2023 New Mexico Statutes › Chapter 38 - Trials › Article 3 - Venue; Change of Judge › Section 38-3-1 - County in which civil action in district court may be commenced.

All civil actions commenced in the district courts shall be brought and shall be commenced in counties as follows and not otherwise:
A. First, except as provided in Subsection F of this section relating to foreign corporations, all transitory actions shall be brought in the county where either the plaintiff or defendant, or any one of them in case there is more than one of either, resides; or second, in the county where the contract sued on was made or is to be performed or where the cause of action originated or indebtedness sued on was incurred; or third, in any county in which the defendant or either of them may be found in the judicial district where the defendant resides.
B. When the defendant has rendered himself liable to a civil action by any criminal act, suit may be instituted against the defendant in the county in which the offense was committed or in which the defendant may be found or in the county where the plaintiff resides.
C. When suit is brought for the recovery of personal property other than money, it may be brought as provided in this section or in the county where the property may be found.
D. (1) When lands or any interest in lands are the object of any suit in whole or in part, the suit shall be brought in the county where the land or any portion of the land is situate.
(2) Provided that where such lands are located in more than one county and are contiguous, that suit may be brought as to all of the lands in any county in which a portion of the lands is situate, with the same force and effect as though the suit had been prosecuted in each county in which any of the lands are situate. In all such cases in which suit is prosecuted in one county as to contiguous lands in more than one county, notice of lis pendens shall be filed pursuant to Sections 38-1-14 and 38-1-15 NMSA 1978 in each county. For purposes of service of process pursuant to Rule 4 [Rule 1-004 NMRA] of the Rules of Civil Procedure for the District Courts, any such suit involving contiguous lands located in more than one county shall be deemed pending in each county in which any portion of the land is located from the date of filing of the lis pendens notice.
E. Suits for trespass on land shall be brought as provided in Subsection A of this section or in the county where the land or any portion of the land is situate.
F. Suits may be brought against transient persons or non-residents in any county of this state, except that suits against foreign corporations admitted to do business and which designate and maintain a statutory agent in this state upon whom service of process may be had shall only be brought in the county where the plaintiff, or any one of them in case there is more than one, resides or in the county where the contract sued on was made or is to be performed or where the cause of action originated or indebtedness sued on was incurred or in the county where the statutory agent designated by the foreign corporation resides.
G. Suits against any state officers as such shall be brought in the court of the county in which their offices are located, at the capital or in the county where a plaintiff, or any one of them in case there is more than one, resides, except that suits against the officers or employees of a state educational institution as defined in Article 12, Section 11 of the constitution of New Mexico, as such, shall be brought in the district court of the county in which the principal office of the state educational institution is located or the district court of the county where the plaintiff resides.
History:
Laws 1875-1876, ch. 2, § 1; C.L. 1884, § 1893; C.L. 1897, § 2950; Laws 1899, ch. 80, § 16; Code 1915, § 5567; C.S. 1929, § 147-101; 1941 Comp., § 19-501; Laws 1951, ch. 121, § 1; 1953 Comp., § 21-5-1; Laws 1955, ch. 258, § 1; 1957, ch. 124, § 1; 1981, ch. 70, § 1; 1988, ch. 8, § 1.
ANNOTATIONS
Cross references.
— For service of process outside of state,
see
38-1-16 NMSA 1978.
For secretary of state as agent for service of process,
see
13-4-22 NMSA 1978.
For ability to serve civil process as prerequisite to transfer of lands between United States and New Mexico,
see
19-2-3 NMSA 1978.
For venue in criminal cases,
see
30-1-14 NMSA 1978.
For magistrate court jurisdiction,
see
35-3-6 NMSA 1978.
For venue of actions for specific performance of contracts for sale of real estate,
see
42-7-1 NMSA 1978.
For jurisdiction under Uniform Owner-Resident Relations Act,
see
47-8-10 NMSA 1978.
For effect of Rules of Civil Procedure for District Courts upon venue of actions,
see
Rule 1-082 NMRA.
For civil process in the district court,
see
Rule 1-004 NMRA.
The 1988 amendment,
effective February 18, 1988, made minor stylistic changes throughout the section; substituted "Rule 4" for "Rule 4(g)" in Subsection D(2); and substituted "or in the county where a plaintiff, or any one of them in case there is more than one, resides" for "and not elsewhere" in Subsection G.
I. GENERAL CONSIDERATION.
A domestic corporation does not reside in a county for venue purposes
solely because its registered agent for service of process is located therein.
Blancett v. Dial Oil Company
, 2008-NMSC-011, 143 N.M. 368, 176 P.3d 1100.
Classification of foreign corporations not violative of equal protection.
— The classification of foreign corporations in this section is not so arbitrary or unreasonable as to constitute a denial of equal protection.
Aetna Fin. Co. v. Gutierrez
, 1981-NMSC-090, 96 N.M. 538, 632 P.2d 1176,
overruled on other grounds by
Cooper v. Chevron USA
, 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61.
Application of amended section to "pending" cases.
— Section 34 of article IV of the New Mexico Constitution, which prohibits the legislature from changing the rules of procedure applicable to any pending case, requires that venue in a suit filed prior to 1990 be governed by the pre-1990 version of 38-3-1 NMSA 1978, notwithstanding the fact that the jurisdiction of the state court was suspended while the case was removed to federal court and subsequently remanded back to the state court. Appellant's argument that as a result of the case's removal from state court to federal district court the case was not "pending" when the venue statute was amended was erroneous.
Elephant Butte Irrigation Dist. v. Regents of N.M. State Univ.
, 1993-NMCA-009, 115 N.M. 229, 849 P.2d 372.
Effect of supreme court decision after venue ruling.
— Unsuccessful plaintiff, who had opposed defendant's motion for transfer of venue on grounds of forum non conveniens, was not entitled to Rule 1-060 NMRA relief based on a case decided subsequent to the ruling on the venue motion.
Stein v. Alpine Sports
, 1998-NMSC-040, 126 N.M. 258, 968 P.2d 769.
Venue defined.
— The venue of an action is its place of trial.
Peisker v. Chavez
, 1942-NMSC-004, 46 N.M. 159, 123 P.2d 726.
This venue statute is not to be equated with jurisdiction.
Jones v. N.M. State Hwy. Dep't
, 1979-NMSC-033, 92 N.M. 671, 593 P.2d 1074.
Jurisdiction and venue distinguished.
— Venue in the technical meaning of the term, means the place where a case is to be tried, whereas jurisdiction does not refer to the place of trial, but to the power of the court to hear and determine the case.
Kalosha v. Novick
, 1973-NMSC-010, 84 N.M. 502, 505 P.2d 845.
Section does not provide for the venue of cross-claims.
Hughes v. Joe G. Maloof & Co.
, 1973-NMCA-002, 84 N.M. 516, 505 P.2d 859.
Dismissal without prejudice for improper venue is a final, appealable order.
Sunwest Bank v. Nelson
, 1998-NMSC-012, 125 N.M. 170, 958 P.2d 740.
Applicability of section to condemnation proceedings.
— In the absence of statute, there is no right to change the venue in a condemnation proceedings, even if such a proceeding is an action at law, and even though a change of venue is authorized by statute, a party is not entitled to such change if no good reason therefor is shown. Under a statute authorizing a change of venue in a civil action, according to some authorities, a change of venue may be had in a condemnation proceeding, on a timely application therefor, and the court to which the case is transmitted obtains jurisdiction to dispose of the condemnation proceeding. On the other hand, according to other authorities, a change of venue of the proceeding cannot be had under such statute, since a condemnation proceeding is a special proceeding.
City of Tucumcari v. Magnolia Petroleum Co.
, 1953-NMSC-046, 57 N.M. 392, 259 P.2d 351.
Waiver of venue.
— This section and its various subsections deal merely with venue as distinguished from jurisdiction, and the rights conferred by such section and its subsections may be waived.
Kalosha v. Novick
, 1973-NMSC-010, 84 N.M. 502, 505 P.2d 845.
Lack or want of jurisdiction of a court over the parties which is dependent upon plaintiff's residence is waived by the defendant by failure to properly present the issue prior to answering to the merits.
Romero v. Hopewell
, 1922-NMSC-037, 28 N.M. 259, 210 P. 231.
Forum non conveniens.
— The doctrine of forum non conveniens is inapplicable to motions to transfer a lawsuit intrastate from one county to another.
First Fin. Trust Co. v. Scott
, 1996-NMSC-065, 122 N.M. 572, 929 P.2d 263.
II. TRANSITORY ACTIONS GENERALLY.
Compiler's notes.
— The 1915 Code compilers deleted from the end of Subsection A: "Provided, That if suit is brought against any defendant out of the county but within the judicial district in which he resides, process shall be personally served on such defendant not less than fifteen days before the first day of the term to which the process shall be returnable, and if brought in any judicial district other than that in which the defendant or either of them resides, process shall be served on such defendant or defendants not less than thirty days before the first day of the term to which said process may be returnable."
Residency of national banking association.
— A national banking association with a principal place of business in a county in New Mexico is a resident of New Mexico and of that county for purposes of venue selection under Subsection A.
Sunwest Bank v. Nelson
, 1998-NMSC-012, 125 N.M. 170, 958 P.2d 740.
When there are two plaintiffs in a lawsuit action may be brought in the county in which either of them resides.
Torres v. Gamble
, 1966-NMSC-024, 75 N.M. 741, 410 P.2d 959.
Where transitory action is brought against more than one defendant, the residence of one of these defendants will determine
the venue of an action against all if such party is essential to the action and has not been joined merely for the purpose of bringing the action in the county of his abode.
Teaver v. Miller
, 1949-NMSC-043, 53 N.M. 345, 208 P.2d 156.
Venue of a transitory action in the nature of quo warranto
may be in the county of residence of either plaintiff or defendant.
State ex rel. Parsons Mining Co. v. McClure
, 1913-NMSC-034, 17 N.M. 694, 133 P. 1063.
Action in the nature of quo warranto in intrusion into office proceeding is governed by this section and must be brought in the county where the intrusion took place.
State ex rel. Hannett v. District Court
, 1925-NMSC-004, 30 N.M. 300, 233 P. 1002.
Action by nonresident.
— Where, at the time of the filing of a medical malpractice action, plaintiff no longer resided in New Mexico, under Subsection A she was required to file suit either in the county where the defendant actually resided, or where the cause of action originated, or in some other county of the judicial district wherein defendant could be actually served with a copy of the complaint and summons.
Hamby v. Gonzales
, 1987-NMCA-057, 105 N.M. 778, 737 P.2d 559, cert. denied, 105 N.M. 720, 737 P.2d 79.
The term "transitory", as used in Subsection A, does not evidence an intent by the legislature to permit a nonresident plaintiff, in her discretion, to select any county within the same judicial district in which to properly file her cause of action against the defendant.
Hamby v. Gonzales
, 1987-NMCA-057, 105 N.M. 778, 737 P.2d 559, cert. denied, 105 N.M. 720, 737 P.2d 79.
Action by environmental improvement division.
— An action by which the environmental improvement division sought an administrative warrant for inspection under the Hazardous Waste Act, Chapter 74, Article 4 NMSA 1978, is a transitory action and venue is controlled by Subsection A of this section, which allows an action to be brought in a county where the plaintiff resides.
N.M. Envtl. Improvement Div. v. Climax Chem. Co.
, 1986-NMCA-137, 105 N.M. 439, 733 P.2d 1322, cert. denied, 105 N.M. 421, 733 P.2d 869.
Tortious injury to land.
— Actions seeking damages or injunctive relief for tortious injury to land are transitory actions subject to the venue rules of Subsection A.
Cooper v. Amerada Hess Corp.
, 2000-NMCA-100, 129 N.M. 710, 13 P.3d 68,
aff'd
sub nom. Cooper v. Chevron U.S.A.
, 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61.
Venue held proper.
— Where civil suit was filed in one county of the judicial district in which defendant resided, but defendant resided in adjoining county, defendant was properly "found in the county" within the meaning of this subsection when, after being informed by sheriff of county where suit was filed that he was to be served with "papers," he drove into that county and picked up the papers.
Empire Fire & Marine Ins. Co. v. Lee
, 1974-NMCA-116, 86 N.M. 739, 527 P.2d 502).
Venue held improper.
— Where suit is between two parties resident in the same county, and arises out of a contract for the sale of real estate made and executed and to be performed in that county, venue is improper when the suit is brought in the county in which the real estate is located.
Rito Cebolla Invs., Ltd. v. Golden W. Land Corp.
, 1980-NMCA-028, 94 N.M. 121, 607 P.2d 659.
III. ACTIONS UPON LIABILITIES ARISING FROM CRIMINAL ACTS.
Venue in wrongful death action between nonresidents.
— The mere fact that the wrongful act complained of may have been criminal in character can have no bearing on the transitory nature of an action to recover damages therefor. The action is transitory, and being transitory it falls squarely within the permissive effect of this section, authorizing suit against a nonresident in any county in the state and as well within the language of Section 41-2-3 NMSA 1978, authorizing a plaintiff in an action against a nonresident growing out of an accident or a collision in which the latter's automobile is involved, to file his complaint in any one of the district courts of the state.
State ex rel. Appelby v. District Court
, 1942-NMSC-046, 46 N.M. 376, 129 P.2d 338.
IV. ACTIONS INVOLVING LAND OR INTERESTS IN LAND GENERALLY.
Suit for foreclosure of mortgage on real estate.
— Venue of suit for the foreclosure of a mortgage on real estate is determined by this section as the county in which the land is situated.
Riverside Irrigation Co. v. Cadwell
, 1916-NMSC-033, 21 N.M. 666, 158 P. 644.
Suit to redeem lands from sale under decree
of court must be brought in the county where the lands are situate.
Catron v. Gallup Fire Brick Co.
, 1929-NMSC-029, 34 N.M. 45, 277 P. 32,
overruled on other grounds by
Kalosha v. Novick
, 1973-NMSC-010, 84 N.M. 502, 505 P.2d 845.
Action to compel execution of conveyance by grantees of land.
— Subsection D applies to a suit to compel grantees of land to execute conveyances vesting title in judgment debtor so as to permit plaintiff to obtain execution on judgment.
Atler v. Stolz
, 1934-NMSC-079, 38 N.M. 529, 37 P.2d 243,
overruled on other grounds by
Kalosha v. Novick
, 1973-NMSC-010, 84 N.M. 502, 505 P.2d 845.
Venue similar to quiet title venue.
— Subsection D(1) is similar to the special venue provision contained in the statute authorizing an action to quiet title, 42-6-1 NMSA 1978. Both permit an action concerning land to be brought in the county in which the land or any portion of it is located.
Gonzales v. Gonzales
, 1993-NMCA-159, 116 N.M. 838, 867 P.2d 1220.
Injunction to prohibit issuance of deed.
— Venue is in the county in which the real estate involved is located when a party seeks an injunction to prohibit another from obtaining a special warranty deed, and also seeks recision of the real estate contract.
Naumburg v. Cummins
, 1982-NMSC-086, 98 N.M. 274, 648 P.2d 313.
Where land involved in suit was originally a part of one county,
but, by various legislative enactments changing the boundaries of counties and creating new counties, it had come to be within the limits of another county, the suit was properly brought within that other county.
Bent v. Maxwell Land Grant & Ry.
, 1884-NMSC-020, 3 N.M. (Gild.) 227, 3 P. 721.
Contiguous parcels in different counties.
— Subsection D(2) requires that tracts located in different counties be contiguous to one another at the time the dispute arises before an exception to the general venue provision is available.
Gonzales v. Gonzales
, 1993-NMCA-159, 116 N.M. 838, 867 P.2d 1220.
Where petition for intervention asserted entitlement to 1/8th interest in oil and gas lease,
the suit was one in which an interest in lands was the object within the meaning of this section.
Heath v. Gray
, 1954-NMSC-087, 58 N.M. 665, 274 P.2d 620.
Action for damages for and injunction restraining further cutting of trees on land.
— While suit for damages for cutting trees on land would be maintainable in county other than that in which the land was situate, where the complaint also sought injunction against further cutting of trees, and to restrain defendant from claiming any interest in the land, it involved an interest in the land, and was maintainable only in the county in which the land was situate.
Jemez Land Co. v. Garcia
, 1910-NMSC-013, 15 N.M. 316, 107 P. 683,
overruled on other grounds by
Kalosha v. Novick
, 1973-NMSC-010, 84 N.M. 502, 505 P.2d 845.
Action for damages only.
— An action against an oil and gas operation alleging property damage and personal injury, but not requesting injunctive relief, does not have land or an interest in land as its object and is not controlled by Subsection D, requiring the suit to be brought in the county where the land is situated.
Cooper v. Chevron U.S.A., Inc.
, 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61.
Declaratory action by city against village to determine authority over subdivision, platting and zoning of certain lands.
— Venue in a declaratory suit by the city of Albuquerque against the village of Corrales and its mayor, to secure a determination of the city's authority over the subdivision, platting and zoning of lands lying within Bernalillo county within five miles of the city's boundary, should have been laid in adjoining Sandoval county where Corrales maintained all of its municipal offices and wherein all the territory it encompassed lay, except for lands which it had purportedly annexed, in Bernalillo county; the subdivision, platting and zoning authority of Albuquerque over the land in question was not an interest in land within the contemplation of Subsection D(1) of this section and the applicable venue statute was 38-3-2 NMSA 1978.
City of Albuquerque v. Village of Corrales
, 1975-NMSC-043, 88 N.M. 185, 539 P.2d 205.
Water rights suit involving state official.
— Venue for a suit governing the adjudication of water rights was properly brought in the county having jurisdiction over the stream system pursuant to Subsection D(1) as opposed to the county wherein the state engineer had his offices pursuant to Subsection (G). Because the county district court wherein the stream system was located properly had venue over the water rights adjudication, 72-4-17 NMSA 1978 required that that court have exclusive jurisdiction over all questions relating to the water rights involved, including those against the state engineer.
Elephant Butte Irrigation Dist. v. Regents of N.M. State Univ.
, 1993-NMCA-009, 115 N.M. 229, 849 P.2d 372.
Waiver of venue.
Kalosha v. Novick
, 1973-NMSC-010, 84 N.M. 502, 505 P.2d 845.
V. ACTIONS FOR TRESPASS UPON LAND.
Waiver of venue.
— The county in which an action shall be tried may be agreed upon by the parties. Or if the county in which the action is brought is not the proper one for the trial thereof, the action may nevertheless be tried therein unless the defendant by proper objection demand that it be tried in the county prescribed by law. But the objection must be raised prior to trial or it will be deemed waived. And any conduct on the part of the defendant manifesting satisfaction with the venue until after the trial, or defendant's abiding by it until the matter has proceeded to a hearing will be sufficient to constitute a waiver.
Heron v. Gaylor
, 1948-NMSC-072, 53 N.M. 44, 201 P.2d 366.
A complaint alleging trespass and nuisance properly filed as a transitory action.
— Where plaintiff filed a complaint alleging trespass and nuisance in connection with the development of a wind farm, claiming that defendants, private companies in the wind energy business, damaged roads, fences, and grazing lands, removed, tampered with, or destroyed "No Trespassing" signs on plaintiff's property, and also created a nuisance by installing an electric grounding system on plaintiff's fence which posed a risk of serious injury or death to people, livestock and game, and where defendants sought dismissal for improper venue, claiming that because the object of plaintiff's complaint is a dispute over ownership of and access to property, the suit must be filed in the county in which the land is located rather than the county in which plaintiff resides, the district court did not err in denying defendants' motion to dismiss because the proper venue for trespass and nuisance actions seeking to restrain future invasions is the county where either the plaintiff or defendant resides, and in this case, the complaint does not have as its object land or any interests in land within the meaning of Subsection (D)(1) of this section, and was therefore properly filed as a transitory action under Subsection (E) and (A) of this section.
Kaywal, Inc. v. Avangrid Renewables
, Inc., 2021-NMCA-037, cert. denied.
VI. ACTIONS AGAINST TRANSIENTS OR NONRESIDENTS.
Foreign corporations with statutory agents in different counties.
— Venue that is proper for one foreign corporation defendant with a statutory agent cannot establish venue for another foreign corporation defendant where the other foreign corporation maintains a statutory agent in a separate county.
Bank of America v. Apache Corporation
, 2008-NMCA-054, 144 N.M. 123, 184 P.3d 435, cert. denied, 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.
Foreign corporation and New Mexico corporation with statutory agents in different counties.
— Venue that is proper for one foreign corporation defendant with a statutory agent may establish venue for a New Mexico corporation defendant even if the New Mexico corporation maintains a statutory agent and a principal place of business in another county.
Bank of America v. Apache Corporation
, 2008-NMCA-054, 144 N.M. 123, 184 P.3d 435, cert. denied, 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.
Venue for a resident defendant
is proper in the county where a defendant foreign corporation's statutory agent resides.
Gardiner v. Galles Chevrolet Company
, 2007-NMSC-052, 142 N.M. 544, 168 P.3d 116.
Appointment of statutory agents.
— Pursuant to 53-17-9 NMSA 1978, a foreign corporation may appoint a non-resident statutory agent which gives the corporation the benefit offered by the venue exceptions of Subsection F.
Cooper v. Chevron U.S.A., Inc.
, 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61.
Foreign corporation with statutory agent.
— Subsection F of this section limits the proper venue in an action against a foreign corporation with a statutory agent.
Baker v. BP American Prod. Co.
, 2005-NMSC-011, 137 N.M. 334, 110 P.3d 1071.
Multiple non-resident defendants.
— In actions with multiple defendants, venue for a non-resident defendant cannot determine venue for a foreign corporation with a statutory agent.
Baker v. BP America Prod. Co.
, 2005-NMSC-011, 137 N.M. 334, 110 P.3d 1071.
Foreign corporations are nonresidents.
— Under the plain and unambiguous language of this section, foreign corporations are considered nonresidents of this state for the purpose of venue. Thus, suits against such corporations fall under the terms of Subsection F, but suits by such corporations are governed by the provisions of Subsection A.
Aetna Fin. Co. v. Gutierrez
, 1981-NMSC-090, 96 N.M. 538, 632 P.2d 1176,
overruled on other grounds by
Cooper v. Chevron USA
, 2002-NMSC-020, 132 N.M. 382, 49 P.3d 61.
Wrongful death action between nonresidents.
— An action for wrongful death, due to an automobile accident, being transitory in character, may be brought anywhere in the state when both plaintiff and defendant are nonresidents.
State ex rel. Appelby v. District Court
, 1942-NMSC-046, 46 N.M. 376, 129 P.2d 338.
Action upon contract against nonresident.
— Although this section provides that suit can be brought where a contract was made or to be performed, the section also provides that a suit can be brought against a nonresident in any county of the state.
Valley Country Club, Inc. v. Mender
, 1958-NMSC-042, 64 N.M. 59, 323 P.2d 1099.
When venue is based on where a contract is to be performed, the court should determine whether the venue chosen by the plaintiff is one where a primary or principal activity of the contract is to take place.
Team Bank v. Meridian Oil, Inc.
, 1994-NMSC-083, 118 N.M. 147, 879 P.2d 779.
VII. ACTIONS AGAINST STATE OFFICERS.
The legislature has expressly localized suits against state officers by virtue of this section.
Tudesque v. N.M. State Bd. of Barber Exam'rs
, 1958-NMSC-128, 65 N.M. 42, 331 P.2d 1104.
Localized suits against state officers.
— The legislature intended that actions against state officers be brought in Santa Fe county and not elsewhere.
State ex rel. State Hwy. Comm'n v. Quesenberry
, 1964-NMSC-043, 74 N.M. 30, 390 P.2d 273.
The words "state officers"
as used in Subsection G of this section does not mean merely the executive department heads elected by the people and as recognized under the constitution, but includes incumbents of offices created by the legislature.
Pollack v. Montoya
, 1951-NMSC-056, 55 N.M. 390, 234 P.2d 336;
see also
Lacy v. Silva
, 1972-NMCA-064, 84 N.M. 43, 499 P.2d 361, cert. denied, 84 N.M. 37, 499 P.2d 355.
Persons and bodies deemed state officers.
— The bureau of revenue (now taxation and revenue department) is a state officer since it is charged with the administration and enforcement of the revenue laws through its commissioner of revenue (now secretary of taxation and revenue).
State ex rel. Bureau of Revenue v. MacPherson
, 1968-NMSC-106, 79 N.M. 272, 442 P.2d 584,
overruled on other grounds by
N.M. Livestock Bd. v. Dose
, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.
The board of barber examiners (now board of barbers and cosmetologists), with statutory situs in Santa Fe, has been clothed by the legislature with powers and duties of statewide scope, the exercise of which involves some portion of the governmental power. Hence the board itself, as well as its component members, is a state officer as such within the meaning of Subsection G of this section.
Tudesque v. N.M. State Bd. of Barber Exam'rs
, 1958-NMSC-128, 65 N.M. 42, 331 P.2d 1104.
The commissioner of revenue (now secretary of taxation and revenue) is a state officer.
State ex rel. Bureau of Revenue v. MacPherson
, 1968-NMSC-106, 79 N.M. 272, 442 P.2d 584,
overruled on other grounds by
N.M. Livestock Bd. v. Dose
, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.
Sovereign power is clearly vested in the office of the commissioner of revenue (now secretary of taxation and revenue) and this office is therefore a state office.
Lacy v. Silva
, 1972-NMCA-064, 84 N.M. 43, 499 P.2d 361, cert. denied, 84 N.M. 37, 499 P.2d 355.
A district director (now division director) of revenue is not autonomous and is not independent, therefore, sovereign power has not been vested with the district director either by the legislature or by the commissioner pursuant to legislative authority and absent a vesting of sovereign power in the district director, he is not an "officer" within the meaning of Subsection G of this section.
Lacy v. Silva
, 1972-NMCA-064, 84 N.M. 43, 499 P.2d 361, cert. denied, 84 N.M. 37, 499 P.2d 355.
Chief of division of liquor control (now director of department of alcoholic beverage control) is a state officer within terms of Subsection G of this section requiring civil actions brought against state officers to be brought in the county where the office is located.
Pollack v. Montoya
, 1951-NMSC-056, 55 N.M. 390, 234 P.2d 336.
State highway commissioners are state officers
within the meaning of this statute.
Jones v. N.M. State Hwy. Dep't
, 1979-NMSC-033, 92 N.M. 671, 593 P.2d 1074.
Section applicable to actions against state officers for acts committed while purporting to act within scope of official authority or capacity.
— Statutes which prescribe venue for suits against state officers, for acts done by virtue of their office, control suits for acts done by them while purporting to act within the scope of authority or official capacity.
Allen v. McClellan
, 1967-NMSC-114, 77 N.M. 801, 427 P.2d 677,
overruled on other grounds by
N.M. Livestock Bd. v. Dose
, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.
Acts committed while purporting to act within scope of official authority or capacity.
— Where it was not asserted that alleged wrongful acts were committed by defendants while purporting to act within the scope of their official authority or capacity, the provisions of this section were not applicable.
Allen v. McClellan
, 1967-NMSC-114, 77 N.M. 801, 427 P.2d 677,
overruled on other grounds by
N.M. Livestock Bd. v. Dose
, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.
Where plaintiff's claim was that the conduct of the district director (now division director) of revenue which gave rise to the filing of the criminal complaint was entirely outside the scope of his employment with the state of New Mexico and plaintiff sought damages only against the district director and on the basis of acts outside the scope of his employment, this section was not applicable.
Lacy v. Silva
, 1972-NMCA-064, 84 N.M. 43, 499 P.2d 361, cert. denied, 84 N.M. 37, 499 P.2d 355.
Injunctive proceedings against state officers.
— Statutes which prescribe venue for suits against state officers, for acts done by virtue of their office, control suits for acts done by them while purporting to act within the scope of authority or official capacity. These same rules apply to suits for injunction against such officers.
Allen v. McClellan
, 1967-NMSC-114, 77 N.M. 801, 427 P.2d 677,
overruled on other grounds by
N.M. Livestock Bd. v. Dose
, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.
Mandamus proceedings against state officers.
— This section cannot be considered as a means of ousting a court of jurisdiction once that jurisdiction has attached; and this is particularly true where the state commission originally sought the aid of the court in another county by seeking relief, such as, in the condemnation of property. Therefore, Subsection G is not controlling, and it was within the jurisdiction of the trial court to issue, in the primary case, its writ of mandamus against appellant, which had initially applied to that same court for relief.
State ex rel. State Hwy. Comm'n v. Quesenberry
, 1964-NMSC-043, 74 N.M. 30, 390 P.2d 273.
Section inapplicable to action for release of funds held by department.
— An action for the release of funds held by the human services department [health care authority department] pursuant to a court order is not a "suit against a state officer" but is an exercise by a court of its continuing jurisdiction; thus, this section is inapplicable.
In re Estate of Guerra
, 1981-NMCA-063, 96 N.M. 608, 633 P.2d 716.
Section requires only venue be proper when action is commenced.
Valdez v. Ballenger
, 1978-NMSC-055, 91 N.M. 785, 581 P.2d 1280.
Suits against state officers may be brought in Santa Fe county,
where the capital is located.
Jacobs v. Stratton
, 1980-NMSC-091, 94 N.M. 665, 615 P.2d 982.
Subsection G is not jurisdictional;
prior cases so holding are overruled.
N.M. Livestock Bd. v. Dose
, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.
Venue should not be equated with jurisdiction in suits against state,
its officers or employees.
N.M. Livestock Bd. v. Dose
, 1980-NMSC-022, 94 N.M. 68, 607 P.2d 606.
Applicability of Subsection G to state educational institutions.
— This section, not 41-4-18 NMSA 1978, the venue provision of the Tort Claims Act, applies to all tort actions brought against state educational institutions or employees thereof.
Clothier v. Lopez
, 1985-NMSC-088, 103 N.M. 593, 711 P.2d 870.
Law reviews.
— For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M.L. Rev. 1 (1981).
For article, "Survey of New Mexico Law, 1979-80: Civil Procedure," see 11 N.M.L. Rev. 53 (1981).
For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982).
For annual survey of New Mexico law relating to civil procedure, see 13 N.M.L. Rev. 251 (1983).
For 1984-88 survey of New Mexico administrative law, 19 N.M.L. Rev. 575 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
77 Am. Jur. 2d Venue §§ 1 to 8.
Liability or indemnity insurance as regards accident as "accident insurance" within meaning of statute as to venue, 77 A.L.R. 1416.
Constitutionality of statute which permits action against trucking or bus company for injury to person or property to be brought in any county through or into which the route passes, 81 A.L.R. 777.
Aeroplane passenger, venue of action for injury to, 83 A.L.R. 376, 99 A.L.R. 173, 155 A.L.R. 1026.
Venue of actions for declaratory judgments, 87 A.L.R. 1245.
Plaintiff's bona fide belief in cause of action against defendant whose presence in action is necessary to justify venue as against another defendant, as sustaining venue against latter notwithstanding failure to establish cause of action or dismissal of action, against former, 93 A.L.R. 949.
Growing crops, venue of action for damages to, 103 A.L.R. 374.
Mortgages securing same debt or portions thereof, upon real property in different counties, right to maintain single suit to foreclose, 110 A.L.R. 1477.
Guardianship of incompetent or infant as affecting venue of action, 111 A.L.R. 167.
Joining cause of action or prayer for personal relief as affecting venue of action relating to real property, 120 A.L.R. 790.
Fraud in the sale of real property, location of land as governing venue of action for damages for, 163 A.L.R. 1312.
Timber contract, venue in action arising out of, after delay in performance, 164 A.L.R. 465.
Presumption or inference as to place of forgery, arising from unexplained possession or uttering of forged paper, 164 A.L.R. 649.
Venue of action involving real estate situated in two or more counties or districts, 169 A.L.R. 1245.
Designation of place of business of corporation papers, conclusiveness of, as regards venue, 175 A.L.R. 1092.
Lien as estate or interest in land within venue statute, 2 A.L.R.2d 1261.
Nuisance, suit to enjoin, 7 A.L.R.2d 481.
Remedy and procedure to avoid release or satisfaction of judgment, 9 A.L.R.2d 553.
Effect of nonsuit, dismissal or discontinuance of action on previous orders, 11 A.L.R.2d 1407.
Relationship between "residence" and "domicil" under venue statutes, 12 A.L.R.2d 757.
Personal property: what is an action for damages to personal property within venue statute, 29 A.L.R.2d 1270.
Applicability, to annulment actions, of residence requirements of divorce statutes, 32 A.L.R.2d 734.
Partnership dissolution, settlement, or accounting, 33 A.L.R.2d 914.
Wrongful death action, 36 A.L.R.2d 1146.
Fraudulent conveyance, setting aside of, 37 A.L.R.2d 568.
Nonresident motorist served constructively under statute, venue of action against, 38 A.L.R.2d 1198.
Divorce: venue of divorce action in particular county as dependent on residence or domicile for a specified length of time, 54 A.L.R.2d 898.
Replevin, or similar possessory action, proper county for bringing, 60 A.L.R.2d 487.
Specific performance of contract pertaining to real property, action for, 63 A.L.R.2d 456.
Timber: action for cutting, destruction, or damage of standing timber or trees, 65 A.L.R.2d 1268.
Airplane accident: proper forum and right to maintain action for accident causing death over or in high seas, 66 A.L.R.2d 1002.
Intervention by other stockholders in stockholder's derivative action, 69 A.L.R.2d 562.
Slander action, 70 A.L.R.2d 1340.
Contribution or indemnity claim arising from payment of judgment as claim in motor vehicle accident case, 84 A.L.R.2d 994.
Executor: place of personal representative's appointment as venue of action against him in his official capacity, 93 A.L.R.2d 1199.
Real estate: venue of damage action for breach of real estate sales contract, 8 A.L.R.3d 489.
Venue of civil libel action against newspaper or periodical, 15 A.L.R.3d 1249.
Venue in action for malicious prosecution, 12 A.L.R.4th 1278.
Validity of contractual provision limiting place or court in which action may be brought, 31 A.L.R.4th 404.
Place where claim or cause of action "arose" under state venue statute, 53 A.L.R.4th 1104.
Place where corporation is doing business for purposes of state venue statute, 42 A.L.R.5th 221.
Venue of wrongful death action, 58 A.L.R.5th 535.
Construction and application of venue provisions of Miller Act (40 USCS § 270b (b)), 140 A.L.R. Fed. 615.
92 C.J.S. Venue § 5.