2023 New Mexico Statutes › Chapter 35 - Magistrate and Municipal Courts › Article 13 - Magistrate Court; Appeals › Section 35-13-1 - Appeals; right of appeal.

Any party aggrieved by any judgment rendered or final order issued by the magistrate court in any civil action or special statutory proceeding, or the defendant aggrieved by any judgment rendered or final order issued by the magistrate court in any criminal action, may appeal to the district court within fifteen days after judgment is rendered or the final order is issued in the magistrate court.
History:
1953 Comp., § 36-15-1, enacted by Laws 1968, ch. 62, § 148; 1975, ch. 242, § 9.
ANNOTATIONS
Repeals.
— Laws 1968, ch. 62, § 171, repealed former 36-15-1 to 36-15-4, 1953 Comp., relating to forfeiture of appearance bonds, summons, service and appeal, effective January 1, 1969.
Cross references.
— For constitutional authority to appeal,
see
N.M. Const., art. VI, § 27.
For procedures governing appeals to the district court from magistrate courts in trial de novo cases,
see
Rule 1-072 NMRA.
For appeal from magistrate court,
see
Rule 2-705 NMRA.
Order of dismissal is a final appealable order.
— Where, after a hearing pursuant to a "Notice of Probable Cause/Bench Trial", the magistrate court entered an order which dismissed the action due to no probable clause, the order was a final appealable order.
State v. Montoya
, 2008-NMSC-043, 144 N.M. 458, 188 P.3d 1209.
Evidentiary hearing to determine jurisdiction.
— Where the defendant pled no contest in magistrate court and appealed the magistrate court sentence to district court, the district court did not err when it conducted an evidentiary hearing concerning the defendant's plea.
State v. Gallegos
, 2007-NMCA-112, 142 N.M. 447, 166 P.3d 1101, cert. denied, 2007-NMCERT-006, 142 N.M. 15, 162 P.3d 170.
Appeal matter of right.
— Appeal from justices' (now magistrates') court to district court was a matter of right.
Lea County State Bank v. McCaskey Register Co.
, 1935-NMSC-069, 39 N.M. 454, 49 P.2d 577 (decided under prior law).
Time for appeal is when order is filed.
— The term "entry" as used in Subsection A of Rule 2-705 NMRA and the terms "rendered" and "issued" in Section 35-13-1 NMSA 1978 are synonymous with the time a judgment or decision is "filed" with the court clerk's office. Thus, the time for an appeal begins to run when the order is filed.
Trujillo v. Serrano
, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369.
Late filing of appeal.
— Because timely filing of an appeal is a mandatory precondition rather than an absolute jurisdictional requirement, a trial court may, under unusual circumstances, use its discretion and entertain an appeal even though it is not timely filed. The decision to dismiss an appeal is extreme and must be determined on a case-by-case basis.
Trujillo v. Serrano
, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369.
Court error may excuse late appeal.
— One unusual circumstance which would warrant permitting an untimely appeal is if the delay is a result of judicial error. To deny a party the constitutional right to an appeal because of a mistake on the part of the court runs against the most basic precepts of justice and fairness.
Trujillo v. Serrano
, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369.
Appeal by state.
— Pursuant to N.M. Const., art. VI, § 27, the state is permitted to appeal to the district court from a final judgment or decision rendered by the magistrate court. This section does not preclude such an appeal by the state. S
tate v. Barber
, 1989-NMCA-058, 108 N.M. 709, 778 P.2d 456, cert. denied, 108 N.M. 713, 778 P.2d 911.
This section does not give the state the right to appeal a magistrate court's suppression order, because such an order is not a final judgment or order.
State v. Heinsen
, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040.
Effect on appeal of act or omission by magistrate.
— After a party had done all that he reasonably could do and that the law required to perfect his appeal, it could not be defeated by any omission or act on part of justice of the peace (now magistrate) respecting appeal bond.
State ex rel. Heron v. District Court of First Judicial Dist.
, 1942-NMSC-035, 46 N.M. 290, 128 P.2d 451 (decided under former law).
Scope of appeal from final order.
— All appeals from a final order issued by the magistrate court are on the merits by trial de novo except as otherwise provided by law.
State v. Heinsen
, 2005-NMSC-035, 138 N.M. 441, 121 P.3d 1040.
Omission by magistrate fatal to appeal.
— Failure by plaintiff to make certain magistrate filed the transcript to the district court within statutory time period constituted a failure to prosecute diligently his appeal, warranting dismissal of appeal.
Stripling v. PMC Realtors, Inc.
, 1971-NMSC-096, 83 N.M. 170, 489 P.2d 883.
Omission not fatal.
— The district court acquires jurisdiction of inferior court cases through notice of appeal, and the court is not divested of jurisdiction by the failure of the magistrate to submit a transcript of proceedings.
State v. McKee
, 1974-NMCA-103, 86 N.M. 733, 527 P.2d 496, cert. denied, 86 N.M. 730, 527 P.2d 493.
When case beyond control of magistrate.
— When appellant had done all that was required of him in perfecting an appeal, the case was beyond the control of the justice (now magistrate).
Lea County State Bank v. McCaskey Register Co.
, 1935-NMSC-069, 39 N.M. 454, 49 P.2d 577 (decided under former law).
Effect on default judgment.
— One could appeal from a default judgment rendered and entered against him by a justice of the peace (now magistrate).
State ex rel. Heron v. District Court of First Judicial Dist.
, 1942-NMSC-035, 46 N.M. 290, 128 P.2d 451, writ of prohibition denied, 1942-NMSC-036, 46 N.M. 296, 128 P.2d 454;
M.J. Faggard & Co. v. Cunningham
, 1914-NMSC-008, 18 N.M. 510, 138 P. 264 (decided under former law).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 47 Am. Jur. 2d Justices of the Peace § 82.
Plea of guilty in justice of the peace or similar inferior court as precluding appeal, 42 A.L.R.2d 995.
24 C.J.S. Criminal Law §§ 1668 to 1674; 51 C.J.S. Justices of the Peace §§ 138 to 140.