) (decided under former law). State has no right to appeal from judgment of the district court sustaining in part a demurrer (now motion to dismiss) to an information charging defendant with trespassing on a school section. State v. Dallas, 22 N.M. 392, 163 P. 252 (1917). There is no statutory authority authorizing an appeal by the state from a judgment sustaining a plea in abatement to an indictment. Ex parte Carrillo, 22 N.M. 149, 158 P. 800 (1916) (decided under former law). District court controlled by rules of practice. — Appeals from inferior tribunals to the district court must be tried upon their merits as if they were new actions in such court, which is not to be trammeled in its mode of proceeding by the irregular, untechnical acts of the justice of the peace (now magistrate), but the proceedings are to be controlled by its enlarged rules of practice which permit amendments to show jurisdiction of such justice of the peace. Sanchez y Contreas v. Candelaria, 5 N.M. 400, 23 P. 239 (1890) (decided under former law). Amendment of complaint on appeal permitted. — On appeal from a justice of the peace (now magistrate), the district court may permit an amendment to the complaint to remedy deficiencies in the justice court, and it is error to refuse such amendment. Romero v. Luna, 6 N.M. 440, 30 P. 855 (1892); Sanchez y Contreas v. Candelaria, 5 N.M. 400, 23 P. 239 (1890) (decided under former law). Right of appeal governed by statute when judgment rendered. — As a general rule, the right of appeal is governed by the statute in force when final judgment is rendered, and, unless the statute which changes the right of appeal clearly intends a retrospective effect, it has no application to causes in which final judgment was rendered prior to its passage. Jackman v. Atchison, T. & S.F. Ry., 22 N.M. 422, 163 P. 1084 (1917). Computation of time for taking appeal. — The time for taking an appeal or writ of error is computed from the date of the denial of the motion for new trial and not from the date of the entry of judgment, the motion for a new trial having been filed within the specified time. Romero v. McIntosh, 19 N.M. 612, 145 P. 254 (1914) (decided under former law). Delay in conducting appeal de novo. — A delay in conducting an appeal de novo in district court following a conviction in municipal court did not establish a deprivation of the defendant's constitutional rights since the defendant had a responsibility to try to keep the case from slipping through the cracks. Town of Bernalillo v. Garcia, 118 N.M. 610, 884 P.2d 501 (Ct. App.), cert. denied, 118 N.M. 585, 883 P.2d 1282 (1994). Organic Act prohibited appeals other than from final judgments. — The Organic Act, establishing the territory of New Mexico, prohibited the entertaining of appeals from any class of decisions other than final judgments. Weaver v. Weaver, 15 N.M. 333, 107 P. 527 (1910) (decided under former law). Judgment vacating previous voidable judgment as final. — A judgment of a district court purporting to vacate a previous judgment which was voidable, but not void, is a final judgment and appealable. Weaver v. Weaver, 16 N.M. 98, 113 P. 599 (1911) (decided under former law). Violation of injunction as final judgment. — Appeals do not lie to the supreme court from judgments of district courts which commit persons to jail for the willful violation of an injunction, for this statute only confers jurisdiction to review by appeal final judgments rendered upon indictments in criminal cases. Marinan v. Baker, 12 N.M. 451, 78 P. 531 (1904) (decided under former law). Fiduciaries are entitled to supersede judgment against them, as such, only when they have sued out an appeal or writ of error within 60 days from the date of final judgment. Sakariason v. Mechem, 20 N.M. 307, 149 P. 352 (1915) (decided under former law). Appeal of contested election. — The district court had appellate jurisdiction from judgments and orders of the prefects and alcaldes in all cases not prohibited by law, including contested election cases for justice of the peace (now magistrate). Quintana v. Tompkins, 1 N.M. 29 (1853), overruled Arellano v. Chacon, 1 N.M. 269 (1859), holding that no appeal lie from probate court judgment in case of contested election for office of justice of the peace (decided under former law). Appeals from probate court. — Appeals may be taken from judgments relating to revenue of probate courts, in which the causes originated, to the district and not to the supreme court, provided they are taken on the day of trial; so that the district and not the supreme court is by law the appropriate appellate tribunal from the judgment of the probate court. Territory v. Ortiz, 1 N.M. 5 (1852) (decided under former law). Where judgment of probate court is not final, but merely an interlocutory order, it is error to compel an appeal to the district court by mandamus. Territory ex rel. Lee v. Hubbell, 9 N.M. 560, 58 P. 344 (1899) (decided under former law). To allow interlocutory appeal of order of suppression from magistrate court would impermissibly expand the appellate jurisdiction of the district court to hear matters beyond those currently allowed. State v. Heinsen, 2004-NMCA-110, 136 N.M. 295, 97 P.3d 627, aff'd, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. The state does not have the statutory authority or constitutional right to immediately appeal a magistrate court order suppressing evidence to the district court. State v. Heinsen, 2004-NMCA-110, 136 N.M. 295, 97 P.3d 627, aff'd, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. Action outside scope of district court's appellate jurisdiction. — Where in a de novo motion hearing the district court took testimony of the same witnesses heard in the magistrate court, entered specific findings concerning those witnesses' credibility, reversed the magistrate's order and remanded the case to the magistrate for trial, this action is clearly outside the scope of the district court's appellate jurisdiction, which only provides an appeal by a full trial de novo as if the trial below had not happened in the magistrate court. State v. Heinsen, 2004-NMCA-110, 136 N.M. 295, 97 P.3d 627, aff'd, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040. Appeal from hearing officer's decision. — "Inferior tribunals," as used in this section, does not include a county personnel board or hearing officer; county was not entitled to de novo review of an adverse personnel decision by a hearing officer. Bd. of Cnty. Comm'rs v. Harrison, 1998-NMCA-106, 125 N.M. 495, 964 P.2d 56. Am. Jur. 2d, A.L.R. and C.J.S. references. — Constitutionality of statute penalizing unsuccessful appeal to courts from action of administrative board, 39 A.L.R. 1181. Plea of guilty in police, magistrate, municipal, or similar inferior court as precluding appeal, 42 A.L.R.2d 995. 4 C.J.S. Appeal and Error § 41.