2023 New Mexico Statutes › Chapter 56 - Commercial Instruments and Transactions › Article 9 - Transfers to Prefer Creditors - Voluntary Assignments › Section 56-9-46 - [Attachment not to issue after assignment.]

No process by attachment shall issue on behalf of any creditor of the assignor after such assignment has been duly made, as in this chapter contemplated, until a court of competent jurisdiction shall have first pronounced the assignment void, ab initio by proper suit or action brought by one or more creditors for that purpose, in which case, after the bill is filed and proper service is had, the court, or judge in vacation, shall fix the time for making up the issues, and render a final decree as soon as practicable.
History:
Laws 1889, ch. 71, § 37; C.L. 1897, § 2863; Code 1915, § 319; C.S. 1929, § 7-146; 1941 Comp., § 23-146; 1953 Comp., § 27-1-46.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes.
— The words "in this chapter," the first time they appear, were inserted by the 1915 Code compilers; the words "this chapter," the second time they appear, were substituted for "this act." Presumably, "this chapter" refers to 56-9-1 to 56-9-55 NMSA 1978, whereas "this act" refers only to Laws 1889, ch. 67, §§ 1 to 9, presently compiled as 56-9-1 to 56-9-9 NMSA 1978.
Attachment after assignment barred.
— Writ of attachment issued and levied, in an action of assumpsit, after deed of general assignment for benefit of creditors has been executed, is properly quashed on motion of defendant.
Schofield v. Folsom
, 1894-NMSC-015, 7 N.M. 601, 38 P. 251.
Execution of deed of assignment.
— The assignment has been duly made and attachment barred when the assignment has been "proved, or acknowledged, and certified and recorded," even though the assignee has not qualified and filed bond.
Schofield v. Folsom
, 1894-NMSC-015, 7 N.M. 601, 38 P. 251.
Creditor has action if assignment colorable.
— If the assignee should fail to qualify within a reasonable time, or if, without having executed the required bond, he should take possession of the assigned property, or if, after the execution of the deed of assignment, the assignor should exercise a control inconsistent with his changed relation to the property, as for instance, if he should undertake to dispose of it, or in fine, if, by reason of any circumstances connected with the transaction, a creditor should be of the opinion that the assignment was merely colorable, he would be authorized to bring his action under this section to have the assignment pronounced void ab initio.
Schofield v. Folsom
, 1894-NMSC-015, 7 N.M. 601, 38 P. 251.
Stock attachable if not transferred upon books.
— An attachment of corporate stock assigned by the debtor under this act, but not transferred upon the books of the company as required by law, will not be quashed.
Lyndonville Nat'l Bank v. Folsom
, 1894-NMSC-016, 7 N.M. 611, 38 P. 253.
Law reviews.
— For article, "Attachment in New Mexico - Part I,"
see
1 Nat. Resources J. 303 (1961).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
6 Am. Jur. 2d Assignments for Benefit of Creditors §§ 35, 43, 68, 87; 6 Am. Jur. 2d Attachment and Garnishment § 492.
6A C.J.S. Assignments for Benefit of Creditors §§ 75, 76.