2023 New Mexico Statutes › Chapter 38 - Trials › Article 3 - Venue; Change of Judge › Section 38-3-10 - Time for filing affidavit of disqualification.

The affidavit of disqualification shall be filed within ten days after the cause is at issue or within ten days after the time for filing a demand for jury trial has expired, or within ten days after the judge sought to be disqualified is assigned to the case, whichever is the later.
History:
Laws 1933, ch. 184, § 2; 1941 Comp., § 19-509; 1953 Comp., § 21-5-9; Laws 1971, ch. 123, § 1; 1977, ch. 228, § 2.
ANNOTATIONS
Notice of name of trial judge not essential to section.
— Notice to the parties of the name of a particular judge assigned to try the case is not an essential ingredient in the time period fixed by this section.
Gerety v. Demers
, 1978-NMSC-097, 92 N.M. 396, 589 P.2d 180.
In a criminal case, a case is put at issue when a defendant answers by appearing at his arraignment.
State v. Padilla
, 1975-NMCA-084, 88 N.M. 160, 538 P.2d 802, cert. denied, 88 N.M. 318, 540 P.2d 248;
Gray v. Sanchez
, 1974-NMSC-011, 86 N.M. 146, 520 P.2d 1091.
In a civil case, a case is at issue at that state of procedure when an answer is filed
which requires no further pleadings by the plaintiff.
Gray v. Sanchez
, 1974-NMSC-011, 86 N.M. 146, 520 P.2d 1091.
For purpose of disqualification, a "case is at issue" at that stage of procedure when an answer is filed which requires no further pleadings by the plaintiff.
Atol v. Schifani
, 1971-NMCA-153, 83 N.M. 316, 491 P.2d 533.
For trial de novo on appeal from decision of human rights commission, the cause is not at issue until the transcript
of the hearing below is filed in the district court.
Linton v. Farmington Mun. Schs.
, 1974-NMSC-079, 86 N.M. 748, 527 P.2d 789.
Affidavit to disqualify a district judge must be filed before a party has called upon the court to act judicially
upon any material issue and before he has participated in any proceeding upon any such issue presented by the adverse party.
State ex rel. Lebeck v. Chavez
, 1941-NMSC-016, 45 N.M. 161, 113 P.2d 179;
State ex rel. Weltmer v. Taylor
, 1938-NMSC-035, 42 N.M. 405, 79 P.2d 937.
Whether other matters between other parties had been disposed of, unless they directly affected defendants, was immaterial in deciding whether cause was at issue at time certain defendants filed their affidavits of disqualification of trial judge.
State ex rel. Lebeck v. Chavez
, 1941-NMSC-016, 45 N.M. 161, 113 P.2d 179.
Disqualification affidavit must be filed before the court has acted judicially upon a material issue.
State ex rel. Howell v. Montoya
, 1965-NMSC-005, 74 N.M. 743, 398 P.2d 263.
Time for filing disqualification motion based on nonstatutory grounds.
— Although not strictly limited by the time limitations of this section, a disqualification motion based on one of the nonstatutory grounds must nevertheless be filed within a reasonable time after the party becomes aware of the grounds for it.
United Nuclear Corp. v. General Atomic Co.
, 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981).
Affidavit held timely filed.
— In proceedings for contempt, an affidavit for disqualification of judge filed on the same day as an order to show cause citing relator for contempt was timely filed.
State ex rel. Simpson v. Armijo
, 1934-NMSC-028, 38 N.M. 280, 31 P.2d 703.
A party who files an affidavit or disqualification immediately after a claim for relief is filed is not one who is guilty of the recurrent abuses to which the statute is constantly being put, and his affidavit is timely filed.
Martinez v. Carmona
, 1980-NMCA-139, 95 N.M. 545, 624 P.2d 54, cert. quashed, 95 N.M. 593, 624 P.2d 535 (1981).
Affidavit held not timely filed.
— In adoption proceedings, where plaintiff opposed the intervention of another party and offered proof on the motion of such party seeking temporary custody, affidavit filed thereafter to disqualify the judge was not timely.
Hill v. Patton
, 1938-NMSC-068, 43 N.M. 21, 85 P.2d 75.
Disqualification affidavit filed after subpoena directing judgment debtor to appear concerning his ability to satisfy a judgment previously entered against him was issued was not timely and the district court could properly hold debtor in contempt for his refusal to answer questions in supplementary proceeding.
State ex rel. Howell v. Montoya
, 1965-NMSC-005, 74 N.M. 743, 398 P.2d 263.
Affidavit of disqualification was not timely filed where district judge already had performed judicial acts in refusing to make a commitment on a motion for continuance and in allowing the withdrawal of a plea of not guilty.
State v. Cline
, 1961-NMSC-151, 69 N.M. 305, 366 P.2d 441.
Request for continuance by the defendant called upon the court to exercise discretion in its judicial capacity, and such action was sufficient to render the subsequent filing of the affidavit of disqualification untimely.
State v. Hester
, 1962-NMSC-099, 70 N.M. 301, 373 P.2d 541.
Trial judge's presiding over defendant's arraignment and ruling on his motion to dismiss constituted judicial act within the scope of this section, so that affidavit of disqualification filed after those acts took place was not timely filed.
State v. Budau
, 1973-NMCA-151, 86 N.M. 21, 518 P.2d 1225, cert. denied, 86 N.M. 5, 518 P.2d 1209 (1974).
Defendant's oral attempt to disqualify a certain judge immediately prior to the start of the trial, coupled with filing of a statutory affidavit of disqualification while the jury was deliberating on its verdict, was not timely where no provisional affidavit of disqualification was filed 10 days or more before the beginning of the term of court.
State v. Sanchez
, 1974-NMCA-012, 86 N.M. 68, 519 P.2d 304.
Where defendant's case was originally set for jury trial by the trial court on July 30, was continued at the request of defendant's counsel to September 10, defendant's affidavit of disqualification, filed on November 21, was not timely, and the trial court committed no error in striking it.
State v. Padilla
, 1975-NMCA-084, 88 N.M. 160, 538 P.2d 802, cert. denied, 88 N.M. 318, 540 P.2d 248.
Action to consolidate was not placed at issue
for purposes of timely filing affidavits of disqualification until date when defendants filed response to plaintiff's second amended petition required to effectively add crucial party to proposed consolidated arbitration.
Pueblo of Laguna v. Cillessen & Son
, 1984-NMSC-060, 101 N.M. 341, 682 P.2d 197.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Adequacy of defense counsel's representation of criminal client regarding venue and recusation matters, 7 A.L.R.4th 942.
Judge's previous legal association with attorney connected to current case as warranting disqualification, 85 A.L.R.4th 700.