2023 New Mexico Statutes › Chapter 39 - Judgments, Costs, Appeals › Article 4 - Recovery on Judgments › Section 39-4-1 - [Right to execution; issuance; levy and sale; jurisdiction.]

The party in whose favor any judgment, order or decree in any court may be returned, shall have execution therefor in conformity to the order, judgment or decree. Said execution may be issued to the sheriff of any county of the state, and levy and sale made in any county wherein the judgment debtor may have property subject to execution.
The court where the judgment or decree was rendered shall have jurisdiction over all matters growing out of the levy or sale under any execution.
History:
Kearny Code, Executions, § 1; C.L. 1865, ch. 34, § 1; C.L. 1884, § 2157; C.L. 1897, § 3105; Code 1915, § 2190; Laws 1919, ch. 60, § 1; C.S. 1929, § 46-101; 1941 Comp., § 21-101; 1953 Comp., § 24-1-1.
ANNOTATIONS
Cross references.
— For provisions that execution not issue against county commissioner or municipality,
see
N.M. Const., art. VIII, § 7.
For sheriff's fees for levy and sale,
see
4-41-16 and 4-41-17 NMSA 1978, respectively.
For levy to collect contributions due under Unemployment Compensation Law,
see
51-1-36 NMSA 1978.
For rule relating to stay of proceedings to enforce a judgment,
see
Rule 1-062 NMRA.
For rule relating to examination of judgment debtor or others,
see
Rule 1-069 NMRA.
Exclusive jurisdiction.
— The jurisdiction clause at the end of the section vests exclusive jurisdiction over "matters growing out of the levy or sale under any execution" in the court rendering the judgment.
Heimann v. Adee
, 1996-NMSC-053, 122 N.M. 340, 924 P.2d 1352.
Effect on equity powers of court.
— This section, though giving execution for money decrees in equity, does not abrogate equity power to enforce by attachment as for contempt its decree for monthly payments for support of children.
Ex parte Sedillo
, 1929-NMSC-038, 34 N.M. 98, 278 P. 202.
Judgment and execution for contract breach.
— Where, after labor, material and money, sufficient to build a house, was voluntarily furnished, and the house was built on furnishee's lot, the furnishee and his wife, in consideration for such furnishing, verbally agreed with furnisher to board him for life, and, upon his death, to provide him a suitable burial, and, after the death of furnishee's wife, the furnishee breached the agreement, the furnisher was not entitled to equitable relief, but was entitled to remedy by judgment at law and execution thereon, or by attachment, or by judgment, execution and supplementary proceedings subsequent to execution.
Van Sickle v. Keck
, 1938-NMSC-041, 42 N.M. 450, 81 P.2d 707.
Sales by IRS distinguished.
— Sales on execution or foreclosure are sales conducted under the auspices of the courts following entry of a judgment, order or decree, unlike sales under the Internal Revenue Code following administrative levy or seizure, which latter sales could not serve purchaser as basis of statutory action for forcible entry and detainer.
Henderson v. Gibbany
, 1966-NMSC-172, 76 N.M. 674, 417 P.2d 807.
Sheriff as agent of law.
— The sheriff in execution of writs of execution is acting as an officer of, or as an agent of, the law, not necessarily as agent of the party who procures service of the writ, and in such capacity he is merely a nominal party.
Riggs v. Gardikas
, 1967-NMSC-120, 78 N.M. 5, 427 P.2d 890.
Order for sale modifiable.
— Although, order for judicial sale may not initially be in accord with the statute, as an interlocutory order it may be modified, and is valid provided that the sale is conducted lawfully.
Speckner v. Riebold
, 1974-NMSC-029, 86 N.M. 275, 523 P.2d 10.
Duties of sheriff.
— Proceeding in aid of execution statutes, a sheriff must first reduce the property to possession, next he must advertise it for sale, then he must determine its value before sale and, in case exemption is claimed in lieu of homestead, he must not levy on such property to the amount of the exemption. 1944 Op. Att'y Gen. No. 44-4538.
Execution out of supreme court.
— When writ of execution issues out of supreme court the same procedure should be followed as when writ issues from the district court. 1944 Op. Att'y Gen. No. 44-4538.
Section was not applicable to justice of peace courts
(now magistrate courts) as former 36-6-9, 1953 Comp., the more specific statute, was controlling. 1966 Op. Att'y Gen. No. 66-68.
Law reviews.
— For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 30 Am. Jur. 2d Executions § 1 et seq.
Time of issuing writ as ground of collateral attack on execution sales, 1 A.L.R. 1437.
Ratification by corporation of unauthorized stay of execution by officer by acceptance and retention of benefits, 7 A.L.R. 1482.
Receiver's appointment for corporation as affecting enforcement of execution, 8 A.L.R. 459.
Effect of levy of execution on correction of clerical errors in judgment, 10 A.L.R. 579, 67 A.L.R. 828, 126 A.L.R. 956, 14 A.L.R.2d 224.
Stay of execution of judgment as suspending running of limitations, 21 A.L.R. 1067.
Marketability of title as affected by execution lien, 57 A.L.R. 1406, 81 A.L.R.2d 1020.
Mechanic's lien as waived by resort to execution, 65 A.L.R. 317.
Right to have enforcement of costs stayed pending final determination of case, 78 A.L.R. 359.
Stay of execution on judgment obtained by withdrawing member of building and loan association, 98 A.L.R. 105.
Injunction against waste to protect execution lien, 103 A.L.R. 387.
Death of joint tenant as affecting right of his judgment creditor to execution in respect of his interest in the joint property, 111 A.L.R. 171.
Appearance to attack execution as submission to jurisdiction, 111 A.L.R. 938.
Right to execution to enforce judgment lien after death of judgment debtor, 114 A.L.R. 1169.
Motion for new trial as suspension or stay of execution or judgment, 121 A.L.R. 686.
Property right of creditor who institutes supplementary proceedings over other creditors in respect of property disclosed thereby, 153 A.L.R. 211.
Interest of spouse in estate by the entirety as subject to execution for individual debt, 166 A.L.R. 969, 75 A.L.R.2d 1172.
Statutory provisions respecting registration of mortgages or other liens on personal property in case of residents of other states as affecting priority of execution lien over lien of chattel mortgage or conditional sale contract, 10 A.L.R.2d 764.
Mere rendition or formal entry or docketing, of judgment as prerequisite to issuance of valid execution thereon, 65 A.L.R.2d 1162.
Issuance or levy of execution as extending period of judgment lien, 77 A.L.R.2d 1064.
Tort immunity of nongovernmental charities, 25 A.L.R.4th 517.
Validity, construction, and effect of body execution statutes allowing imprisonment based on judgment, debt, or the like - modern cases, 79 A.L.R.4th 232.
33 C.J.S. Executions § 14.