2023 New Mexico Statutes › Chapter 39 - Judgments, Costs, Appeals › Article 4 - Recovery on Judgments › Section 39-4-3 - [Levy; insufficient property; garnishment proceedings.]

When any execution shall be placed in the hands of any officer for collection, he shall call upon the defendant for payment thereof, or to show him sufficient goods, chattels, effects and lands, whereof the same may be satisfied; and if the officer fail to find property sufficient to make the same he shall notify all persons who may be indebted to said defendant not to pay said defendant, but to appear before the court, out of which said execution issued, and make true answers, on oath, concerning his indebtedness, and the like proceedings shall be had as in cases of garnishees, summoned in suits originating by attachments.
History:
Kearny Code, Executions, § 3; C.L. 1865, ch. 34, § 3; C.L. 1884, § 2159; C.L. 1897, § 3107; Laws 1901, ch. 49, § 1; Code 1915, § 2192; C.S. 1929, § 46-103; 1941 Comp., § 21-103; 1953 Comp., § 24-1-3.
ANNOTATIONS
Cross references.
— For taxing of bill of costs against defendant in execution,
see
39-2-11 NMSA 1978.
For garnishment,
see
35-12-1 NMSA 1978 et seq.
For attachment,
see
42-9-1 NMSA 1978 et seq.
For rule regarding proceedings supplementary to judgment,
see
Rule 1-069 NMRA.
Constitutionality.
— The part of the section allowing, in effect, a writ of garnishment to be signed by the sheriff is not unconstitutional, as process not signed and attested by the court clerk, as this notice is merely in aid of the execution in the hands of the sheriff, and has the effect of tying up any money the garnishee may owe the defendant.
Hinds v. Velasquez
, 1957-NMSC-092, 63 N.M. 282, 317 P.2d 899.
No implicit repeal.
— Laws 1909, ch. 63 (former 26-2-1, 1953 Comp., et seq.), regarding garnishment, did not repeal the garnishment feature of this section.
Hinds v. Velasquez
, 1957-NMSC-092, 63 N.M. 282, 317 P.2d 899.
Provisions not inconsistent.
— There was no inconsistency between former general garnishment statute (26-2-1, 1953 Comp. et seq.) and that part of this section which is to be used in aid of execution.
Hinds v. Velasquez
, 1957-NMSC-092, 63 N.M. 282, 317 P.2d 899.
Strict construction.
— This section is in derogation of the common law and must be strictly construed.
Hinds v. Velasquez
, 1957-NMSC-092, 63 N.M. 282, 317 P.2d 899.
Section directory.
— This section means that it is the duty of the sheriff to make demand for the payment of the debt upon the debtor, but it is directory.
Inman v. Brown
, 1955-NMSC-018, 59 N.M. 196, 281 P.2d 474.
No demand is contemplated where debtor is without sheriff's jurisdiction
or otherwise so situated that a demand cannot readily be made upon him.
Inman v. Brown
, 1955-NMSC-018, 59 N.M. 196, 281 P.2d 474.
No demand is necessary where the debtor lives outside the jurisdiction of the sheriff, and no authorized agent of the debtor is known to the sheriff or can be ascertained with reasonable diligence.
Pecos Valley Lumber Co. v. Friedenbloom
, 1917-NMSC-067, 23 N.M. 383, 168 P. 497.
Notice ineffectual.
— A notice to trustee of notice of levy without notice to appear and answer execution is ineffectual.
Citizens' Nat'l Bank v. First Nat'l Bank
, 1924-NMSC-011, 29 N.M. 273, 222 P. 935.
Sale not invalid.
— Where owner of a barber shop, fixtures of which were to be sold under execution, had left a man in charge whom he regarded as his agent, but who failed to act as agent and did not transmit to the owner notice of proposed sale, such facts did not invalidate the sale.
Pecos Valley Lumber Co. v. Friedenbloom
, 1917-NMSC-067, 23 N.M. 383, 168 P. 497.
Effect of variance.
— A variance between the amount of the execution and the amount of the judgment does not render the execution void, but voidable. It may be amended at any time, even on the return day, or after its return, to conform; and such variance is no defense to the action.
Bachelder Bros. v. Chaves
, 1891-NMSC-007, 5 N.M. 562, 25 P. 783.
Prerequisites for jurisdiction in garnishment.
— In garnishment proceedings, the plaintiff cannot subject the third party to the jurisdiction of the court unless he has complied with the statutory prerequisites.
Garland v. Sperling Bros.
, 1892-NMSC-027, 6 N.M. 623, 30 P. 925,
aff'd
, 1893-NMSC-011, 7 N.M. 121, 32 P. 499.
A district court does not have jurisdiction of an escrow fund allegedly held by a title company for the benefit of a defendant unless the record supports the conclusion that the title company was indebted to the defendants within the meaning of this section, and unless the sheriff first made demand on the judgment debtor.
Title Guar. & Ins. Co. v. Campbell
, 1987-NMCA-107, 106 N.M. 272, 742 P.2d 8.
Existing and absolute debt essential.
— In garnishment, in aid of execution, it is essential that the garnishee's debt to the judgment debtor be in existence at the time of the serving of the garnishment summons, absolutely and unconditionally owing and payable at the present or some future time.
Garland v. Sperling Bros.
, 1892-NMSC-027, 6 N.M. 623, 30 P. 925,
aff'd
, 1893-NMSC-011, 7 N.M. 121, 32 P. 499.
Issues in garnishment proceedings.
— In garnishment proceedings by judgment creditor, under execution issued upon the judgment against a debtor of defendant, where garnishee's answer denied the indebtedness and denied fraud, the issue was not only as to the facts of indebtedness and fraud, but also as to the amount of indebtedness, and verdict that the answer was not true was a finding on only part of the issue, insufficient to support a judgment.
Perea v. Colorado Nat'l Bank
, 1891-NMSC-015, 6 N.M. 1, 27 P. 322.
Status of garnishee.
— A garnishee stands, as nearly as possible, in the same position he would occupy if sued at law by his creditor.
Field v. Sammis
, 1903-NMSC-013, 12 N.M. 36, 73 P. 617.
Measure of garnishee's liability.
— Garnishee's liability, legal and equitable, to the principal debtor is the measure of his liability.
Field v. Sammis
, 1903-NMSC-013, 12 N.M. 36, 73 P. 617.
Answer of garnishee was prima facie evidence of facts therein
set forth, so that burden of proof was on plaintiff, and evidence offered to controvert the answer presented an issue of fact for the jury; the court therefore erred in directing a verdict for the plaintiff.
Perea v. Colorado Nat'l Bank
, 1891-NMSC-015, 6 N.M. 1, 27 P. 322.
Mortgagee.
— Mortgagee in possession, with right to buy if mortgagor did not pay by specified time, was not subject to garnishment, in aid of execution, at instance of mortgagor's judgment creditor.
Garland v. Sperling Bros.
, 1892-NMSC-027, 6 N.M. 623, 30 P. 925,
aff'd
, 1893-NMSC-011, 7 N.M. 121, 32 P. 499.
Third party may intervene in garnishment proceeding arising under execution,
and set up rights legal or equitable, in the funds sought to be recovered.
Field v. Sammis
, 1903-NMSC-013, 12 N.M. 36, 73 P. 617.
Judgment against garnishee void.
— As there is no provision, whatever, allowing a court to render judgment against a garnishee for more than could be recovered against him by the principal debtor, and none for judgment solely because of default, it follows that judgment rendered against the garnishee because he failed to answer within the time required by law and not upon a showing of actual indebtedness owed by the garnishee to the defendant was void on the face of the record.
Hinds v. Velasquez
, 1957-NMSC-092, 63 N.M. 282, 317 P.2d 899.
Exemption.
— The $500 exemption in lieu of homestead may be claimed out of current wages which have been garnished.
McFadden v. Murray
, 1927-NMSC-039, 32 N.M. 361, 257 P. 999.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 30 Am. Jur. 2d Executions § 203 et seq.
Garnishment in other state of debt or claim as ground for suspension of execution on judgment on debt in proceeding in state, 91 A.L.R. 967.
Priority right of creditor who institutes supplementary proceedings over other creditors in respect of proceeds of judicial sale, 92 A.L.R. 1435, 153 A.L.R. 211.
Special bank deposits as subject of attachment or garnishment to satisfy depositor's general obligations, 8 A.L.R.4th 998.
Garnishee's duty to give debtor notice of garnishment prior to delivery of money without judgment against the garnishee on the debt, 36 A.L.R.4th 824.
Sufficiency, as to content, of notice of garnishment required to be served upon garnishee, 20 A.L.R.5th 229.
38 C.J.S. Garnishment § 19.