reglab/statecodes huggingface dataset:
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-2 - Garnishment; service on garnishee.

A. The garnishment shall be served on the garnishee within the magistrate district in the manner provided by law for service of a civil summons in the magistrate court and shall order the garnishee in the action to appear before the magistrate within twenty days from the date of service to answer under oath, as of the date the garnishment was served and also as of the date of the garnishee's answer:
(1) what, if anything, the garnishee is indebted to the defendant and on what account;
(2) what, if any, personal property of the defendant is in the garnishee's possession; and
(3) what other persons, if any, within the garnishee's knowledge are indebted to the defendant or have personal property of the defendant in their possession.
B. Return on the garnishment shall be made in the manner provided by law for return on a civil summons in the magistrate court.
C. At the same time as the garnishment is served on the garnishee, a copy of the garnishment shall be sent to the defendant's last known address.
History:
1953 Comp., § 36-14-2, enacted by Laws 1968, ch. 62, § 134; 1978 Comp., § 35-12-2; 2023, ch. 104, § 1.
ANNOTATIONS
Repeals.
— Laws 1968, ch. 62, § 171, repealed former 36-14-2, 1953 Comp., relating to discharge upon giving bond, effective January 1, 1969.
Cross references.
— For service of writs of garnishment on state employees,
see
38-1-17 NMSA 1978.
For Rules of Civil Procedure for the Magistrate Courts,
see
Rule 2-101 NMRA et seq.
The 2023 amendment,
effective July 1, 2023, required that a copy of the garnishment be sent to the defendant's last known address at the same time the garnishment is served on the garnishee; substituted each occurrence of "he" or "his" with "the garnishee's"; and added Subsection C.
Applicability.
— Laws 2023, ch. 104, § 13 provided that the provisions of Laws 2023, ch. 104 apply to actions filed on or after July 1, 2023.
Perfection of the writ of garnishment
occurred on the date of service of the writ, and the lack of a judgment against the garnishee had no effect, as any judgment would relate back to the date of service of the writ.
Behles v. Ellermeyer (In re Lucas)
, 107 Bankr. 332 (Bankr. D.N.M. 1989).
Service of the writ of garnishment creates a lien
on the property attached, which is a transfer within the meaning of the Federal Bankruptcy Law.
Behles v. Ellermeyer (In re Lucas)
, 107 Bankr. 332 (Bankr. D.N.M. 1989).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 6 Am. Jur. 2d Attachment and Garnishment §§ 339 to 341.
Service of process in garnishment of foreign corporation doing business in state, 113 A.L.R. 140.
Who may serve writ, summons, or notice of garnishment, 75 A.L.R.2d 1437.
United States Postal Service as subject to garnishment, 38 A.L.R. Fed. 546.
38 C.J.S. Garnishment § 174 et seq.; 51 C.J.S. Justices of the Peace § 78(4).
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-5 - Garnishment; controverting garnishee's answer.

A. If the plaintiff or defendant is not satisfied with the answer of any garnishee, he may controvert it by stating how he believes it is incorrect, and the issue shall be tried and determined by the magistrate court.
B. Any person claiming personal property, money or any chose in action garnished may intervene in the action, and no judgment shall be rendered against the garnishee until the intervention is tried and determined by the magistrate court.
History:
1953 Comp., § 36-14-5, enacted by Laws 1968, ch. 62, § 137.
ANNOTATIONS
Repeals.
— Laws 1968, ch. 62, § 171, repealed former 36-14-5, 1953 Comp., relating to appearance bonds when both parties absent or present, effective January 1, 1969.
Effect of nonnegotiability of note provision.
— The insertion of a provision specifying the nonnegotiability of a note cannot circumvent a judgment creditor's right to garnishment. The nonnegotiability of the note does not preclude the underlying debt due from the garnishee to the defendant from being collected by garnishment, as under this section monies due under a chose in action are subject to garnishment.
Jemko, Inc. v. Liaghat
, 1987-NMCA-069, 106 N.M. 50, 738 P.2d 922.
Intervention.
— A party claiming an interest in the subject matter of the garnishment should, upon timely application, be permitted to intervene in the garnishment.
Jemko, Inc. v. Liaghat
, 1987-NMCA-069, 106 N.M. 50, 738 P.2d 922.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 6 Am. Jur. 2d Attachment and Garnishment §§ 355, 356.
38 C.J.S. Garnishment § 258 et seq.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-6 - Garnishment; unmatured debts.

Debts not yet due to the defendant may be garnished, but no execution shall be awarded against the garnishee for such debts until they become due. The magistrate may order the defendant to deliver the evidence of such indebtedness to the court. If the defendant alleges an endorsement or delivery of the evidence before the court's order came to his knowledge, the court may inquire into the consideration and good faith of the transfer and, if the court determines that the endorsee or transferee holds by fraudulent endorsement or delivery, it may order delivery of the evidence to the court. When any evidence of indebtedness is delivered to the court under this section, the court shall notify any endorsers of its nonpayment at maturity, and the garnishment proceedings shall remain open until it becomes due.
History:
1953 Comp., § 36-14-6, enacted by Laws 1968, ch. 62, § 138.
ANNOTATIONS
Repeals.
— Laws 1968, ch. 62, § 171, repealed former 36-14-6, 1953 Comp., relating to peace bond procedure, effective January 1, 1969.
Effect of nonnegotiability of note provision.
— The insertion of a provision specifying the nonnegotiability of a note cannot circumvent a judgment creditor's right to garnishment. The nonnegotiability of the note does not preclude the underlying debt due from the garnishee to the defendant from being collected by garnishment, as under 35-12-5 NMSA 1978, monies due under a chose in action are subject to garnishment.
Jemko, Inc. v. Liaghat
, 1987-NMCA-069, 106 N.M. 50, 738 P.2d 922.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 6 Am. Jur. 2d Attachment and Garnishment § 56.
Garnishment of money due only on further performance of contract by debtor, 2 A.L.R. 506.
Garnishment of money in escrow, 10 A.L.R. 741.
Right of garnishee, other than bank holding deposit, to set off claims not due or certain when garnishment is served, 57 A.L.R.2d 700.
38 C.J.S. Garnishment § 91 et seq.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-8 - Garnishment; payment of exempt wages and salary.

Any employer charged as a garnishee in any civil action in the magistrate court shall pay to the defendant, when due, the amount of his wages or salary exempt from garnishment under Section 35-12-7 NMSA 1978.
History:
1953 Comp., § 36-14-7.1, enacted by Laws 1969, ch. 139, § 7.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-9 - Garnishment; wages and salary; lien; priority.

A. A judgment entered against a garnishee under Section 35-12-4D NMSA 1978 is a lien on the defendant's wages or salary, which are not exempt from garnishment under Section 35-12-7 NMSA 1978 and which come due subsequent to the time of answer, until the judgment against the garnishee is paid or until the employment relationship is terminated.
B. If the defendant's wages or salary are subject to more than one judgment lien, the liens shall be satisfied in the order in which the garnishment is served on the garnishee.
History:
1953 Comp., § 36-14-7.2, enacted by Laws 1969, ch. 139, § 8.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 6 Am. Jur. 2d Attachment and Garnishment §§ 33, 176 to 183; 31 Am. Jur. 2d Exemptions §§ 1, 35 to 41, 43 to 49, 51 to 53, 55, 56.
35 C.J.S Exemptions §§ 1, 47 to 51; 38 C.J.S. Garnishment § 199 et seq.; 51 C.J.S. Justices of the Peace § 78(7).
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-10 - Garnishment; public officer as garnishee.

A. No public officer of the state or any of its political subdivisions shall be summoned in his official capacity as a garnishee in a civil action in the magistrate court to answer for wages or salaries due to a public officer or employee unless the plaintiff has a judgment in the action against the defendant. Under this condition, wages and salaries due public officials and employees are subject to garnishment.
B. This section does not prevent any available claim of exemption from garnishment.
C. As provided in this section, when any public officer is summoned as garnishee in a civil action in the magistrate court, his answer shall be by statement over his official signature of the amount due the defendant and the statement shall be filed in the action without cost.
History:
1953 Comp., § 36-14-8, enacted by Laws 1968, ch. 62, § 140.
ANNOTATIONS
Cross references.
— For service of writs of garnishment on state employees,
see
38-1-17 NMSA 1978.
Injunction in aid of garnishment not allowed.
— Injunction would not lie against the state highway commission [state transportation commission] and members thereof and the state highway engineer (secretary of transportation), the state auditor and treasurer, to restrain them from paying a contractor, pending the efforts of a creditor of such contractor to procure a judgment at law in order that he might summon such officials as garnishees, it being in effect an action against the state.
Looney v. Stryker
, 1926-NMSC-037, 31 N.M. 557, 249 P. 112.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 6 Am. Jur. 2d Attachment and Garnishment §§ 78 to 84.
Right of municipal corporation to waive immunity from garnishment, 2 A.L.R. 1586.
Constitutionality of statute authorizing garnishment of salary or wages of public officials or employees, 22 A.L.R. 760, 123 A.L.R. 903.
County as subject to garnishment, 60 A.L.R. 823.
Municipal funds and credits as subject to garnishment on judgments against municipality, 89 A.L.R. 863.
Redemption money in hands of officer as subject to garnishment, 94 A.L.R. 1049.
38 C.J.S. Garnishment §§ 26, 39 et seq.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-11 - Garnishment; execution against garnishee.

Whenever judgment is rendered against the garnishee in any civil action in the magistrate court, execution shall be made as provided by law for executions in other civil actions in the magistrate court.
History:
1953 Comp., § 36-14-9, enacted by Laws 1968, ch. 62, § 141.
ANNOTATIONS
Cross references.
— For rules on execution in magistrate courts in civil case,
see
Rules 2-801 to 2-803 NMRA.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-12 - Garnishment; defense to claim against garnishee.

In any action by a defendant against a garnishee based on any indebtedness of the garnishee or on possession of any personal property, it is a conclusive defense for the garnishee to show that the indebtedness was paid or the personal property delivered under judgment of the magistrate court in a garnishment proceeding.
History:
1953 Comp., § 36-14-10, enacted by Laws 1968, ch. 62, § 142.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 6 Am. Jur. 2d Attachment and Garnishment §§ 357 to 390.
Estoppel of garnishee or surety on delivery bond to deny indebtedness to principal defendant, by judgment against the latter which garnishee, surety, or latter's reinsurer sought to prevent, 27 A.L.R. 1543.
Liability of garnishee to garnishing creditor for depreciation in value of property pending contest, 32 A.L.R. 572.
Payment under void order in garnishment proceedings as protection to garnishee, 49 A.L.R. 1411.
Liability of garnishee to garnishor where former pays debts or releases property pending defective garnishment proceedings, 89 A.L.R. 975.
38 C.J.S. Garnishment § 230 et seq.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-13 - Garnishment; dissolution.

A. At any time before judgment in a civil action in the magistrate court in which a garnishment has been issued, the defendant in the action may obtain a dissolution of the garnishment by filing in the action 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.
B. When a garnishment is dissolved, all proceedings touching the garnished indebtedness or personal property are vacated.
History:
1953 Comp., § 36-14-11, enacted by Laws 1968, ch. 62, § 143.
ANNOTATIONS
Law reviews.
— For comment, "Wage Garnishment in New Mexico - Existing Debtor Protections under Federal and State Law and Further Proposals," see 1 N.M.L. Rev. 388 (1971).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 6 Am. Jur. 2d Attachment and Garnishment §§ 408, 518 to 534.
Discharge of garnishment, or bond for its dissolution, by subsequent amendment of pleadings or the writ, 74 A.L.R. 912.
Abatement on ground of prior pending action in same jurisdiction as affected by loss by plaintiff in second action of advantage gained therein by attachment, garnishment, or like process, 40 A.L.R.2d 1111.
Amendment of bond, 47 A.L.R.2d 971.
38 C.J.S. Garnishment § 319; 51 C.J.S. Justices of the Peace § 78(10).
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-14 - Garnishment; suit on bond.

The bond given by the plaintiff or other person in a garnishment proceeding in the magistrate court may be sued upon in the name of the state by any party injured, and shall proceed as in other civil actions.
History:
1953 Comp., § 36-14-12, enacted by Laws 1968, ch. 62, § 144.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 6 Am. Jur. 2d Attachment and Garnishment §§ 518 to 557.
38 C.J.S. Garnishment § 351 et seq.; 51 C.J.S. Justices of the Peace § 78(13).
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-15 - Garnishment; special provisions.

All laws and procedures governing magistrate courts apply to garnishment proceedings in the magistrate court except as otherwise provided by law.
History:
1953 Comp., § 36-14-13, enacted by Laws 1968, ch. 62, § 145.
ANNOTATIONS
Cross references.
— For the Rules of Civil Procedure for the Magistrate Courts,
see
Rule 2-101 NMRA et seq.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-17 - Garnishment; form of bond.

Garnishment bonds in civil actions in the magistrate court shall be in substantially the following form:
"STATE OF NEW MEXICO
____________ MAGISTRATE DISTRICT, DIVISION _______
(Name), Plaintiff
)
)
v.
)
CIVIL DOCKET NO. ________
(Name), Defendant
(Name), Garnishee
)
)
GARNISHMENT BOND
We bind ourselves, our heirs, executors and administrators to the state of New Mexico in the sum of ___________ ($ ____) on condition that the plaintiff will diligently prosecute this action to final judgment without delay, will pay to the defendant all money found due to him in the action, and will pay all damages and costs that may accrue to the defendant and the garnishee by reason of the garnishment or any process or judgment thereon, upon completion of which this obligation is void.
______________________________
Plaintiff (Principal)
______________________________
Surety
______________________________
Surety
Approved _____________, 19 ___
__________________________________
Magistrate"
History:
1953 Comp., § 36-14-14, enacted by Laws 1968, ch. 62, § 146.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 12 - Magistrate Court; Garnishment › Section 35-12-19 - Garnishment; district court; magistrate court; small claims court.

Garnishment may be issued in the district court, magistrate court or small claims court. Sections 35-12-1 through 35-12-18 NMSA 1978 apply to the issuance of garnishment in the district court, magistrate court or small claims court; provided, however, that in the event the district court has jurisdiction, the district court clerk may issue the writ of garnishment. In those cases filed in small claims court, the small claims court may issue the writ of garnishment.
History:
1953 Comp., § 36-14-16, enacted by Laws 1969, ch. 139, § 10; 1973, ch. 24, § 1; 1979, ch. 183, § 1.
ANNOTATIONS
Repeals.
— Laws 1979, ch. 346, § 13, repealed 34-8-1 to 34-8-13 NMSA 1978, which provided for the small claims court referred to in this section. Laws 1979, ch. 346, also established metropolitan courts.
See
34-8A-1 to 34-8A-8 NMSA 1978.
Cross references.
— For jurisdictional amount of magistrate court,
see
35-3-3 NMSA 1978.
For jurisdiction of district courts,
see
N.M. Const., art. VI, § 13.
Purpose of section.
— This section expressly invests district courts with jurisdiction to issue writs of garnishment relating to matters pending in their courts in accordance with Sections 35-12-1 to 35-12-18 NMSA 1978.
Jemko, Inc. v. Liaghat
, 1987-NMCA-069, 106 N.M. 50, 738 P.2d 922.
Jurisdiction generally.
— A court has no jurisdiction to proceed in garnishment, even though it is a court of general jurisdiction, unless such jurisdiction is expressly conferred by statute. 1969 Op. Att'y Gen. No. 69-85.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 13 - Magistrate Court; Appeals › Section 35-13-3 - Appeals; amendments on trial de novo.

Upon trial de novo in the district court upon appeal from the magistrate court, the district court shall allow all amendments necessary to the furtherance of justice.
History:
1953 Comp., § 36-15-4, enacted by Laws 1968, ch. 62, § 151.
ANNOTATIONS
Repeals.
— Laws 1968, ch. 62, § 171, repealed former 36-15-1 to 36-15-4, 1953 Comp., relating to forfeiture of appearance bonds, summons, service and appeal, effective January 1, 1969.
Meaning of "trial de novo".
— Appeals from a magistrate court to the district court shall be determined by trial de novo which means "anew."
Southern Union Gas Co. v. Taylor
, 1971-NMSC-067, 82 N.M. 670, 486 P.2d 606.
Amendment to show jurisdiction allowed.
— Former statute called for an affirmative showing on the face of the papers as to jurisdictional matters, and where it did not so appear upon any appeal, and yet the jurisdiction actually existed, it was the duty of district court to allow the necessary amendment to show such fact.
Tietjen v. McCoy
, 1918-NMSC-074, 24 N.M. 164, 172 P. 1144 (decided under former law).
Amendment not sufficient.
— Amendment to complaint to show jurisdiction by means of a paper clipped to the complaint was not sufficient.
Bell v. Beck
, 1939-NMSC-035, 43 N.M. 315, 92 P.2d 992 (decided under former law).
Error in refusal to permit amendment.
— In action of replevin begun in justice of peace court (now magistrate court) and appealed to district court, district court erred in refusing to permit plaintiff to amend affidavit of replevin in controversy.
Romero v. Luna
, 1892-NMSC-011, 6 N.M. 440, 30 P. 855 (decided under former law).
Leave to amend not to be withheld.
— Power of district court to exercise its discretion in giving leave to amend was not to be withheld in cases of appeal, when it appeared that justice of the peace (now magistrate) had jurisdiction of subject matter in controversy and of parties in the case.
Sanchez v. Luna
, 1857-NMSC-012, 1 N.M. 238 (decided under former law).
Grant of summary judgment not error.
— Where there was nothing to show the trial court failed to consider the matters he was required to consider by Rule 56(c) [now Rule 1-056C], N.M.R. Civ. P., grant of summary judgment regardless of magistrate's findings was not error.
Southern Union Gas Co. v. Taylor
, 1971-NMSC-067, 82 N.M. 670, 486 P.2d 606.
Scope of appeal.
— Where defendant did not challenge his convictions on appeal and did not claim to be aggrieved, but only challenged constitutionality of a federal statute and its effect on him, defendant lacked the right to appeal his conviction.
State v. Garcia
, 2003-NMCA-045, 133 N.M. 444, 63 P.3d 1164.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 47 Am. Jur. 2d Justices of the Peace § 96.
51 C.J.S. Justices of the Peace §§ 151, 153(8), 154(3), 174, 190, 226.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 14 - Municipal Courts › Section 35-14-3 - Judges; qualifications; bond; salary.

The qualifications of municipal judges, bond required and salary received shall be provided by ordinance of the municipality.
History:
1953 Comp., § 37-1-3, enacted by Laws 1961, ch. 208, § 3.
ANNOTATIONS
Repeals.
— Laws 1961, ch. 208, § 11, repealed former 37-1-1 to 37-1-9, 1953 Comp., relating to the creation of a police court in cities and towns, defining its jurisdiction, providing for the election of a police judge, providing for statements and the filling of vacancies.
Constitutionality of section.
— This section on its face is not discriminatory and does not present an equal protection problem since New Mexico's scheme does not establish classes of municipalities, some of which must have attorney judges and other which do not, and once a New Mexican municipality has determined the minimum educational and other qualifications for its municipal court judges, all defendants in that municipality are tried by judges that have met these qualifications, so that at the individual municipal court level there is equal treatment for all defendants with respect to the judges having satisfied the same qualifications. Furthermore, in New Mexico there exists an ameliorative feature which insures that if defendants tried before a nonattorney municipal judge want to have an attorney judge, then after trial, or upon a nolo contendere or a guilty plea, they could seek an immediate trial de novo in district court before an attorney judge.
Tsiosdia v. Rainaldi
, 1976-NMSC-011, 89 N.M. 70, 547 P.2d 553.
Holding of other office permissible.
— It is permissible for a police judge to also hold a job in the town administration as traffic violations bureau director, and it is permissible for him to draw compensation for said added duty. 1958 Op. Att'y Gen. No. 58-221 (rendered under former law).
Remuneration of municipal judge generally.
— Until such time as a valid ordinance provides for his salary, a municipality may not legally pay remuneration to its magistrate although it may reimburse the judge for his legitimate expenses. 1969 Op. Att'y Gen. No. 69-129.
Municipal judge is public officer
for purposes of N.M. Const., art. IV, § 27. 1979 Op. Att'y Gen. No. 79-27.
Effect of arrests and convictions on salary.
— Section 66-8-137 NMSA 1978 provides that a municipal magistrate's salary cannot depend upon arrests and convictions for violations under the Motor Vehicle Code (66-1-1 NMSA 1978 et seq.). 1969 Op. Att'y Gen. No. 69-129.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 46 Am. Jur. 2d Judges § 11.
48A C.J.S. Judges § 1 et seq.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 14 - Municipal Courts › Section 35-14-4 - Election; term; vacancy.

A. Municipal judges shall be elected, for terms of four years, at a regular municipal election.
B. In municipalities with a population of thirty thousand persons or more, additional judges may be elected if the municipal governing body determines the workload of the court requires more than one judge. Municipalities with a population of less than thirty thousand persons shall have only one municipal judge.
C. The governing body of any municipality may fill vacancies by appointment of a municipal judge to serve until the next regular municipal election.
History:
1953 Comp., § 37-1-4, enacted by Laws 1961, ch. 208, § 4; 1967, ch. 215, § 2; 1973, ch. 208, § 2; 1993, ch. 222, § 1.
ANNOTATIONS
Repeals.
— Laws 1961, ch. 208, § 11, repealed former 37-1-1 to 37-1-9, 1953 Comp., relating to the creation of a police court in cities and towns, defining its jurisdiction, providing for the election of a police judge, providing for statements and the filling of vacancies.
The 1993 amendment,
effective June 18, 1993, substituted "thirty thousand" for "fifty thousand" in both sentences of Subsection B.
Length of term statutorily mandated.
— The city charter of a non-homerule municipality may not provide municipal judges with terms of a different length than those mandated by statute. 1987 Op. Att'y Gen. No. 87-16.
Where no successor chosen.
— Where no successor was chosen as provided by law, i.e., no election was held, there now exists by virtue of 10-3-1 NMSA 1978 a "vacancy" which can be filled by appointment under this section. Once he is appointed and qualifies by giving his bond, he takes office from the incumbent who remains in that office under N.M. Const., art. XX, § 2. 1956 Op. Att'y Gen. No. 56-6452 (rendered under former law).
Municipal judge must be a resident of the municipality
which he serves. 1969 Op. Att'y Gen. No. 69-11.
Municipal judge is public officer
for purposes of N.M. Const., art. IV, § 27. 1979 Op. Att'y Gen. No. 79-27.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 46 Am. Jur. 2d Judges §§ 9, 239, 240.
48A C.J.S. Judges § 12 et seq.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 14 - Municipal Courts › Section 35-14-5 - Temporary incapacity or absence of a municipal judge.

Any registered voter of a municipality in which a municipal judge is incapacitated or absent may be appointed to the office of the municipal judge during his temporary incapacity or absence, and he shall hear and determine cases arising under municipal ordinances while sitting as municipal judge. The governing body may establish a procedure by ordinance for appointment.
History:
1953 Comp., § 37-1-5, enacted by Laws 1961, ch. 208, § 5; 1973, ch. 88, § 1.
ANNOTATIONS
Repeals.
— Laws 1961, ch. 208, § 11, repealed former 37-1-1 to 37-1-9, 1953 Comp., relating to the creation of a police court in cities and towns, defining its jurisdiction, providing for the election of a police judge, providing for statements and the filling of vacancies.
Separation of powers.
— A municipal ordinance establishing a procedure for filling a temporary vacancy on the municipal court did not violate the separation of powers doctrine.
Aguilar v. City Comm'n
, 1997-NMCA-045, 123 N.M. 333, 940 P.2d 181.
Scope of city authority.
— City commission acted within its authority in establishing a procedure for filling a temporary vacancy on the municipal court.
Aguilar v. City Comm'n
, 1997-NMCA-045, 123 N.M. 333, 940 P.2d 181.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 46 Am. Jur. 2d Judges §§ 248 et seq.
48A C.J.S. Judges § 161 et seq.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 14 - Municipal Courts › Section 35-14-6 - Duties of temporary municipal judge.

The requirements of law relating to money collected, monthly reports, itemized statements and penalties apply to temporary municipal judges.
History:
1953 Comp., § 37-1-6, enacted by Laws 1961, ch. 208, § 6.
ANNOTATIONS
Repeals.
— Laws 1961, ch. 208, § 11, repealed former 37-1-1 to 37-1-9, 1953 Comp., relating to the creation of a police court in cities and towns, defining its jurisdiction, providing for the election of a police judge, providing for statements and the filling of vacancies.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 46 Am. Jur. 2d Judges §§ 248 et seq.
48A C.J.S. Judges § 161 et seq.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 14 - Municipal Courts › Section 35-14-7 - Monthly reports and remittances.

Each municipal judge shall make monthly written reports to the governing body of all money collected by him; provided he shall account separately for costs collected pursuant to Section 35-14-11 NMSA 1978. The reports shall be filed and the money collected shall be paid to the municipality not later than the tenth day of the month following collection.
History:
1953 Comp., § 37-1-7, enacted by Laws 1961, ch. 208, § 7; 1983, ch. 134, § 5.
ANNOTATIONS
Repeals.
— Laws 1961, ch. 208, § 11, repealed former 37-1-1 to 37-1-9, 1953 Comp., relating to the creation of a police court in cities and towns, defining its jurisdiction, providing for the election of a police judge, providing for statements and the filling of vacancies.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 14 - Municipal Courts › Section 35-14-8 - Itemized statement.

All required reports shall include an itemized statement showing the different amounts collected, the purpose of collection, the name of the person paying and the date of payment.
History:
1953 Comp., § 37-1-8, enacted by Laws 1961, ch. 208, § 8.
ANNOTATIONS
Repeals.
— Laws 1961, ch. 208, § 11, repealed former 37-1-1 to 37-1-9, 1953 Comp., relating to the creation of a police court in cities and towns, defining its jurisdiction, providing for the election of a police judge, providing for statements and the filling of vacancies.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 14 - Municipal Courts › Section 35-14-9 - Penalty.

Any municipal judge violating any provision relating to making reports or remitting money collected is guilty of a misdemeanor and shall be fined not more than two hundred dollars ($200) or imprisoned not more than ninety days, or both.
History:
1953 Comp., § 37-1-9, enacted by Laws 1961, ch. 208, § 9.
ANNOTATIONS
Repeals.
— Laws 1961, ch. 208, § 11, repealed former 37-1-1 to 37-1-9, 1953 Comp., relating to the creation of a police court in cities and towns, defining its jurisdiction, providing for the election of a police judge, providing for statements and the filling of vacancies.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 14 - Municipal Courts › Section 35-14-10 - Municipal judges; training required.

Each municipal judge shall annually as a condition of discharging the duties of that office, successfully complete a judicial training program conducted under the authority, or with the approval of, the court administrator, unless exempted from this requirement by the chief justice of the supreme court. No municipal judge holding office after December 31, 1973 shall receive any salary until he has successfully completed, or been exempted from, the required judicial training program.
History:
1953 Comp., § 37-1-10, enacted by Laws 1973, ch. 157, § 1.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 14 - Municipal Courts › Section 35-14-12 - Municipal courts; automation required.

By July 1, 1996, each municipal court shall have the capability of providing on a timely basis electronic records in a format specified by the judicial information system council tracking convictions of violations of municipal ordinances prohibiting driving while under the influence of intoxicating liquor or drugs and prohibiting domestic violence.
History:
Laws 1993, ch. 67, § 2.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-1 - Proceedings to enforce ordinances; plaintiff; appeals.

A. All actions to enforce any ordinance of any municipality shall be brought in the name of the municipality as plaintiff. No prosecution, conviction or acquittal for the violation of an ordinance is a defense to any other prosecution of the same party for any other violation of an ordinance, although different causes of action existed at the same time and, if united, would have exceeded the jurisdiction of the court.
B. The plaintiff or defendant may appeal to the district court from the judgment of any municipal court within fifteen days after judgment and sentence rendered in the municipal court. Failure of either party to appeal within the prescribed time is jurisdictional and an appeal not timely filed shall not be entertained by the district court.
History:
Laws 1884, ch. 39, § 17; C.L. 1884, § 1625; C.L. 1897, § 2405; Code 1915, § 3627; C.S. 1929, § 90-907; 1941 Comp., § 39-201; 1953 Comp., § 38-1-1; Laws 1959, ch. 169, § 1; 1961, ch. 208, § 10; 1963, ch. 10, § 1; 1969, ch. 35, § 1.
ANNOTATIONS
No chilling effect on right to appeal.
— There was no "chilling effect" on defendant's right to appeal his conviction for violation of certain municipal ordinances where he took an appeal to the district court and requiring defendant to choose between accepting the risk of a greater sentence or foregoing his appeal was not constitutionally impermissible under the facts of the case since the choice was defendant's.
City of Farmington v. Sandoval
, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.
Validity of ordinances authorizing commitment.
— If a fine is imposed, an order may be made for commitment until the fine and costs are paid; although such proceedings are not criminal, being at most quasi-criminal, ordinances authorizing commitment are valid.
In re Roe Chung
, 1897-NMSC-016, 9 N.M. 130, 49 P. 952.
City attorney may represent municipality.
— City attorney may prosecute violations of municipal ordinances in district court without authorization from the district attorney.
City of Roswell v. Smith
, cert. denied, 2006-NMCA-040, 139 N.M. 381, 133 P.3d 271, 2006-NMCERT-004, 139 N.M. 429, 134 P.3d 120.
Docket fee only applicable to appeals brought under this article.
— A docket fee is applicable to appeals from the municipal court to the district court only when brought from an action enforcing ordinances under 35-15-1 NMSA 1978 et seq. 1980 Op. Att'y Gen. No. 80-18.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 56 Am. Jur. 2d Municipal Corporations, Counties and Other Political Subdivisions § 414.
62 C.J.S. Municipal Corporations §§ 322, 325, 930.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-2 - Pleading existence of ordinance provisions violated.

In all actions brought to enforce any ordinance, it shall be sufficient to state in the complaint or affidavit the number of the section and title of the ordinance violated without stating said section or ordinance in full or the substance thereof.
History:
Laws 1884, ch. 39, § 104; C.L. 1884, § 1712; C.L. 1897, § 2517; Code 1915, § 3629; C.S. 1929, § 90-909; 1941 Comp., § 39-202; 1953 Comp., § 38-1-2; Laws 1959, ch. 169, § 2; 1975, ch. 87, § 1.
ANNOTATIONS
Complaint sufficient.
— Complaint charging that defendant "did willfully and unlawfully commit the offense of selling intoxicating liquor to wit: whiskey, etc." was sufficient although it did not state it was sold for beverage purposes.
City of Clovis v. Dendy
, 1931-NMSC-007, 35 N.M. 347, 297 P. 141.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 61A Am. Jur. 2d Pleading § 9 et seq.
62 C.J.S. Municipal Corporations §§ 329, 333.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-4 - Service of process.

A. In the county in which the municipality whose ordinances are alleged to have been violated is located, a law enforcement officer with jurisdiction in that county may serve any municipal court process or make any arrests authorized by law to be made.
B. In counties adjacent to the county in which the municipality whose ordinances are alleged to have been violated is located, a law enforcement officer with jurisdiction in that county may serve any municipal court process or make any arrests authorized by law to be made, except for any service or arrest emanating from parking violations alleged to have occurred in a municipality located in another county.
History:
Laws 1884, ch. 39, § 21; C.L. 1884, § 1629; C.L. 1897, § 2409; Code 1915, § 3631; C.S. 1929, § 90-911; 1941 Comp., § 39-204; 1953 Comp., § 38-1-4; 2017, ch. 27, § 1.
ANNOTATIONS
The 2017 amendment,
effective July 1, 2017, rewrote the language of the section to expand the jurisdiction for municipal courts for issuing bench warrants, except for parking violations; added the catchline; deleted the former language in its entirety, which provided that a constable or sheriff could serve any process or make any arrests authorized to be made by any city or town officer; and added Subsections A and B.
Municipal court's authority to order service of warrants in adjacent counties and to order the transport of prisoners arrested in adjacent counties.
— This section permits a law enforcement officer, with jurisdiction in a county adjacent to the county in which the municipality whose ordinances are alleged to have been violated, "to serve any municipal court process or make any arrests authorized by law to be made," with a limited exception for parking violations; a reasonable interpretation of this section is that it empowers a municipal court to order service of warrants in a county adjacent to the county in which the municipal court sits by a law enforcement officer authorized to make arrests in such adjacent county, and a municipal court may order an adjacent municipality's executive branch to transport prisoners arrested in adjacent counties to the extent such transport is necessary for the municipal court to administer prosecution of such prisoners.
Service of Warrants in Adjacent Counties and Transportation of Prisoners Therefrom
(12/1/2022), Att'y Gen. Adv. Ltr. 2022-10.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-5 - Maximum time for commencing proceeding for enforcement or [of] ordinances.

All prosecutions for the commission of any offense made punishable by ordinance shall be commenced within one year after the violation and shall be barred thereafter.
History:
Laws 1884, ch. 39, § 22; C.L. 1884, § 1630; C.L. 1897, § 2410; Code 1915, § 3632; C.S. 1929, § 90-912; 1941 Comp., § 39-205; 1953 Comp., § 38-1-5; Laws 1959, ch. 169, § 4.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Authority of county officer.
— The unequivocal language of this section permits a constable of the county to make the same arrests without a warrant that a city or town officer is authorized to make. 1964 Op. Att'y Gen. No. 64-65.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 62 C.J.S. Municipal Corporations § 324.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-6 - Custody of prisoners.

In case any such person shall be confined in any county jail it shall be the duty of the sheriff or jailer to deliver him to the appropriate municipal officer whenever such prisoner is to work for such municipality but such prisoner shall be returned to such county jail each night.
History:
Laws 1905, ch. 84, § 2; Code 1915, § 3634; C.S. 1929, § 90-914; 1941 Comp., § 39-207; 1953 Comp., § 38-1-7; Laws 1959, ch. 169, § 6.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-8 - Judgment on appeal; recovery on bond.

If the judgment of the municipal court in the action is affirmed or rendered against the defendant on appeal, the district court shall enter judgment imposing the same, a greater or a lesser penalty as that imposed in the municipal court in the action. If the defendant fails to appear at the time set for hearing of the appeal in the district court without a sufficient showing for a continuance, the district court shall affirm the judgment and sentence of the municipal court and render judgment against the defendant and his sureties on the appeal bond. When the municipal court has imposed a jail sentence upon the defendant, the district court shall issue a bench warrant for the immediate arrest and confinement of the defendant.
History:
Laws 1919, ch. 112, § 4; C.S. 1929, § 79-525; 1941 Comp., § 39-211; 1953 Comp., § 38-1-11; Laws 1969, ch. 35, § 3; 1975, ch. 212, § 2.
ANNOTATIONS
Sentence increased.
— Because the district court did not suspend any of the 30-day jail term it imposed (as had the municipal court), the effect was an increase in the amount of jail time required to be served, which was an increase in the sentence.
City of Farmington v. Sandoval
, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 62 C.J.S. Municipal Corporations § 378.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-9 - [Municipality to have free process; no costs charged to municipality.]

That the municipality shall have free process in the district court in all cases of appeals for violations of municipal ordinances, and in no case shall any costs be assessed against the municipality in such cases.
History:
Laws 1919, ch. 112, § 5; C.S. 1929, § 79-526; 1941 Comp., § 39-212; 1953 Comp., § 38-1-12.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For trial de novo on appeal,
see
39-3-1 NMSA 1978.
Effect of trial de novo.
— A trial de novo is a trial "anew," as if no trial whatever had been had in the municipal court.
City of Farmington v. Sandoval
, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.
Constitutionality where greater sentence.
— The greater sentence imposed by the district court for violation of certain municipal ordinances after a trial de novo did not deprive defendant of due process, nor did it amount to double jeopardy.
City of Farmington v. Sandoval
, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.
Correctness of municipal proceedings not reviewed.
— In a de novo trial the district court does not review the correctness of the proceedings in the municipal court.
City of Farmington v. Sandoval
, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.
Hazard of greater sentence not unfair.
— The hazard of a greater sentence upon trial de novo for violation of municipal ordinance is not fundamentally unfair.
City of Farmington v. Sandoval
, 1977-NMCA-022, 90 N.M. 246, 561 P.2d 945.
Defendant not entitled to jury.
— In prosecutions under municipal ordinances, defendant is not, on appeal to district court, entitled to jury trial. The constitution does not grant jury trial but preserves such right already existing by statute.
City of Clovis v. Dendy
, 1931-NMSC-007, 35 N.M. 347, 297 P. 141.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 56 Am. Jur. 2d Municipal Corporations, Counties, and Other Political Subdivisions § 420.
62 C.J.S. Municipal Corporations § 379.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-10 - Trial de novo without jury.

All trials upon appeals by a defendant from the municipal court to the district court for violations of municipal ordinances shall be de novo and shall be tried before the court without a jury.
History:
Laws 1919, ch. 112, § 6; C.S. 1929, § 79-527; 1941 Comp., § 39-213; 1953 Comp., § 38-1-13; Laws 1959, ch. 169, § 8.
ANNOTATIONS
Effect of trial de novo.
— A trial de novo resulting in an acquittal precludes a consideration as to what has gone on before. Therefore, for the purposes of a summary judgment motion, it cannot be said that there is still a finding of probable cause in the municipal court below.
Miera v. Waltemeyer
, 1982-NMCA-007, 97 N.M. 588, 642 P.2d 191, cert. quashed, 98 N.M. 51, 644 P.2d 1040.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-11 - Municipality may appeal.

The municipality shall have the right to appeal to the district court from the municipal court and to the supreme court from any decision of the district court in every case brought for the violation of an ordinance of said municipality. The municipality shall be allowed an appeal from the municipal court to the district court only when the municipal court has held an ordinance or section thereof invalid or unconstitutional or that the complaint is not legally sufficient.
History:
Laws 1935, ch. 28, § 1; 1941 Comp., § 39-214; 1953 Comp., § 38-1-14; Laws 1959, ch. 169, § 9.
ANNOTATIONS
Right of municipality to appeal from municipal court to district court.
— N.M. Const., art. VI, § 27 confers upon a municipality a constitutional right to appeal an adverse final judgment or decision from a municipal to district court and the legislature may not abridge that right.
City of Las Cruces v. Sanchez
, 2007-NMSC-042, 142 N.M. 243, 164 P.3d 942.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 56 Am. Jur. 2d Municipal Corporations §§ 386 to 397.
Right of municipal corporation to review of an unfavorable decision in an action or prosecution for violation of a municipal ordinance, 11 A.L.R.4th 399.
62 C.J.S. Municipal Corporations § 364.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-12 - Fines and forfeitures in justice court [magistrate court]; collections go to municipal treasury.

Justices of the peace [magistrates] in municipalities of the state of New Mexico, when sitting as municipal judges, shall turn into [in to] the municipality all fines collected for the violation of such municipal ordinances and all moneys collected from forfeited bonds or recognizances in such justice of the peace courts [magistrate courts] when being held as municipal courts shall be turned into [in to] the municipality.
History:
Laws 1921, ch. 42, § 1; C.S. 1929, § 79-216; 1941 Comp., § 39-216; 1953 Comp., § 38-1-16; Laws 1959, ch. 169, § 11.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
The office of justice of the peace was abolished and all jurisdiction, powers and duties were transferred to magistrate courts.
See
35-1-38 NMSA 1978.
Cross references.
— For magistrate court as "justice of the peace",
see
35-1-38 NMSA 1978.
2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 15 - Violations of Municipal Ordinances › Section 35-15-13 - Fines and forfeitures assessed on appeal; collections go to municipal treasury.

All fines assessed in the district court upon appeals from the municipal courts, including such moneys as may be paid into the said district court upon forfeited bonds or recognizances for defendants charged with municipal offenses, shall be turned over to the municipality.
History:
Laws 1921, ch. 42, § 2; C.S. 1929, § 79-217; 1941 Comp., § 39-217; 1953 Comp., § 38-1-17; Laws 1959, ch. 169, § 12.