2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-4 - [Filing complaint or statement, affidavit and bond; issuance of writ; property subject to attachment.]

A creditor wishing to sue his debtor by attachment, may place in the clerk's office of the district court of any county in this state, having jurisdiction, a complaint, or other lawful statement of his cause of action, and shall also file an affidavit and bond; and thereupon such creditor may sue out an original attachment against the lands, tenements, goods, moneys, effects, credits and any right, title, lien or interest whether legal or equitable upon, in or to real or personal, tangible or intangible property whether present or possessory or reversionary or in remainder and all property which could be reached upon execution or upon equitable proceedings in aid of execution, of the debtor in whosesoever hands they may be except such property as is now, or may hereafter be, specifically exempted from attachment or execution by law and except interests of beneficiaries in spendthrift trusts for whom spendthrift trusts are or may be created.
History:
C.L. 1897, § 2685 (184), added by Laws 1907, ch. 107, § 1 (184); Code 1915, § 4301; C.S. 1929, § 105-1603; Laws 1939, ch. 159, § 1; 1941 Comp., § 22-104; 1953 Comp., § 26-1-4.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For exemption on personal property,
see
42-10-1 NMSA 1978 et seq.
For notice of levy on real estate to be filed in recorder's office,
see
39-4-4 NMSA 1978.
Filing of affidavit necessary, before any writ issued.
— In attachment proceedings, an affidavit and bond with the clerk's approval endorsed thereon and the petition must be filed before attachment is issued or the writ is issued without authority, and all proceedings under it are null and void.
Waldo v. Beckwith
, 1854-NMSC-002, 1 N.M. 97 (decided under former law).
Affidavit may be made and verified before notary public.
Robinson v. Hesser
, 1887-NMSC-023, 4 N.M. (Gild.) 282, 13 P. 204 (decided under former law).
Affidavit insufficient as complaint.
— Affidavit for attachment was not sufficient as a declaration (now complaint).
Staab v. Hersch
, 1884-NMSC-018, 3 N.M. (Gild.) 209, 3 P. 248 (decided under former law).
Bond requirement not waived because of wage claim action.
— Sections 50-4-11 and 50-4-12 NMSA 1978 relating to wage claim actions by the labor commissioner (now secretary of workforce solutions department) do not waive the requirement for the furnishing of a bond in an attachment proceeding under this section and Section 42-9-7 NMSA 1978.
Cal-M, Inc. v. McManus
, 1963-NMSC-184, 73 N.M. 91, 385 P.2d 954.
Where levy upon defendant's property has been made under valid writ
of attachment in an original attachment, and service made by publication on a nonresident as required by law, although the return of the sheriff was not made until after judgment was taken, the court had jurisdiction to render a judgment in rem by default and to order sale of perishable property attached and application of its proceeds upon such judgment.
Southern Cal. Fruit Exch. v. Stamm
, 1898-NMSC-008, 9 N.M. 361, 54 P. 345 (decided under former law).
Section does not authorize attachment of property in custody of court.
— Since this section does not specifically allow attachment of property in the custody of a court, a judgment creditor may not attach its lien to funds of a debtor in the possession of the Court Registry prior to the conclusion of a suit involving those funds.
In re Albuquerque W. Solar Indus., Inc.
, 54 Bankr. 174 (Bankr. D.N.M. 1985).
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
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. —
6 Am. Jur. 2d Attachment and Garnishment §§ 255, 362, 518 to 549, 565.
Attachment for goods or money embezzled, stolen or converted, 4 A.L.R. 832.
Seal as necessary to authentication of attachment, 30 A.L.R. 734.
Trick or device by which property of nonresident was subjected to jurisdiction, 37 A.L.R. 1255.
Attorney's disbarment for failure to account for money of client as affected by attachment of attorney's funds, 43 A.L.R. 69.
Marketability of title as affected by attachment, 57 A.L.R. 1406, 81 A.L.R.2d 1020.
Mechanic's lien as waived by attachment, 65 A.L.R. 316.
Abuse of process by successive writs to reach exempt property, 65 A.L.R. 1283.
Money only, what constitutes an action for recovery of, within statute as to the character of actions in which attachment may issue, 76 A.L.R. 1446.
Vendee's or optionee's interest in respect of real property, lien of attachment on, as attaching to title acquired by completion of contract or exercise of option, 85 A.L.R. 929.
Surety on bond given to prevent, or secure release of, attachment, right to attack attachment after recovery of judgment by plaintiff, on ground of defects in, or falsity of, affidavit, 89 A.L.R. 269.
Swearing to affidavit in attachment before unauthorized person as a defect curable by amendment, 91 A.L.R. 917.
Attachment statute as applicable to equity suits, 154 A.L.R. 95.
What is an action for "debt" within attachment statute?, 12 A.L.R.2d 787.
Validity of attachment of chattels within store or building other than private dwelling, made without removing the goods or without making entry, 22 A.L.R.2d 1276.
7 C.J.S. Attachment §§ 47 to 61.