reglab/statecodes huggingface dataset:
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-22 - [Notice of hearing.]

In criminal cases, notice of the time and place at which the writ is made returnable shall be given to the district attorney, if he is within the county; in other cases like notice shall be given to any person interested in continuing the custody or restraint of the party seeking the aid of said writ.
History:
Laws 1884, ch. 1, § 22; C.L. 1884, § 2033; C.L. 1897, § 2802; Code 1915, § 2610; C.S. 1929, § 63-122; 1941 Comp., § 25-1122; 1953 Comp., § 22-11-22.
ANNOTATIONS
Law reviews.
— For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39A C.J.S. Habeas Corpus § 166.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-23 - [Bail proceedings; authorization of habeas corpus; committing magistrate's proceedings to be reviewed.]

Hereafter all persons to whom bail has been denied or who are confined for failure to give bail, may have the benefit of a writ of habeas corpus for the purpose of being admitted to bail or having the bail reduced, and the court or judge shall, upon habeas corpus, review the proceedings or action of a committing magistrate.
History:
Laws 1889, ch. 29, § 1; C.L. 1897, § 2803; Code 1915, § 2611; C.S. 1929, § 63-123; 1941 Comp., § 25-1123; 1953 Comp., § 22-11-23.
ANNOTATIONS
Cross references.
— For release on bail,
see
44-1-19 NMSA 1978.
For bail generally,
see
Rule 5-401 NMRA.
Compiler's notes.
— This section, as enacted, contained at the beginning a clause repealing 2034, 1884 C.L. The clause was omitted by the compilers of the 1915 Code.
Former statute prevented bail in capital case where proof evident.
— Supreme court did not find it necessary to determine whether the constitution prohibited bail to persons coming within the exception set forth in N.M. Const., art. II, § 13, concerning persons accused of capital offenses, when proof is evident or presumption great, because 41-4-5, 1953 Comp. (since repealed) expressly prohibited the granting of bail to such defendants. Therefore, magistrate had no discretion to allow bail, since his determination was that, as to the defendants, the proof was evident or the presumption great.
Tijerina v. Baker
, 1968-NMSC-009, 78 N.M. 770, 438 P.2d 514.
Bail not mandatory after issuance of warrant in extradition case.
— This section does not require the granting of bail in every case nor does it require bail after issuance of a governor's warrant in an extradition case. 1974 Op. Att'y Gen. No. 74-38.
Law reviews.
— For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39 Am. Jur. 2d Habeas Corpus §§ 40 to 43.
Bail pending appeal in habeas corpus, 63 A.L.R. 1460, 143 A.L.R. 1354.
39 C.J.S. Habeas Corpus § 111.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-24 - [Certiorari to committing magistrate; transcript; examination of case de novo; decision.]

When an application is made before any authority authorized by law to issue such writs of habeas corpus it shall be the duty of such officers to issue a writ of certiorari commanding the committing magistrate forthwith to send to said officers a full and complete transcript of all his proceedings had thereof, and the said officer upon the return of such writ shall proceed to examine the case de novo and either commit to jail, discharge or recognize such person to appear before the district court as the case may require.
History:
Laws 1889, ch. 29, § 2; C.L. 1897, § 2804; Code 1915, § 2612; C.S. 1929, § 63-124; 1941 Comp., § 25-1124; 1953 Comp., § 22-11-24.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-25 - [Pleading by petitioner after return; summary hearing.]

The party brought before any such officer on the return of any writ of habeas corpus, may deny any of the material facts set forth in the return, or allege any fact to show, either that his imprisonment or detention is unlawful, or that he is entitled to his discharge, which allegations or denials shall be on oath; and thereupon such officer shall proceed in a summary way to hear such allegations and proofs as are legally produced in support of such imprisonment or detention or against the same, and to dispose of such party as justice requires.
History:
Laws 1884, ch. 1, § 24; C.L. 1884, § 2035; C.L. 1897, § 2805; Code 1915, § 2613; C.S. 1929, § 63-125; 1941 Comp., § 25-1125, 1953 Comp., § 22-11-25.
ANNOTATIONS
Petitioner may allege and show void character of conviction.
— When a return to writ asserts that petitioner is held under a commitment issued pursuant to a judgment of a district court, the petitioner may deny the facts alleged in the return, and himself allege and show facts to establish the void character of his conviction and illegality of his detention.
Orosco v. Cox
, 1965-NMSC-098, 75 N.M. 431, 405 P.2d 668.
In habeas corpus proceeding supreme court may receive evidence outside the record
to establish the absence or loss of jurisdiction through denial of any of the rights guaranteed to a prisoner at the bar by either the United States or New Mexico constitutions.
Orosco v. Cox
, 1965-NMSC-098, 75 N.M. 431, 405 P.2d 668.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39 Am. Jur. 2d Habeas Corpus § 142.
39A C.J.S. Habeas Corpus § 188.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-26 - [Procedure when petitioner is sick or infirm.]

Whenever from the sickness or infirmity of the person directed to be produced by any writ of habeas corpus such person cannot, without danger, be brought before the officer before whom the suit is made returnable, the party in whose custody he is may state the fact in his return to the writ, verifying the same by his oath; and if such officer is satisfied of the truth of such allegation and the return is otherwise sufficient, he shall proceed to decide upon such return and to dispose of the matter; and if it appears that the person detained is illegally imprisoned, confined or restrained of his liberty, the officer shall order those having such person in their custody to discharge him forthwith; and if it appears that such person is legally detained, imprisoned and confined, and is not entitled to be bailed, such officer shall dismiss the proceedings.
History:
Laws 1884, ch. 1, § 25; C.L. 1884, § 2036; C.L. 1897, § 2806; Code 1915, § 2614; C.S. 1929, § 63-126; 1941 Comp., § 25-1126; 1953 Comp., § 22-11-26.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-27 - [Disobedience of order for discharge; attachment; damages recoverable.]

Obedience to any order for the discharge of any prisoner, granted pursuant to the provisions of this chapter, may be enforced by the officer issuing such writ or granting such order, by attachment, in the same manner as herein provided for a neglect to make a return to a writ of habeas corpus, and the person guilty of such disobedience shall forfeit to the party aggrieved, one thousand dollars [($1,000)] in addition to any special damages such party may have sustained.
History:
Laws 1884, ch. 1, § 26; C.L. 1884, § 2037; C.L. 1897, § 2807; Code 1915, § 2615; C.S. 1929, § 63-127; 1941 Comp., § 25-1127; 1953 Comp., § 22-11-27.
ANNOTATIONS
Meaning of "this chapter".
— The term "this chapter" appeared in the original act, which was divided into three unnumbered divisions, to-wit: habeas corpus, §§ 1 to 36; mandamus, §§ 37 to 50; prohibition, §§ 51 to 56; and apparently referred to §§ 1 to 36, the operative provisions of which are compiled as 44-1-1 to 44-1-22, 44-1-25 to 44-1-37 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39 Am. Jur. 2d Habeas Corpus §§ 176, 177.
Liability for statutory penalty of judge, court, administrative officer or other custodian of person, in connection with habeas corpus proceedings, 84 A.L.R. 807.
39A C.J.S. Habeas Corpus § 187.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-29 - [Concealment or transfer of prisoner to avoid writ; forfeiture.]

If anyone, who has in his custody, or under his control, a person entitled to a writ of habeas corpus, whether a writ has been issued or not, transfers such prisoner to the custody, or places him under the power or control of another person, or conceals him, or changes the place of his confinement, with intent to elude the service of such writ, or to avoid the effect thereof, the person so offending shall forfeit to the party aggrieved thereby the sum of four hundred dollars [($400)], to be recovered in a civil action.
History:
Laws 1884, ch. 1, § 28; C.L. 1884, § 2039; C.L. 1897, § 2809; Code 1915, § 2617; C.S. 1929, § 63-129; 1941 Comp., § 25-1129; 1953 Comp., § 22-11-29.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39 Am. Jur. 2d Habeas Corpus §§ 176, 177.
Liability of judge, court administrative officer or other custodian of person for whose release the writ is sought, in connection with habeas corpus proceedings, 84 A.L.R. 807.
39A C.J.S. Habeas Corpus § 187.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-30 - [Detention officer refusing to furnish copies; forfeiture.]

Any officer, or other person, refusing to deliver a copy of any order, warrant, process or other authority, by which he detains any person, to anyone who demands such copy and tenders the fees thereof, shall forfeit two hundred dollars [($200)] to the person so detained.
History:
Laws 1884, ch. 1, § 29; C.L. 1884, § 2040; C.L. 1897, § 2810; Code 1915, § 2618; C.S. 1929, § 63-130; 1941 Comp., § 25-1130; 1953 Comp., § 22-11-30.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39 Am. Jur. 2d Habeas Corpus §§ 176, 177.
Liability of judge, court administrative officer or other custodian of person for whose release the writ is sought, in connection with habeas corpus proceedings, 84 A.L.R. 807.
39A C.J.S. Habeas Corpus § 187.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-31 - [When writ returnable; seal.]

Every writ of habeas corpus may be made returnable at a day certain, or forthwith, as the case may require, and shall be under the seal of the court.
History:
Laws 1884, ch. 1, § 30; C.L. 1884, § 2041; C.L. 1897, § 2811; Code 1915, § 2619; C.S. 1929, § 63-131; 1941 Comp., § 25-1131; 1953 Comp., § 22-11-31.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39 Am. Jur. 2d Habeas Corpus § 136.
39A C.J.S. Habeas Corpus § 180.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-32 - [Who may serve writ; tender of fees; bond for costs and restoration of prisoner.]

It can only be served by an elector of this state, and the service thereof shall not be deemed complete unless the party serving the same tenders to the person in whose custody the prisoner is, if such person is a sheriff, constable or marshal, the fees allowed by law for bringing up such prisoner. The officer granting the writ may, in his discretion, require a bond in a penalty not exceeding one thousand dollars [($1,000)], with sufficient sureties, conditioned that the obligators will pay all costs and expenses of the proceeding, and the reasonable charges of restoring the prisoner to the person from whose custody he was taken, if he is remanded. Such bond shall run to the sheriff of the county and be filed in the office of the clerk of the court from which the writ issues.
History:
Laws 1884, ch. 1, § 31; C.L. 1884, § 2042; C.L. 1897, § 2812; Code 1915, § 2620; C.S. 1929, § 63-132; 1941 Comp., § 25-1132; 1953 Comp., § 22-11-32.
ANNOTATIONS
Cross references.
— For sheriff's fees for producing prisoner,
see
44-1-37 NMSA 1978.
Intention that petitioner either post bond or pay costs.
— The evident intention of the legislature under this section is that the petitioner might advance the costs to the person in charge of the prisoner or that the officer might require bond for the payment of all costs.
In re Fullen
, 1913-NMSC-036, 17 N.M. 405, 132 P. 1137.
Taxing of costs done pursuant to section.
— The taxing of costs under the terms of the bond, by the supreme court, is not an exercise of discretion, but is pursuant to this section.
In re Fullen
, 1913-NMSC-036, 17 N.M. 405, 132 P. 1137.
Law reviews.
— For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39 Am. Jur. 2d Habeas Corpus §§ 133, 165 to 167.
39A C.J.S. Habeas Corpus §§ 177, 235.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-33 - [Service by delivery to custodian or person to whom writ is directed.]

Every writ of habeas corpus issued pursuant to this chapter may be served by delivering the same to the person to whom it is directed. If he cannot be found, it may be served by being left at the jail or other place in which the prisoner is confined, with any under officer or other person of proper age having charge for the time of such prisoner.
History:
Laws 1884, ch. 1, § 32; C.L. 1884, § 2043; C.L. 1897, § 2813; Code 1915, § 2621; C.S. 1929, § 63-133; 1941 Comp., § 25-1133; 1953 Comp., § 22-11-33.
ANNOTATIONS
Meaning of "this chapter".
— The term "this chapter" appeared in the original act, which was divided into three unnumbered divisions, to-wit: habeas corpus, §§ 1 to 36; mandamus, §§ 37 to 50; prohibition, §§ 51 to 56; and apparently referred to §§ 1 to 36, the operative provisions of which are compiled as 44-1-1 to 44-1-22, 44-1-25 to 44-1-37 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39A C.J.S. Habeas Corpus § 177.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-34 - [Service by posting.]

If the person on whom the writ ought to be served, conceals himself, or refuses admittance to the party attempting to serve the same, it may be served by affixing the same in some conspicuous place on the outside, either of his dwelling house or of the place where the party is confined.
History:
Laws 1884, ch. 1, § 33; C.L. 1884, § 2044; C.L. 1897, § 2814; Code 1915, § 2622; C.S. 1929, § 63-134; 1941 Comp., § 25-1134; 1953 Comp., § 22-11-34.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39A C.J.S. Habeas Corpus § 177.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-35 - [Time allowed for making return and producing prisoner.]

If the writ is returnable at a certain day, such return shall be made, and such prisoner produced at the time and place specified therein; if he is returnable forthwith, and the place is within twenty miles of the place of service, such return shall be made and such prisoner produced within twenty-four hours, and the like time shall be allowed for every additional twenty miles.
History:
Laws 1884, ch. 1, § 34; C.L. 1884, § 2045; C.L. 1897, § 2815; Code 1915, § 2623; C.S. 1929, § 63-135; 1941 Comp., § 25-1135; 1953 Comp., § 22-11-35.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
39 Am. Jur. 2d Habeas Corpus § 136.
39A C.J.S. Habeas Corpus § 180.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-36 - [Compelling attendance of prisoner for trial or as witness.]

Nothing contained in this chapter shall be construed to restrain the power of any court to issue a writ of habeas corpus when necessary to bring before them any prisoner for trial, in any criminal case lawfully pending in the same court, or to bring any prisoner to be examined as a witness in any action or proceeding, civil or criminal, pending in such court, when they think the personal attendance and examination of the witness necessary for the attainment of justice.
History:
Laws 1884, ch. 1, § 35; C.L. 1884, § 2046; C.L. 1897, § 2816; Code 1915, § 2624; C.S. 1929, § 63-136; 1941 Comp., § 25-1136; 1953 Comp., § 22-11-36.
ANNOTATIONS
Meaning of "this chapter".
— The term "this chapter" appeared in the original act, which was divided into three unnumbered divisions, to-wit: habeas corpus, §§ 1 to 36; mandamus, §§ 37 to 50; prohibition, §§ 51 to 56; and apparently referred to §§ 1 to 36, the operative provisions of which are compiled as 44-1-1 to 44-1-22, 44-1-25 to 44-1-37 NMSA 1978.
Law reviews.
— For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981).
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-37 - [Sheriff's fees for producing prisoner.]

The sheriff or person who shall be required to bring up a person on habeas corpus, if the person be held by virtue of any legal process directed to such person as an officer, shall be entitled to the same fees and allowances as are allowed to sheriffs for removing prisoners in other cases.
History:
Laws 1884, ch. 1, § 36; C.L. 1884, § 2047; C.L. 1897, § 2817; Code 1915, § 2625; C.S. 1929, § 63-137; 1941 Comp., § 25-1137; 1953 Comp., § 22-11-37.
ANNOTATIONS
Cross references.
— For county officers not receiving, for their own use, fees in addition to salary,
see
N.M. Const., art. X, § 1 and 4-44-21 NMSA 1978.
For the tender of fees to person having custody,
see
44-1-32 NMSA 1978.
For sheriff's expenses generally,
see
4-41-18, 4-41-19, 4-44-18 NMSA 1978.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 1 - Habeas Corpus › Section 44-1-38 - [Federal court proceedings; payment of costs, fees and expenses by state penitentiary.]

If the petition for the writ is filed in any federal court, all the reasonably necessary costs, fees and expenses incurred or paid by the respondent shall be paid by the penitentiary of New Mexico. The budget of the penitentiary shall include an item for the anticipated expenses of habeas corpus proceedings. If budgeted funds shall not be sufficient to pay the costs and expenses that will arise, an emergency allowance from the state court fund shall be allowed upon application of the warden of the penitentiary to the state board of finance.
History:
1953 Comp., § 22-11-41, enacted by Laws 1963, ch. 178, § 4.
ANNOTATIONS
Law reviews.
— For article, "Habeas Corpus in New Mexico," see 11 N.M.L. Rev. 291 (1981).
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 2 - Mandamus › Section 44-2-1 - [Regulation of mandamus.]

The writ of mandamus is regulated as in this chapter prescribed.
History:
Laws 1884, ch. 1, § 37; C.L. 1884, § 1992; C.L. 1897, § 2760; Code 1915, § 3411; C.S. 1929, § 86-101; 1941 Comp., § 26-101; 1953 Comp., § 22-12-1.
ANNOTATIONS
Meaning of "this chapter".
— The original act, Laws 1884, ch. 1, was divided into three unnumbered divisions, habeas corpus, §§ 1 to 36; mandamus, §§ 37 to 50; and prohibition, §§ 51 to 56. The term "this chapter" appeared in the original act and apparently referred to the division containing §§ 37 to 50, presently compiled as 44-2-1 to 44-2-13 NMSA 1978.
Section limits and defines court's mandamus power.
— Under and by virtue of this section, the power of the court in a mandamus proceeding is limited and defined.
Board of Comm'rs v. Dist. Court
, 1924-NMSC-009, 29 N.M. 244, 223 P. 516.
Denomination of pleading irrelevant since allegations and relief determine nature.
— It matters not what the pleading initiating the proceeding may be denominated. If in truth is discloses by its allegations and the relief sought that it is an action in mandamus, it will be so treated.
Laumback v. Board of Cnty. Comm'rs
, 1955-NMSC-096, 60 N.M. 226, 290 P.2d 1067.
Formal defects in petition for writ waived.
— Because the motor vehicle division appeared generally in the case and subsequently did not answer or appear at any hearing, the division waived any formal defects in the petition for writ of mandamus.
Barreras v. N.M. Motor Vehicle Div.
, 2005-NMCA-055, 137 N.M. 435, 112 P.3d 296.
Law reviews.
— For article, "Mandamus in New Mexico," see 4 N.M. L. Rev. 155 (1974).
For survey, "Torts: Sovereign and Governmental Immunity in New Mexico," see 6 N.M. L. Rev. 249 (1976).
For note, "Mandamus Proceedings Against Public Officials: State of New Mexico ex rel. Bird v. Apodaca," see 9 N.M.L. Rev. 195 (1978-79).
For article, "Survey of New Mexico Law, 1979-80: Administrative Law," see 11 N.M.L. Rev. 1 (1981).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
52 Am. Jur. 2d Mandamus § 1 et seq.
Allowance of attorney's fees in mandamus proceedings, 34 A.L.R.4th 457.
55 C.J.S. Mandamus § 1 et seq.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 2 - Mandamus › Section 44-2-2 - [District courts open at all times for issuance of writs.]

For the purpose of hearing application for, and issuing writs of mandamus, the district courts shall be regarded as open at all times, wherever the judge of such court may be within the state.
History:
Laws 1884, ch. 1, § 50; C.L. 1884, § 2005; C.L. 1897, § 2774; Code 1915, § 3412; C.S. 1929, § 86-102; 1941 Comp., § 26-102; 1953 Comp., § 22-12-2.
ANNOTATIONS
Writ may issue in vacation.
— A judge of a district court may issue a peremptory writ of mandamus in vacation.
Delgado v. Chavez
, 1891-NMSC-012, 5 N.M. 646, 25 P. 948,
aff'd
, 140 U.S. 586, 11 S. Ct. 874, 35 L. Ed. 578 (1891).
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 2 - Mandamus › Section 44-2-8 - [Allowance of writ; return day; service.]

The court or judge, by an indorsement on the writ, shall allow the same, designate the return day thereof and direct the manner of service.
History:
Laws 1884, ch. 1, § 42; C.L. 1884, § 1997; C.L. 1897, § 2765; Code 1915, § 3417; C.S. 1929, § 86-107; 1941 Comp., § 26-108; 1953 Comp., § 22-12-8.
ANNOTATIONS
Law reviews.
— For article, "Mandamus in New Mexico," see 4 N.M. L. Rev. 155 (1974).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
52 Am. Jur. 2d Mandamus §§ 411, 428, 480.
55 C.J.S. Mandamus §§ 319, 321, 350, 351.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 2 - Mandamus › Section 44-2-9 - [Answer to writ.]

On the return day of the alternative writ, or such further day as the court allows, the party on whom the writ is served may show cause by answer, made in the same manner as an answer to a complaint in civil action.
History:
Laws 1884, ch. 1, § 43; C.L. 1884, § 1998; C.L. 1897, § 2766; Code 1915, § 3418; C.S. 1929, § 86-108; 1941 Comp., § 26-109; 1953 Comp., § 22-12-9.
ANNOTATIONS
Cross references.
— For answers generally,
see
Rules 1-008 and 1-012 NMRA.
Where answer requests court to invoke judgment respondent submits to court.
— In a mandamus proceeding to compel board of county commissioners to canvass election returns of a certain precinct where respondents requested the court to inspect the evidence offered with their answer, and bring into court all the returns, certificates, poll books and ballot box, and invoke its judgment as to the legal sufficiency to justify the action of the board, such action on their part is a submission to the court, and they cannot insist on a jury trial nor will they be heard to object that there is no evidence, upon the issue of facts raised by their answer, to support the judgment of the court below in awarding a peremptory writ.
Territory ex rel. Lewis v. Board of County Comm'rs
, 1888-NMSC-015, 5 N.M. (Gild., E.W.S. ed.) 1, 16 P. 855.
Time to answer may be extended and amendments allowed.
— While office of mandamus is to afford a speedy remedy and to avoid delay, this does not mean that the court is without power to extend the time within which a respondent may answer, or that the answer may not be amended, and leave to amend should be freely given when justice demands.
State ex rel. Fitzhugh v. City Council of Hot Springs
, 1952-NMSC-022, 56 N.M. 118, 241 P.2d 100.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
52 Am. Jur. 2d Mandamus §§ 432 to 437.
Absence of appropriation or funds as defense to mandamus to compel payment of salary of public officer or employee, 5 A.L.R. 579.
Unconstitutionality of statute as defense to mandamus proceeding, 30 A.L.R. 378, 129 A.L.R. 941.
55 C.J.S. Mandamus §§ 272 to 274.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 2 - Mandamus › Section 44-2-10 - [Peremptory mandamus on failure to answer; procedure after answer.]

If no answer is made a peremptory mandamus shall be allowed against the defendant; if an answer is made containing new matter, the plaintiff may, on the trial or other proceedings, avail himself of any valid objection to its sufficiency, or may countervail it by evidence either in direct denial or by way of avoidance.
History:
Laws 1884, ch. 1, § 44; C.L. 1884, § 1999; C.L. 1897, § 2767; Code 1915, § 3419; C.S. 1929, § 86-109; 1941 Comp., § 26-110; 1953 Comp., § 22-12-10.
ANNOTATIONS
Answer may assign legal reasons for defense and plead facts.
— The answer to an alternative writ of mandamus under our statutes may assign any legal reasons upon which respondent relies to defeat the writ, as well as plead the facts on which he relies.
State ex rel. Garcia v. Board of Comm'rs
, 1916-NMSC-030, 21 N.M. 632, 157 P. 656.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
52 Am. Jur. 2d Mandamus §§ 441, 442.
55 C.J.S. Mandamus §§ 282 to 284.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 2 - Mandamus › Section 44-2-12 - [Judgment for plaintiff; damages; costs; peremptory writ.]

If judgment is given for the plaintiff, he shall recover the damages which he has sustained, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay.
History:
Laws 1884, ch. 1, § 46; C.L. 1884, § 2001; C.L. 1897, § 2769; Code 1915, § 3421; C.S. 1929, § 86-111; 1941 Comp., § 26-112; 1953 Comp., § 22-12-12.
ANNOTATIONS
Final writ issued in plaintiff's favor is, by law, a peremptory writ of mandamus.
— Where plaintiff, wife of decedent, filed a petition for writ of mandamus against the office of the medical investigator (OMI) and the chief medical investigator requesting the district court compel the OMI to file a corrected death certificate concerning the circumstances of decedent's death, and where defendants filed an answer to the petition, an evidentiary hearing was held, and the district court granted the writ of mandamus, all procedures available for an alternative writ had been exhausted and the final writ, which completely disposed of the case on the merits as a result of judgment in favor of plaintiff, was peremptory. Pursuant to 12-201(A)(2) NMRA, the district court's issuance of a peremptory writ required defendants to file a notice of appeal within thirty days of the district court's issuance of the peremptory writ; where no notice of appeal or motion directed against the judgment was filed within that time, defendants' appeal was untimely.
Hoyt v. State
, 2015-NMCA-108.
Attorney fees incurred by an employee in a mandamus action
to compel the employee's governmental employer to appoint independent defense counsel to defend the employee pursuant to the Tort Claims Act are not recoverable by the employee under this section.
Section
44-2-13 Officer or board refusing to perform duty; fine; other action for penalty barred.
44-2-14 Review of proceedings.Paz v. Tijerina, 2007-NMCA-109,142 N.M. 391, 165 P.3d 1167.
Section permits damage award in conjunction with granting
of a peremptory writ of mandamus. The trial court having denied the writ, appellant cannot recover damages. N.M. Bus Sales v. Michael, 1961-NMSC-034, 68 N.M. 223, 360 P.2d 639.
Attorney fees are not recoverable
as a part of the damages sustained, or costs and disbursements, under this section.
State ex rel. Roberson v. Board of Educ.
, 1962-NMSC-064, 70 N.M. 261, 372 P.2d 832.
This section does not mean that appeal lies from "judgment"
granting writ of mandamus if the issue of damages has not been resolved.
Village of Los Ranchos v. Sanchez
, 2004-NMCA-128, 136 N.M. 528, 101 P.3d 339, cert. denied, 2004-NMCERT-011, 136 N.M. 656, 103 P.3d 580.
Law reviews.
— For survey, "Torts: Sovereign and Governmental Immunity in New Mexico," see 6 N.M. L. Rev. 249 (1976).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
52 Am. Jur. 2d Mandamus §§ 357, 495 to 498.
Allowance of damages to successful plaintiff or relator in mandamus, 73 A.L.R.2d 903, 34 A.L.R.4th 457.
Allowance of attorney's fees in mandamus proceedings, 34 A.L.R.4th 457.
55 C.J.S. Mandamus §§ 342, 375 to 379.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 2 - Mandamus › Section 44-2-13 - [Officer or board refusing to perform duty; fine; other action for penalty barred.]

Whenever a peremptory mandamus is directed to a public officer, body or board, commanding the performance of any public duty specially enjoined by law, if it appears to the court that such officer or any member of such body or board, without just excuse, refuses or neglects to perform the duty so enjoined, the court may impose a fine not exceeding two hundred and fifty dollars [($250)] upon every such officer or member of such body or board; such fine, when collected, shall be paid into the state treasury, and the payment of such fine is a bar to an action for any penalty incurred by such officer or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined.
History:
Laws 1884, ch. 1, § 47; C.L. 1884, § 2002; C.L. 1897, § 2770; Code 1915, § 3422; C.S. 1929, § 86-112; 1941 Comp., § 26-113; 1953 Comp., § 22-12-13.
ANNOTATIONS
This section does not exclude power of court to punish
for disobedience of the writ, or to compel obedience to the writ by imprisonment until compliance.
Delgado v. Chavez
, 1891-NMSC-012, 5 N.M. 646, 25 P. 948,
aff'd
, 140 U.S. 586, 11 S. Ct. 874, 35 L. Ed. 578 (1891).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
52 Am. Jur. 2d Mandamus § 482.
Contempt for disobedience of mandamus, 30 A.L.R. 148.
55 C.J.S. Mandamus §§ 359, 360.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-2 - [Trial; time; use of jury permissive.]

Actions of quo warranto shall be set down and summarily tried as soon as the issues are made up and the court shall have power, if he deems proper, to summon a jury for the purpose and prescribe the manner of summoning the same.
History:
Laws 1919, ch. 28, § 2; C.S. 1929, § 115-102; 1941 Comp., § 26-202; 1953 Comp., § 22-15-2.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quo Warranto §§ 108 to 111.
74 C.J.S. Quo Warranto §§ 44, 46.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-3 - [Name of private relator to be shown.]

When an action shall be brought by the attorney general or district attorney by virtue of this chapter [44-3-1 to 44-3-16 NMSA 1978], on the relation or information of a person or persons, having an interest in the question, the name of such person shall be joined with the state as relator.
History:
Laws 1919, ch. 28, § 3; C.S. 1929, § 115-103; 1941 Comp., § 26-203; 1953 Comp., § 22-15-3.
ANNOTATIONS
Proceedings must be brought in name of state.
— Quo warranto proceedings to contest a state office must be brought in the name of the state.
State ex rel. Hannett v. District Court
, 1925-NMSC-004, 30 N.M. 300, 233 P.2d 1002.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quo Warranto §§ 61, 62, 64.
Right of corporation to act as relator in information in the nature of quo warranto, 1 A.L.R. 197.
74 C.J.S. Quo Warranto §§ 25, 27.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-5 - [Cost bond to be posted by private relator.]

Before any writ shall issue in an action brought upon the complaint or information of a private relator under the provisions of this act [44-3-1 to 44-3-16 NMSA 1978], such private person shall file with the clerk of the court issuing such writ a cost bond in an amount to be fixed by the court, executed and acknowledged as required by law in the case of supersedeas bonds on appeal, to be approved by the clerk of said court, conditioned as now required by law in the case of cost bonds in the district court.
History:
Laws 1919, ch. 28, § 5; C.S. 1929, § 115-105; 1941 Comp., § 26-205; 1953 Comp., § 22-15-5.
ANNOTATIONS
Failure to give cost bond will not defeat jurisdiction
where the defendant has made a general appearance.
State ex rel. Besse v. District Court
, 1925-NMSC-025, 31 N.M. 82, 239 P. 452.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 65 Am. Jur. 2d Quo Warranto § 59.
74 C.J.S. Quo Warranto § 17.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-7 - [Right to elective office; allegations concerning election.]

In all actions brought to determine the right to any office it shall be necessary for the plaintiff or relator whenever the defendant is in possession of the office in controversy under a certificate of election issued by the proper officer or board of canvassers, to state in his complaint in what respect such certificate was improperly or illegally issued; and in case it is claimed that the relator received a majority of legal votes cast for the office at any legal election to fill such office he shall also state in such complaint the number of legal votes cast, as far as he may be able so to do, for the relator and for the defendant for such office respectively, and also the number of votes cast for the relator and for the defendant respectively for such office, as determined by the legal canvass of such election.
History:
Laws 1919, ch. 28, § 7; C.S. 1929, § 115-107; 1941 Comp., § 26-207; 1953 Comp., § 22-15-7.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quo Warranto § 89.
Admissibility of election ballots in quo warranto proceedings, 71 A.L.R.2d 353.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-8 - [Time of hearing demurrer, amending complaint, filing answer and trial; application for continuance.]

If a demurrer to the complaint in such actions be filed by the defendant the same shall be heard and determined within six days from the date of service of a copy upon counsel for the plaintiff and relator, and if the demurrer is sustained, plaintiff and relator will be given not to exceed five days to amend the complaint, and if it is overruled then the defendant shall have a like time to file the answer, provided that upon good cause shown the court may extend the time of either party, but in no event shall the time be extended to either party more than four days. The issue as finally made shall stand for trial forthwith; and no continuance of any such cause shall be granted upon the application of either party unless he shall show the absence of a witness or other testimony and they shall be deemed material by the court. The plaintiff or relator may traverse or offer counter evidence to the facts set forth in such application for continuance.
History:
Laws 1919, ch. 28, § 8; C.S. 1929, § 115-108; 1941 Comp., § 26-208; 1953 Comp., § 22-15-8.
ANNOTATIONS
Cross references.
— For the abolition of demurrers except in special statutory proceedings where the existing rules conflict,
see
Rules 1-001 and 1-007C NMRA.
Erroneous for court overruling demurrer to render final judgment.
— It is a fundamental rule of law that it is ordinarily erroneous for a court on overruling a demurrer (now a motion) to render final judgment.
State v. Rodriguez
, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005.
No provisions for demurrer to amended complaint which is sustained.
— This statute makes no provisions for a case where the amended complaint has been filed, followed by a second demurrer (now a motion) which is sustained and an appeal taken to the supreme court.
State v. Rodriguez
, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005.
If second demurrer overruled on appeal, time to answer given.
— Where an amended complaint was filed in quo warranto action, and second demurrer (now a motion) thereto was sustained, and, on appeal to supreme court, the demurrer (now a motion) was, in effect, overruled, defendants should be granted statutory time within which to answer.
State v. Rodriguez
, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quo Warranto §§ 95, 98.
74 C.J.S. Quo Warranto §§ 40, 41.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-9 - [Judgment; nature; expiration of term of office before rendition.]

In every case such judgment shall be rendered upon the right of the defendant and also upon the right of the party alleged to be entitled, or only upon the right of the defendant, as justice may require. When the action shall not be terminated during the term of the office in controversy it may notwithstanding be prosecuted to completion and judgment rendered, which shall determine the right which any party had to the office, and to the fees and emoluments thereof.
History:
Laws 1919, ch. 28, § 9; C.S. 1929, § 115-109; 1941 Comp., § 26-209; 1953 Comp., § 22-15-9.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quo Warranto § 112.
74 C.J.S. Quo Warranto § 48.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-10 - [Judgment for relator claiming office; provisions for changing possession; enforcement; punishment for contempt.]

If the judgment be rendered in favor of the person so alleged to be entitled to the office, it shall provide that upon his qualification as required by law, he shall immediately thereafter demand of the defendant in the action all the books and papers and insignia of the office in his custody and control and that the defendant shall immediately comply therewith by turning over to him all of said books, papers and insignia of the office. If the defendant fails or in any wise [way] refuses to comply with said demand, the plaintiff or relator shall have an order of the court in said proceeding citing the defendant as for contempt and directing him to show cause why he should not be punished therefor and, if upon the hearing it be shown that the defendant was guilty of disobeying such order, the court shall impose a fine of not less than one hundred ($100.00) dollars, and not more than one thousand ($1,000.00) dollars, or not less than thirty (30) days nor more than ninety (90) days in the county jail, or both such fine and imprisonment within the limits stated. In addition the court may direct the further imprisonment of the party in contempt until he complies with the order of the court. In addition to the foregoing such proceedings may be had as are provided for by law to compel the delivery of such papers, books and insignia of office.
History:
Laws 1919, ch. 28, § 10; C.S. 1929, § 115-110; 1941 Comp., § 26-210; 1953 Comp., § 22-15-10.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For contempt proceedings,
see
34-1-2 to 34-1-5 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quo Warranto §§ 114, 116, 120.
74 C.J.S. Quo Warranto §§ 48 to 50.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-11 - [Costs.]

The prevailing party in such proceedings may recover his costs from his opponent, provided that no costs shall be taxable against the state nor the attorney general when acting as relator, but such costs shall be taxable against and recovered from a private relator whenever the judgment is for the defendant.
History:
Laws 1919, ch. 28, § 11; C.S. 1929, § 115-111; 1941 Comp., § 26-211; 1953 Comp., § 22-15-11.
ANNOTATIONS
Cross references.
— For provision concerning costs in judgment finding defendant guilty of usurpation of office,
see
44-3-14 NMSA 1978.
This section rather than civil rule governs costs.
— In an action in quo warranto, the taxation of costs, other than the receivership costs, is governed by this section (costs in quo warranto proceedings) rather than by Rule 54(d), N.M.R. Civ. P. (now Rule 1-054D NMRA).
White v. Clevenger
, 1962-NMSC-144, 71 N.M. 80, 376 P.2d 31.
This section exempts the state and attorney general from costs.
State ex rel. Hannett v. District Court
, 1925-NMSC-004, 30 N.M. 300, 233 P. 1002.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quo Warranto §§ 118, 131.
74 C.J.S. Quo Warranto § 52.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-12 - [Judgment for relator claiming office; provisions concerning compensation; separate action for damages.]

When the judgment is for the person so alleged to be entitled to the office, he may have included therein a money judgment against the defendant and the surety or sureties on his bond, if furnished as in Section 6 [44-3-6 NMSA 1978] provided, for all fees and emoluments collected by him during the term involved in such case with interest thereon at six percent per annum; and he may recover by separate action the damages which he shall have sustained by reason of the usurpation by the defendant of the office from which by virtue of said judgment said defendant has been excluded.
History:
Laws 1919, ch. 28, § 12; C.S. 1929, § 115-112; 1941 Comp., § 26-212; 1953 Comp., § 22-15-12.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quo Warranto § 117.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-13 - [Joinder of defendants.]

When several persons claim to be entitled to the same office or franchise, or if they collectively claim to be entitled to exercise the franchise of a corporation created by the authority of this state, one action may be brought against all such persons in order to try their, and each of their, respective rights to such office or franchise.
History:
Laws 1919, ch. 28, § 13; C.S. 1929, § 115-113; 1941 Comp., § 26-213; 1953 Comp., § 22-15-13.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quo Warranto § 83.
74 C.J.S. Quo Warranto § 32.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-14 - [Judgment finding defendant guilty of usurpation of office; provisions concerning exclusion and costs.]

When a defendant against whom such action shall have been brought shall be adjudged guilty of usurping or intruding into or unlawfully holding or exercising any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from such office, franchise or privilege, and that the plaintiff recover costs against such defendant.
History:
Laws 1919, ch. 28, § 14; C.S. 1929, § 115-114; 1941 Comp., § 26-214; 1953 Comp., § 22-15-14.
ANNOTATIONS
Cross references.
— For costs generally,
see
44-3-11 NMSA 1978.
Quo warranto is not proper remedy to test alleged misconduct
of a corporate officer as grounds for removal.
White v. Clevenger
, 1962-NMSC-144, 71 N.M. 80, 376 P.2d 31.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quo Warranto §§ 116 to 118.
74 C.J.S. Quo Warranto §§ 49, 50, 52.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-15 - [Election contest statutes unaffected.]

This act [44-3-1 to 44-3-16 NMSA 1978] shall not be construed to in any way affect the provisions of the statutes now in force in relation to election contests.
History:
Laws 1919, ch. 28, § 15; C.S. 1929, § 115-115; 1941 Comp., § 26-215; 1953 Comp., § 22-15-15.
ANNOTATIONS
Compiler's notes.
— Provisions for election contests, when this section was enacted, were codified as 2066 to 2080, 1915 Code. These provisions were subsequently repealed by Laws 1927, ch. 41, § 722 (the 1927 Election Code which has subsequently been repealed). For present provisions as to contest, see 1-14-1 to 1-14-21 NMSA 1978.
Quo warranto is not cumulative remedy
or one in addition to any special statutory remedy for contesting elections contained in the Election Code.
State v. Rodriguez
, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005.
Section superseded by former Election Code.
— Provisions relating to contest of elections in 1927 Election Code enacted after this section sets up an exclusive remedy and supersedes the remedy by statutory quo warranto.
State ex rel. Abercrombie v. Dist. Court
, 1933-NMSC-057, 37 N.M. 407, 24 P.2d 265.
Statutory remedy for contesting elections to public office is exclusive,
and has superseded quo warranto.
Orchard v. Board of Comm'rs
, 1938-NMSC-011, 42 N.M. 172, 76 P.2d 41 (decided under former election laws).
If other election provision applies, quo warranto is not available.
— Quo warranto is no longer available to an unsuccessful candidate if the contest procedure established by the Election Code applies to the public office in question.
State v. Rodriguez
, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005 (decided under former Election Code).
Writ lies if no other statutory provision exists.
— Quo warranto was a proper action to bring since there was no provision in the Election Code or other related statutes providing for contests for municipal school board elections.
State v. Rodriguez
, 1958-NMSC-136, 65 N.M. 80, 332 P.2d 1005 (decided under former Election Code).
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 3 - Quo Warranto › Section 44-3-16 - [Speedy hearing on appeal.]

In case of an appeal the supreme court shall advance the case on the docket of said court so as to obtain the most speedy hearing possible.
History:
Laws 1919, ch. 28, § 16; C.S. 1929, § 115-116; 1941 Comp., § 26-216; 1953 Comp., § 22-15-16.
ANNOTATIONS
Cross references.
— For appeals generally,
see
Rules 12-201 to 12-216 NMRA.
Section presupposes a right to appeal.
— Although this article (Sections 44-3-1 to 44-3-16 NMSA 1978) does not provide for an appeal, it presupposes an appeal under this section.
State ex rel. Besse v. Dist. Court
, 1925-NMSC-025, 31 N.M. 82, 239 P. 452.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 65 Am. Jur. 2d Quo Warranto § 124.
Determination of issues of fact involved in original quo warranto proceedings in appellate court, 98 A.L.R. 237.
74 C.J.S. Quo Warranto § 51.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 4 - Actions Against Receivers (Repealed.) › Section 44-4-1 to 44-4-5 - Repealed.

ANNOTATIONS
Repeals.
— Laws 1995, ch. 81, § 11 repealed 44-4-1 to 44-4-5 NMSA 1978, as enacted by Laws 1917, ch. 72, §§ 1 through 5, relating to actions against receivers, effective June 16, 1995. For provisions of former sections,
see
the 1994 NMSA 1978 on
NMOneSource.com
. For present provisions relating to receivers,
see
Chapter 44, Article 8 NMSA 1978.
2023 New Mexico Statutes › Chapter 44 - Miscellaneous Civil Law Matters › Article 5 - Gambling Debts and Losses › Section 44-5-2 - [Contents of complaint.]

In such action it shall be sufficient for the plaintiff to declare generally as in actions for debt for money had and received for the plaintiff's use, or as in actions of trover or detinue for a supposed finding and the detaining or converting the property of the plaintiff to the use of the defendant whereby an action hath accrued to the plaintiff.
History:
Laws 1856-1857, p. 36; C.L. 1865, ch. 36, § 2; C.L. 1884, § 2291; C.L. 1897, § 3200; Code 1915, § 2508; C.S. 1929, § 58-102; 1941 Comp., § 25-1002; 1953 Comp., § 22-10-2.
ANNOTATIONS
Cross references.
— For the contents of a claim for relief,
see
Rule 1-008A NMRA.
Action is against party receiving thing wagered.
— These provisions give a right of action not against the party theoretically winning the wager, but against one to whom the amount or thing wagered has been delivered.
Armstrong v. Aragon
, 1905-NMSC-003, 13 N.M. 19, 79 P. 291.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
38 Am. Jur. 2d Gambling § 257.
38 C.J.S. Gaming § 62.