2023 New Mexico Statutes › Chapter 39 - Judgments, Costs, Appeals › Article 3 - Appeals › Section 39-3-22 - Supersedeas and stay in civil actions.

A. There shall be no supersedeas or stay of execution upon any final judgment or decision of the district court in any civil action in which an appeal has been taken or a writ of error sued out unless the appellant or plaintiff in error, or some responsible person for the appellant or plaintiff in error, within sixty days from the entry of the judgment or decision, executes a bond to the adverse party in double the amount of the judgment complained of, with sufficient sureties, and approved by the clerk of the district court in case of appeals or by the clerk of the supreme court in case of writ of error. The bond shall be conditioned for the payment of the judgment and all costs that may be finally adjudged against the appellant or plaintiff in error if the appeal or writ of error is dismissed or the judgment or decision of the district court is affirmed. The district court, for good cause shown, may grant the appellant not to exceed thirty days' additional time within which to file the bond, and a like extension of time may be granted by the supreme court in cases of writs of error upon a like showing.
B. If the decision appealed from, or from which a writ of error is sued out, is for a recovery other than a fixed amount of money, the amount of the bond, if any, shall be fixed by the district court if an appeal is taken or, in case of a writ of error, by the chief justice or any justice of the supreme court, conditioned that the appellant or plaintiff in error shall prosecute the appeal or writ of error with diligence and that if the decision of the district court is affirmed or the appeal or writ of error is dismissed, the appellant or plaintiff in error will comply with the judgment of the district court and pay all damages and costs finally adjudged against the appellant or plaintiff in error in the district court and in the supreme court or court of appeals on the appeal or writ of error, including any legal damages caused by taking the appeal, whether the damages are assessed upon motion in the cause or in a civil action on the bond.
C. In any civil action involving a signatory, a successor of a signatory or any affiliate of a signatory to the master settlement agreement, as defined in Subsection E of Section 6-4-12 NMSA 1978, the supersedeas bond required of all appellants collectively in order to stay the execution of a judgment during the entire course of appellate review shall not exceed one hundred million dollars ($100,000,000), regardless of the amount of the judgment.
D. Upon approval of a bond provided for in this section and upon filing the bond, in case of appeal with the clerk of the district court and in case of writ of error with the clerk of the supreme court, there shall be a stay of proceedings in the action until the appeal or writ of error is finally determined.
E. In all cases where an appeal has been taken or a writ of error sued out against any interlocutory judgment, order or decision of the district court, from any final order affecting a substantial right made after entry of a final judgment or from any proceeding or conviction of civil contempt, supersedeas may be granted under the provisions of this section, but the bond shall be filed within thirty days from the entry of such judgment, order, decision or conviction and no extension of time for the filing of the bond shall be granted in excess of ten days.
F. Any supersedeas granted under this section in any matter appealed to the supreme court or court of appeals shall automatically continue in effect pending any action or further review that may be taken in the supreme court or court of appeals.
History:
Laws 1917, ch. 43, § 17; C.S. 1929, § 105-2513; 1953 Comp., § 21-10-19; Laws 1966, ch. 28, § 50; 2007, ch. 272 , § 1.
ANNOTATIONS
Cross references.
— For title or possession of property, supersedeas bond,
see
39-3-9 NMSA 1978.
Compiler's notes.
— Laws 1966, ch. 28, § 50, recompiled this section. It had been omitted by the compilers of the 1941 Compilation as superseded by the Supreme Court Rules.
The 2007 amendment,
effective June 15, 2007, added Subsection C limiting the supersedeas bond of a signatory in a master settlement agreement.
Amount of supersedeas bond.
— Rule 1-062(D) NMRA and Section 39-3-22 NMSA 1978 are not in conflict. Rule 1-062(D) NMRA provides for factors that must be considered by the court in determining the amount of a bond that will protect a judgment holder who must delay execution of the judgment pending appeal. Section 39-3-22 NMSA 1978 expands upon the purpose of Rule 1-062(D) NMRA by providing an alternative mechanism for enduring that the holder of a judgment is adequately protected from any damage that may result from a stay of the judgment pending appeal.
Grassie v. Roswell Hosp. Corp.
, 2008-NMCA-076, 144 N.M. 241, 185 P.3d 1091, cert. quashed, 2009-NMCERT-005, 146 N.M. 728, 214 P.3d 793.
Time period to seek supersedeas bond.
— The time period specified in Paragraph D of Rule 1-062 NMRA in which an appellant may seek a supersedeas bond prevails over the time period specified in Subsection A of Section 39-3-22 NMSA 1978.
Jones v. Harris News, Inc.
, 2010-NMCA-088, 148 N.M. 612, 241 P.3d 613.
Time limitations must be complied with.
— Although a district court has the inherent power to stay execution of a judgment rendered, the party must show the existence of exceptional, equitable grounds justifying the granting of a stay when the statute or rule does not otherwise provide for such relief. A party may not, however, disregard the time limitations of Subsection A and Rule 1-062D NMRA, and then post a supersedeas bond or obtain a stay of execution.
Long v. Continental Divide Elec. Coop.
, 1994-NMCA-044, 117 N.M. 543, 873 P.2d 289, superseded by statute,
Jones v. Harris News, Inc.
, 2010-NMCA-088, 148 N.M. 612, 241 P.3d 613.
District court action on motion.
— When the district court is allowed by rule and statute to act upon the motion of a party who has become an appellant for a stay of execution, the general rule divesting that court of jurisdiction upon notice of appeal is inapplicable.
Devlin v. State ex rel. N.M. State Police Dep't
, 1988-NMSC-102, 108 N.M. 72, 766 P.2d 916.
Circumventing prohibitions against summary execution.
— The prevailing party at trial may not circumvent prohibitions against summarily executing upon his judgment until the time for permitting the trial court to act upon motions for obtaining supersedeas has expired.
Devlin v. State ex rel. N.M. State Police Dep't
, 1988-NMSC-102, 108 N.M. 72, 766 P.2d 916.
Appellant not allowed to correct imperfect bond.
— Where an imperfect supersedeas bond has been filed, which was nevertheless sufficient as a cost bond, appellant may not correct the record by filing another supersedeas bond, after the time allowed, since to do so would prejudice the rights of appellee.
Mundy v. Irwin
, 1914-NMSC-043, 19 N.M. 170, 141 P. 877 (decided under former law).
Bond can act as cost bond.
— A bond filed 37 days after appeal, purporting to be a supersedeas bond which was ineffective for that purpose, because conditioned only for the payment of costs, is nevertheless sufficient as a cost bond, having been filed before any advantage was taken of the failure to file within 30 days.
Mundy v. Irwin
, 1914-NMSC-043, 19 N.M. 170, 141 P. 877 (decided under former law).
Failure to post a supersedeas bond to stay a foreclosure sale
pending review does not bar restitution if the district court's judgment is reversed.
Bank of Santa Fe v. Honey Boy Haven, Inc.
, 1987-NMSC-118, 106 N.M. 584, 746 P.2d 1116.
Release of bond.
— Trial court erred in ordering the release of a supersedeas bond, which husband had posted pending appeal, to the surety, when the appeal had been dismissed, yet husband refused to pay fees and costs, as required under the trial court's order in the divorce proceeding.
Khalsa v. Levinson
, 2003-NMCA-018, 133 N.M. 206, 62 P.3d 297.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 5 Am. Jur. 2d Appellate Review § 436 et seq.
Constitutionality, construction and application of statute as to effect of taking appeal, or staying execution, on right to redeem for execution or judicial sale, 44 A.L.R.4th 1229.
4 C.J.S. Appeal & Error § 421 et seq.