reglab/statecodes huggingface dataset:
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 6 - Quieting Title › Section 42-6-16 - [State exempt from payment of costs or money judgment.]

No judgment for costs or other money judgment shall be rendered against the state in any suit or proceeding which may be instituted under the provisions of this act [42-6-12 to 42-6-16 NMSA 1978]. Nor shall the state be or become liable for the payment of the costs of any such suit or proceeding or any part thereof.
History:
1941 Comp., § 25-1316, enacted by Laws 1947, ch. 150, § 5; 1953 Comp., § 22-14-16.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 6 - Quieting Title › Section 42-6-17 - Effect of decree against state.

A decree quieting title against the state is effective only against a claim, interest or lien of the state that has been set forth in the pleading served upon the state with sufficient factual detail to give the state reasonable notice of the basis of the claim, interest or lien sought to be quieted; provided, however, that service of a copy of the complaint on the state tax commission [property tax division of the taxation and revenue department], identifying the land, and setting out all delinquent taxes shown on the county tax rolls, pertaining to such land, shall be deemed sufficient notice to the state of all claims of the state arising out of delinquent ad valorem taxes or unrecorded instruments of title and any decree quieting title against the state shall be effective to cut off any claim arising from such unrecorded instrument of title or claim for unpaid taxes.
History:
1953 Comp., § 22-14-17, enacted by Laws 1965, ch. 176, § 1; 1969, ch. 111, § 2.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law. The state tax commission was abolished by Laws 1970, ch. 31, § 22. The 1970 act, now repealed, created the property appraisal department, to which the powers and duties of the state tax commission were transferred. Laws 1973, ch. 258, § 3 created the property tax department, to which the property, records and appropriations of the property appraisal department were transferred. Laws 1977, ch. 249, § 5 abolished the property tax department, while Laws 1977, ch. 249, § 4 created the taxation and revenue department, consisting of the revenue division, the property tax division and the oil and gas accounting division.
See
7-2-2 and 9-11-4 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
65 Am. Jur. 2d Quieting Title §§ 10, 24, 65, 87 to 92.
74 C.J.S. Quieting Title §§ 96, 103 to 108.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 7 - Specific Performance › Section 42-7-2 - [Service by publication.]

Service by publication may be had in all actions brought under Section 1 [42-7-1 NMSA 1978] of this act when it is made to appear by affidavit that any defendant is a nonresident of the state.
History:
Laws 1933, ch. 9, § 2; 1941 Comp., § 25-1602; 1953 Comp., § 22-18-2.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
62B Am. Jur. 2d Process § 158; 71 Am. Jur. 2d Specific Performance § 186.
Constructive service on nonresident, 93 A.L.R. 621, 173 A.L.R. 985.
81A C.J.S. Specific Performance § 146.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 7 - Specific Performance › Section 42-7-3 - [Affidavit for service by publication.]

Before service can be made by publication an affidavit must be filed in the action showing the cause to be one for the specific performance of a contract for the sale of real estate, and that the defendant to be served with process is a nonresident of the state, and it being shown to the satisfaction of the court that the defendant is in fact a nonresident, the court shall order service by publication.
History:
Laws 1933, ch. 9, § 3; 1941 Comp., § 25-1603; 1953 Comp., § 22-18-3.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For service by publication,
see
Rule 1-004H NMRA.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
71 Am. Jur. 2d Specific Performance § 186.
Treatment, under Federal Juvenile Delinquency Act (18 USCS §§ 5031-5042), of juvenile alleged to have violated law of United States, 137 A.L.R. Fed. 481.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 7 - Specific Performance › Section 42-7-4 - [Effect of decree; compelling conveyance.]

Whenever in an action under the provisions of this act [42-7-1 to 42-7-4 NMSA 1978] a decree of specific performance is made it shall act upon the land itself and the court may compel a conveyance of the real estate by attachment or appoint a commission to make the conveyance.
History:
Laws 1933, ch. 9, § 4; 1941 Comp., § 25-1604; 1953 Comp., § 22-18-4.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For enforcement of judgment for specific acts,
see
Rule 1-070 NMRA.
Absolute certainty in contract not required to support decree.
— While a contract to convey real estate must be definite and certain before it will be enforced, absolute certainty in a contract is not required in order to support a decree of specific performance; reasonable certainty is all that is required.
Whattey v. Colcott
, 1956-NMSC-100, 61 N.M. 455, 302 P.2d 514.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
71 Am. Jur. 2d Specific Performance §§ 221 to 226.
Awarding damages for delay, 95 A.L.R. 228.
Depreciation in value of property itself, or in its market price or value, subsequent to defendant's fault, right of one seeking specific performance to recover as damages amount measured by, 105 A.L.R. 1421.
Treatment, under Federal Juvenile Delinquency Act (18 USCS §§ 5031-5042), of juvenile alleged to have violated law of United States, 137 A.L.R. Fed. 481.
81A C.J.S. Specific Performance §§ 199, 200, 208, 215 to 219.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-2 - [Cross-replevin; property in hands of officer.]

No cross-replevin or replevin for property in the hands of an officer shall be brought, except as herein provided.
History:
C.L. 1897, § 2685 (229), added by Laws 1907, ch. 107, § 1 (229); Code 1915, § 4341; C.S. 1929, § 105-1702; 1941 Comp., § 25-1502; 1953 Comp., § 22-17-2.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Effect of third person claiming right to possession against sheriff.
— An action of replevin by a third person, claiming the right to possession, against the sheriff, for the recovery of personal property seized by him under a valid writ of attachment, in the regular discharge of his duties as such, will not lie, either at common law or under the statute.
Butts v. Woods
, 1888-NMSC-004, 4 N.M. (Gild.) 343, 16 P. 617 (decided under former law).
Law reviews.
— For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
66 Am. Jur. 2d Replevin §§ 20, 25, 33.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-4 - [Remedy against corporation same as against individual.]

Suits of replevin may be commenced and carried to a conclusion against any incorporated company in this state in all cases that may be begun and carried against any ordinary defendants.
History:
C.L. 1897, § 2685 (231), added by Laws 1907, ch. 107, § 1 (231); Code 1915, § 4343; C.S. 1929, § 105-1704; 1941 Comp., § 25-1504; 1953 Comp., § 22-17-4.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
66 Am. Jur. 2d Replevin § 38.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-6 - Replevin bond; when filed; parties; conditions.

The plaintiff shall before the execution of the writ enter into bond with sufficient sureties, to the officer to whom the writ is directed, in double the value of the property, conditioned on the prosecution of the suit with effect and without delay and that he will without delay make return of the property if a return is adjudged, keep harmless the officer and pay all costs that may accrue.
History:
C.L. 1897, § 2685 (233), added by Laws 1907, ch. 107, § 1 (233); Code 1915, § 4345; C.S. 1929, § 105-1706; 1941 Comp., § 25-1506; 1953 Comp., § 22-17-6; Laws 1975, ch. 249, § 2.
ANNOTATIONS
Cross references.
— For approval and filing of bond when suit against sheriff,
see
42-8-9 NMSA 1978.
For the issuance of writs by the judge of the district court, and approval of bond,
see
42-8-18 NMSA 1978.
For suit on replevin bond,
see
46-6-7 NMSA 1978.
Writ served only by giving bond.
— Writ of replevin may be required to be served only upon the giving of the bond specified herein.
Troy Laundry Mach. Co. v. Carbon City Laundry Co.
, 1921-NMSC-038, 27 N.M. 117, 196 P. 745.
When failure to give bond not cause for dismissal.
— Action should not be dismissed for failure to give bond prior to the issuance of the writ, where there was an appearance and pleading to the merits. Objection should have been taken by motion before pleading to the merits.
Laird v. Upton
, 1897-NMSC-012, 8 N.M. 409, 45 P. 1010 (decided under former law).
Under former law, bond not jurisdictional.
— Laws 1865, ch. 35, § 3, did not require the giving of the bond prior to the issuance of the writ except where the action was against the sheriff, for the giving of the bond was not jurisdictional.
Laird v. Upton
, 1897-NMSC-012, 8 N.M. 409, 45 P. 1010 (decided under former law).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
66 Am. Jur. 2d Replevin §§ 19, 33, 34, 58 to 60, 86.
Loss or destruction of property pending replevin action as affecting liability under bond given therein, 31 A.L.R. 1290.
77 C.J.S. Replevin § 46 et seq.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-8 - [Requiring additional security.]

Any person plaintiff or defendant in any replevin suits pending in any court in this state, may at any time before judgment, after reasonable notice to the person by whom any bond has been given in any such suit, move the court for additional security on the part of any such principal in such bond, and if, on such motion, the court is satisfied that any surety on such bond has removed from the state or that for any other reason such bond is not sufficient security for the amount thereof, it may direct a new and sufficient bond to be given within a reasonable time, to be fixed by the court, and in default thereof may make such order disposing of the property, the possession of which is held by virtue of such bond, as the failure to give such additional security may require and such orders may be made in vacation as well as in term time.
History:
C.L. 1897, § 2685 (234), added by Laws 1907, ch. 107, § 1 (234); Code 1915, § 4346; C.S. 1929, § 105-1707; 1941 Comp., § 25-1508; 1953 Comp., § 22-17-8.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes.
— The compilers of the 1915 Code deleted the words "attachment or" between the words "any" and "replevin suits." For similar section under attachment from the same act,
see
42-9-12 NMSA 1978.
Cross references.
— For requiring additional security from defendant or return of property,
see
42-8-22 NMSA 1978.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-9 - Replevin against sheriff.

Whenever any writ of replevin is granted against the sheriff of any county in this state, the judge of the district court shall designate a person to serve process on the defendant.
History:
C.L. 1897, § 2685 (235), added by Laws 1907, ch. 107, § 1 (235); Code 1915, § 4347; C.S. 1929, § 105-1708; 1941 Comp., § 25-1509; 1953 Comp., § 22-17-9; Laws 1975, ch. 249, § 3.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-10 - [Manner of executing writ.]

The writ shall be executed by delivering the goods and chattels in the complaint mentioned, to the plaintiff, and by summoning the defendant to appear on the return day of the writ, to answer the action of the plaintiff.
History:
C.L. 1897, § 2685 (237), added by Laws 1907, ch. 107, § 1 (237); Code 1915, § 4348; C.S. 1929, § 105-1709; 1941 Comp., § 25-1510; 1953 Comp., § 22-17-10.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For proceedings in conversion when goods not found,
see
42-9-14 NMSA 1978.
For time for return of writ,
see
42-9-16 NMSA 1978.
For levy on cattle,
see
39-6-1 to 39-6-4 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
66 Am. Jur. 2d Replevin §§ 68, 69.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-12 - [Property not returned and accepted; collection of value.]

If such property be not returned and accepted within thirty days after the judgment, the sheriff shall collect the assessed value thereof from the plaintiff and his securities as on other executions.
History:
C.L. 1897, § 2685 (240), added by Laws 1907, ch. 107, § 1 (240); Code 1915, § 4351; C.S. 1929, § 105-1712; 1941 Comp., § 25-1513; 1953 Comp., § 22-17-13.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Tender or delivery by loser in replevin action of property to sheriff or other officer, 57 A.L.R. 808.
77 C.J.S. Replevin § 90 et seq.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-13 - [Officer damnified; suit on bond.]

Any officer damnified by the execution of a writ of replevin may maintain an action therefor on the bond by him taken.
History:
C.L. 1897, § 2685 (241), added by Laws 1907, ch. 107, § 1 (241); Code 1915, § 4352; C.S. 1929, § 105-1713; 1941 Comp., § 25-1514; 1953 Comp., § 22-17-14.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-14 - [Defendant may sue on bond in name of officer.]

The defendant may, for any violation of the bond, bring an action thereon in the name of the officer for his use.
History:
C.L. 1897, § 2685 (242), added by Laws 1907, ch. 107, § 1 (242); Code 1915, § 4353; C.S. 1929, § 105-1714; 1941 Comp., § 25-1515; 1953 Comp., § 22-17-15.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For right to sue in name of real party in interest,
see
Rule 1-017 A NMRA.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Depreciation of property between the date it was replevied and final judgment as element of recovery on bond, 24 A.L.R. 1189.
Damages for detention between judgment against principal and delivery or redelivery of property as covered by replevin bond or redelivery bond in replevin, 90 A.L.R. 972.
77 C.J.S. Replevin § 90 et seq.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-15 - [Liability of sheriff for failure to take sufficient bond from plaintiff.]

The sheriff for failing to take bond, or for taking insufficient bond from the plaintiff, shall be responsible on his official bond for all damages sustained thereby, recoverable by action in the name of the party injured.
History:
C.L. 1897, § 2685 (243), added by Laws 1907, ch. 107, § 1 (243); Code 1915, § 4354; C.S. 1929, § 105-1715; 1941 Comp., § 25-1516; 1953 Comp., § 22-17-16.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
66 Am. Jur. 2d Replevin § 66.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-16 - Form of affidavit.

Affidavits for writs of replevin shall be in substantially the following form:
"STATE OF NEW MEXICO
COUNTY OF ____________________________
(Name), Plaintiff
)
)
v.
)
CIVIL DOCKET NO. ________
(Name), Defendant
)
)
AFFIDAVIT IN REPLEVIN
I, (plaintiff or attorney), being duly sworn, state that (plaintiff) is lawfully entitled to the possession of (property); that the same was wrongfully taken or wrongfully detained by (defendant); that (plaintiff) has reason to believe that (defendant) may conceal, dispose of, or waste the property or the revenues therefrom, or remove the property from the jurisdiction during the pendency of the action; that the right of action originated within one year; and that the following facts, from which it clearly appears that the above allegations are justified, are true:
Sworn _________________________
PLAINTIFF
Approved:
_________________________________
DISTRICT COURT JUDGE."
History:
1953 Comp., § 22-17-17.1, enacted by Laws 1975, ch. 249, § 4.
ANNOTATIONS
Cross references.
— For suit on bond,
see
46-6-7 NMSA 1978.
For replevin bond for trespassing animals in irrigation district,
see
77-14-14 NMSA 1978.
Affidavit in replevin in substantial compliance with statute is sufficient,
and where the form prescribed does not state the value of the property, and the statute does not require the value to be stated, an affidavit is not defective because it fails to set forth the value.
Trujillo v. Tucker
, 1918-NMSC-044, 24 N.M. 339, 171 P. 788 (decided under former law).
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-17 - Form of bond.

Replevin bonds shall be in substantially the following form:
"STATE OF NEW MEXICO
COUNTY OF ____________________________
(Name), Plaintiff
)
)
v.
)
CIVIL DOCKET NO. ________
(Name), Defendant
)
)
REPLEVIN BOND
We bind ourselves, our heirs, executors and administrators to the state of New Mexico in the sum of $ ______ on condition that the plaintiff will diligently prosecute this action to final judgment without delay, will return all property and pay to the defendant all money found due to him in this action, including all damages, and will keep harmless the officer executing the writ of replevin, upon completion of which this obligation is void.
________________________________
PLAINTIFF (Principal)
________________________________
SURETY
________________________________
SURETY
Approved: ____________________, 19___
_________________________________
DISTRICT COURT JUDGE."
History:
1953 Comp., § 22-17-17.2, enacted by Laws 1975, ch. 249, § 5.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-18 - Approval of bond; issuance of writ.

The judge of the district court shall, upon the filing of the affidavit and bond in conformity with Sections 42-8-5 and 42-8-6 NMSA 1978, the bond to have sufficient surety approved by the judge, issue the writs of replevin applied for by the complainant directed to the sheriff of the county and commanding him to replevy the property described in the affidavit of the complainant.
History:
C.L. 1897, § 2685 (246), added by Laws 1907, ch. 107, § 1 (246); Code 1915, § 4356; C.S. 1929, § 105-1717; 1941 Comp., § 25-1518; 1953 Comp., § 22-17-18; Laws 1965, ch. 268, § 2; 1975, ch. 249, § 6.
ANNOTATIONS
Cross references.
— For alias and pluries writs,
see
42-9-14 NMSA 1978.
For amendment of writ,
see
42-9-14 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
66 Am. Jur. 2d Replevin § 67.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-19 - Motion to dissolve; damages.

A. Upon the defendant's motion before trial, the district court shall determine the truth of the facts stated in the plaintiff's affidavit at a hearing, to be held without delay. If the plaintiff fails to prove the truth of the facts stated, the writ shall be dissolved, the plaintiff shall be ordered to return the property to the defendant and an order shall be entered for the defendant against the plaintiff and his sureties for the attorney's fees incurred in the dissolution of the writ and for double damages for the use of the property from the time of its delivery to the plaintiff.
B. If the writ of replevin is dissolved, the action shall then proceed as if no writ had been issued.
History:
1953 Comp., § 22-17-18.1, enacted by Laws 1975, ch. 249, § 7.
ANNOTATIONS
Purpose of section.
— The legislature, in enacting this section, intended to compensate a defendant in replevin for defending an action that is groundless, whether or not the defendant's property has actually been seized by the sheriff.
Green Tree Acceptance, Inc. v. Layton
, 1989-NMSC-006, 108 N.M. 171, 769 P.2d 84.
Measure of damages recoverable by debtor
for creditor's wrongful replevin is double damages for the use (or reasonable rental value) of property wrongfully replevied, for period of time from its wrongful taking to its tendered return.
First Nat'l Bank v. Southwest Yacht & Marine Supply Corp.
, 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.
Effect of failure to accept return of property.
— By failing to accept plaintiff's tender to return the property, defendant limits the damages recoverable to those suffered during the period from the wrongful taking to the date of the tender.
First Nat'l Bank v. Southwest Yacht & Marine Supply Corp
., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.
Extent of recovery of attorney fees.
— Defendant may only recover reasonable attorney fees which it may have incurred in the dissolution of the wrongfully issued writ of replevin; no attorney fees are recoverable for otherwise defending the replevin action.
First Nat'l Bank v. Southwest Yacht & Marine Supply Corp.
, 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.
This section and Section 42-8-11 NMSA 1978 not mutually exclusive.
— This section and Section 42-8-11 NMSA 1978, providing for a return of property and the payment of damages upon failure of plaintiff to prosecute his case, are not mutually exclusive.
First Nat'l Bank v. Southwest Yacht & Marine Supply Corp.
, 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-20 - Docketing; proceedings in district court.

The district court clerk shall docket the action in replevin and the cause shall then proceed as in other civil actions.
History:
1953 Comp., § 22-17-19, enacted by Laws 1965, ch. 268, § 3.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-21 - [Defendant may keep property on giving forthcoming bond; time; parties; condition.]

The defendant, either in person or by his agent or attorney, at any time within five days after the service of a writ of replevin on him, and the replevin of the property thereunder, may require the return of the property replevied upon giving to the sheriff a bond with two or more sufficient sureties in double the value of the property as sworn to in the affidavit of replevin, conditioned for the delivery of the property to the plaintiff, if such delivery be adjudged, and for payment to him of such sum as may for any cause be recovered against the defendant in the suit.
History:
C.L. 1897, § 2685 (248), added by Laws 1907, ch. 107, § 1 (248); Code 1915, § 4358; C.S. 1929, § 105-1719; 1941 Comp., § 25-1520; 1953 Comp., § 22-17-20.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
66 Am. Jur. 2d Replevin §§ 72, 73.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 8 - Replevin › Section 42-8-22 - [Forthcoming bond; approval; return with writ to district court; additional security; sheriff's liability.]

The sheriff shall judge of the sufficiency of the sureties on the bond of the defendant, and shall return the same with the writ of replevin into the district court; and shall be responsible on his official bond on returning any property replevied; but any party interested in the result of any such cause may move the court on cause shown to require the defendant in such cases to give additional security, when that taken by the sheriff shall be deemed insufficient, or to return the property to the sheriff to be delivered over to the plaintiff, if the plaintiff has given a good and sufficient replevin bond, as required by law.
History:
C.L. 1897, § 2685 (249), added by Laws 1907, ch. 107, § 1 (249); Code 1915, § 4359; C.S. 1929, § 105-1720; 1941 Comp., § 25-1521; 1953 Comp., § 22-17-21.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For requiring additional security,
see
42-8-8 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Sufficiency of offer or tender to satisfy requirement of judgment or condition of bond in replevin, 57 A.L.R. 806.
77 C.J.S. Replevin § 90 et seq.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-2 - [Attachment authorized in actions ex delicto.]

Wherever an attachment may issue against the property of any person upon any debt or other action founded upon contract, attachment may also issue upon any action founded upon a tort or other action ex delictu [ex delicto]; this law shall apply to actions which have heretofore or may hereafter accrue.
History:
C.L. 1897, § 2685 (183), added by Laws 1907, ch. 107, § 1 (183); Code 1915, § 4300; C.S. 1929, § 105-1602; 1941 Comp., § 22-102; 1953 Comp., § 26-1-2.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For exemption of workmen's compensation claims,
see
52-1-52 NMSA 1978.
Section will not support an action in garnishment
wherein plaintiff seeks to garnish money owing to defendant whom he is suing in tort.
Sullivan v. Michelli
, 1930-NMSC-063, 35 N.M. 59, 289 P. 803.
Magistrate or district court proper tribunal.
— Under existing legislation, attachment in tort actions may be had in both district and justice (now magistrate) courts.
Butler Paper Co. v. Sydney
, 1943-NMSC-047, 47 N.M. 463, 144 P.2d 170.
Tract, improved with community funds, subject to sale under attachment.
U.S. Fid. & Guar. Co. v. Chavez
, 126 F. Supp. 227 (D.N.M. 1954).
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Jurisdiction on constructive service divorce or alimony suit to reach property within state as affected by attachment, 10 A.L.R.3d 212.
7 C.J.S. Attachment §§ 7, 17.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-3 - [Situs of debts and intangible interest in property.]

The situs of debts and obligations for the purpose of attachment shall be the domicile of the debtor or obliger [obligor] and the situs of intangible interests in property, real or personal, legal or equitable, shall be the place where such property is located.
History:
Laws 1939, ch. 159, § 5; 1941 Comp., § 22-103; 1953 Comp., § 26-1-3.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Law reviews.
— For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
6 Am. Jur. 2d Attachment and Garnishment §§ 25 to 29, 32, 46.
7 C.J.S. Attachment § 54.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-5 - [Affidavit; by whom made; contents.]

The affidavit shall be made by the plaintiff, or some person for him, and shall state that the defendant is justly indebted to the plaintiff, after allowing all just credits and offsets, in a sum (to be specified in the affidavit), and on what account, and shall also state that the affiant has good reason to believe, and does believe, the existence of one or more of the causes which, according to the provision of Section 42-9-1 NMSA 1978, will entitle the plaintiff to sue by attachment.
History:
C.L. 1897, § 2685 (185), added by Laws 1907, ch. 107, § 1 (185); Code 1915, § 4302; C.S. 1929, § 105-1604; 1941 Comp., § 22-105; 1953 Comp., § 26-1-5.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Affidavit insufficient as complaint.
— Affidavit for attachment was not sufficient as a declaration (now complaint).
Staab v. Hersch
, 1884-NMSC-018, 3 N.M. (Gild.) 209, 3 P. 248 (decided under former law).
Affidavit may be verified before notary public.
Robinson v. Hesser
, 1887-NMSC-023, 4 N.M. (Gild.) 282, 13 P. 204 (decided under former law).
Special denial method of raising issue at common law.
— Common-law declaration in attachment proceedings should be responded to by common-law plea in order to raise an issue, and if defendant desires to raise an issue on the affidavit for attachment, he should do so by special denial of some material facts contained in the affidavit.
Staab v. Hersch
, 1884-NMSC-018, 3 N.M. (Gild.) 209, 3 P. 248 (decided under former law).
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
6 Am. Jur. 2d Attachment and Garnishment §§ 254 to 275, 328, 332 to 334, 378.
7 C.J.S. Attachment §§ 72 to 113, 359.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-6 - [Form of affidavit.]

The form of the affidavit of attachment shall be as follows, to wit:
STATE OF NEW MEXICO)
County of _______________)
ss.
This day personally appeared before me, the undersigned clerk of the district court, A. B. (or C. D., agent for A. B., as the case may be), and being duly sworn, says that E. F. is justly indebted to the said A. B. in the sum of _____ dollars, after allowing all just offsets, and that the said E. F. is (setting forth one of the causes of attachment).
A. B. or
C. D., Agent for A. B.
Subscribed and sworn to before me this _____ day of _____, A. D. [20]_____.
__________________________
County Clerk.
History:
C.L. 1897, § 2685 (207), added by Laws 1907, ch. 107, § 1 (207); Code 1915, § 4317; C.S. 1929, § 105-1620; 1941 Comp., § 22-106; 1953 Comp., § 26-1-6.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes.
— The codifiers of the 1915 Code substituted, in the body of the affidavit, the words "clerk of the district court" for the words "clerk of the (district court, or probate court, as the case may be)." They also substituted, just below the line for the clerk's signature, the words "County Clerk" for the word "Clerk."
Affidavit, writ, complaint must describe plaintiff in same way.
— Plaintiffs must be described in substantially the same way in the affidavit, writ, and declaration (now complaint) in attachment. If different descriptions are given in the affidavit and in the writ, it will not be presumed that the plaintiffs named in each are the same.
Bennett v. Zabriski
, 1880-NMSC-003, 2 N.M. 7 (decided under former law).
Affidavit for attachment may be verified before notary public.
Robinson v. Hesser
, 1887-NMSC-023, 4 N.M. (Gild.) 282, 13 P. 204 (decided under former law).
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Surety on bond given to prevent, or secure release of attachment, right to attack attachment after recovery of judgment by plaintiff, on ground of defects in, or falsity of, affidavit, 89 A.L.R. 269.
Swearing to affidavit in attachment before unauthorized person as a defect curable by amendment, 91 A.L.R. 917.
7 C.J.S. Attachment §§ 75, 76, 106 to 113.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-7 - [Bond; parties; amount; condition.]

The bond shall be executed by the plaintiff or some responsible person as principal, and two or more sureties, residents of the state, each of which sureties shall be worth the penalty of the bond over and above all debts, or by some bond company authorized to do business in this state, in a sum at least double the amount sworn to in the affidavit, or in such lesser amount as the district court in its discretion shall by order direct, payable to the defendant and conditioned that the plaintiff will prosecute his action without delay, and with effect, and will refund all sums of money that may be adjudged to be refunded to the defendant and pay all damages that may accrue to any defendant or garnishee by reason of such attachment or any process or judgment thereon.
History:
C.L. 1897, § 2685 (186), added by Laws 1907, ch. 107, § 1 (186); Laws 1913, ch. 56, § 1; Code 1915, § 4303; C.S. 1929, § 105-1605; Laws 1939, ch. 159, § 2; 1941 Comp., § 22-107; 1953 Comp., § 26-1-7.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For no bond requirement attachment proceedings brought by New Mexico livestock board,
see
77-8-17 NMSA 1978.
Bond requirement not waived because of wage claim action.
— Sections 50-4-11 and 50-4-12 NMSA 1978 relating to wage claim actions by the labor commissioner (now secretary of workforce solutions department) do not waive the requirement for the furnishing of a bond in an attachment proceeding under Section 42-9-4 NMSA 1978 and this section.
Cal-M, Inc. v. McManus
, 1963-NMSC-184, 73 N.M. 91, 385 P.2d 954.
Reasonable attorney's fees recoverable in suit on bond.
— In suit on the bond, reasonable attorney's fees, paid in defending the attachment suit, are recoverable as a part of the damages.
Territory ex rel. Leyser v. Rindskopf Bros. & Co.
, 1889-NMSC-002, 5 N.M. 93, 20 P. 180 (decided under former law).
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
6 Am. Jur. 2d Attachment and Garnishment §§ 252, 264, 333, 334, 518 to 523.
Duress, recovery upon ground of duress of money paid upon excessive or unfounded claim to avoid attachment, 18 A.L.R. 1233.
Assignment of judgment as carrying collateral rights of assignor as to attachment bond, 63 A.L.R. 291.
Attachment as affected by excessive claim, 68 A.L.R. 853.
Process in action on note or bond, not resulting in sale of mortgaged property, as precluding foreclosure of real-estate mortgage, 37 A.L.R.2d 959.
7 C.J.S. Attachment §§ 116 to 155, 412.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-8 - [Form of bond.]

The form of said bond shall be as follows, to wit:
Know all men by these presents, that we (A. B., principal, or C. D., agent for A. B., principal, as the case may be) and N. N. and M. M., his securities, are held and firmly bound unto ...... (defendant), in the sum of ...... dollars, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors and administrators, firmly by these presents, sealed with our seals and dated this ...... day of ......, A. D. ......
The condition of the above obligation is such that, whereas the above named A. B. has this day sued out an attachment before J. J., clerk of the district court, against E. F. for the sum of ...... dollars, in the district court for the county of .......
Now, if the said A. B. shall prosecute his said action without delay, and with effect, and refund all sums of money that may be adjudged to be refunded to the defendant, and pay all damages that may accrue, to any defendant or garnishee by reason of said attachment, or any process of judgment thereon, then this obligation to be null and void, otherwise to remain in full force and effect.
A. B.
N. N.
M. M.
(L. S.)
(L. S.)
(L. S.)
History:
C.L. 1897, § 2685 (208), added by Laws 1907, ch. 107, § 1 (208); Code 1915, § 4318; C.S. 1929, § 105-1621; 1941 Comp., § 22-108; 1953 Comp., § 26-1-8.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
6 Am. Jur. 2d Attachment and Garnishment §§ 258 to 269, 333, 334.
7 C.J.S. Attachment §§ 118, 126, 252, 317.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-9 - [Sureties on bonds; qualifications; acknowledgments.]

The securities on attachment bonds shall be residents of this state, or a bond company authorized to do business in this state, and shall acknowledge the execution of such bond by them in the manner and before such officer as may be prescribed by law for the acknowledgment of conveyances of real estate.
History:
C.L. 1897, § 2685 (187), added by Laws 1907, ch. 107, § 1 (187); Code 1915, § 4304; C.S. 1929, § 105-1606; 1941 Comp., § 22-109; 1953 Comp., § 26-1-9.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For release of surety on bond,
see
46-6-6 NMSA 1978.
No right of action upon indemnifying bond by defendant.
— This section does not confer upon the defendant in an attachment suit the right of action upon an indemnifying bond given the sheriff, such bond not arising by virtue of the attachment laws.
De Witt v. United States Fid. & Guar. Co.
, 1915-NMSC-020, 20 N.M. 163, 148 P. 489.
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Bankruptcy of debtor within four months after attachment or execution as discharging surety on bond to release property, 36 A.L.R. 449, 107 A.L.R. 1138.
Obligation of surety on attachment bond as affected by attachment, defendant's adjudication in bankruptcy, 68 A.L.R. 1331.
7 C.J.S. Attachment §§ 121, 122, 124, 131.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-10 - [Approval of bond; papers filed before issuance of writ.]

The clerk shall judge of the sufficiency of the penalty and the security in the bond; if they be approved, he shall endorse his approval thereon, and the same, together with the affidavits and complaint or other lawful statement of the cause of action, shall be filed before an attachment shall be issued.
History:
C.L. 1897, § 2685 (188), added by Laws 1907, ch. 107, § 1 (188); Code 1915, § 4305; C.S. 1929, § 105-1607; 1941 Comp., § 22-110; 1953 Comp., § 26-1-10.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Filing bond and issuing writ prima facie proof of approval.
— The facts that the clerk filed an attachment bond and issued the writ are prima facie proof that he approved the bond, although he failed to endorse his approval upon it.
Baca v. Coury
, 1922-NMSC-003, 27 N.M. 611, 204 P. 57.
Affidavit and approved bond must be filed before attachment issues,
or the writ will be void.
Waldo v. Beckwith
, 1854-NMSC-002, 1 N.M. 97 (decided under former law).
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-11 - [Suit on bond.]

The bond given by the plaintiff or other person in a suit by attachment may be sued on by any party injured in the name of the state, and [he] shall proceed as in ordinary suits, and shall recover such damages as he may sustain.
History:
C.L. 1897, § 2685 (189), added by Laws 1907, ch. 107, § 1 (189); Code 1915, § 4306; C.S. 1929, § 105-1608; 1941 Comp., § 22-111; 1953 Comp., § 26-1-11.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For person interested suing on bond,
see
46-6-7 NMSA 1978.
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-12 - [Requiring additional security.]

Any person, plaintiff or defendant, in any attachment suits pending in any court in this state, may, at any time before judgment, after reasonable notice to the person by whom any bond has been given in any such suit, move the court for additional security on the part of any such principal in such bond, and if, on such motion, the court is satisfied that any surety on such bond has removed from the state, or that for any other reason such bond is not sufficient security for the amount thereof, it may direct a new and sufficient bond to be given within a reasonable time, to be fixed by the court, and in default thereof, may make such order disposing of the property, the possession of which is held by virtue of such bond as the failure to give such additional security may require, and such orders may be made in vacation, as well as in term time.
History:
C.L. 1897, § 2685 (221), added by Laws 1907, ch. 107, § 1 (221); Code 1915, § 4333; C.S. 1929, § 105-1636; 1941 Comp., § 22-112; 1953 Comp., § 26-1-12.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
De minimis non curat lex as applied to deficiency in attachment bond, 44 A.L.R. 184.
7 C.J.S. Attachment §§ 128, 248, 259.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-13 - [Contents of writ.]

Original writs of attachment shall be directed to the sheriff of the proper county, commanding him to attach the defendant, by all and singular, his lands and tenements, goods, moneys, effects, credits and all other property and interests in property of whatsoever nature and kind, in whosesoever hands the same may be found, with a clause of the nature and to the effect of an ordinary citation to answer the action of the plaintiff.
History:
C.L. 1897, § 2685 (191), added by Laws 1907, ch. 107, § 1 (191); Code 1915, § 4308; C.S. 1929, § 105-1610; Laws 1939, ch. 159, § 3; 1941 Comp., § 22-113; 1953 Comp., § 26-1-13.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
6 Am. Jur. 2d Attachment and Garnishment §§ 283 to 287, 337.
7 C.J.S. Attachment § 161.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-15 - [Issuance and return of writ; proceedings; judgment.]

Original writs of attachment shall be issued and returned in like manner as ordinary writs of summons; and when the defendant is cited to answer the action, like proceedings shall be had between him and the plaintiff as in ordinary actions on contracts, and a general judgment may be rendered for or against the defendant.
History:
C.L. 1897, § 2685 (192), added by Laws 1907, ch. 107, § 1 (192); Code 1915, § 4309; C.S. 1929, § 105-1611; 1941 Comp., § 22-115; 1953 Comp., § 26-1-15.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Default judgment proper where defendant fails to plead to complaint.
— In original action in attachment where the defendant traversed the affidavit for attachment, but failed to plead to the declaration, (now complaint), judgment by default was properly entered against him.
First Nat'l Bank v. George
, 1920-NMSC-025, 26 N.M. 46, 189 P. 240;
see also
Ripley v. Astec Mining Co.
, 1892-NMSC-009, 6 N.M. 415, 28 P. 773.
Judgment rendered during vacation void.
— In action of assumpsit by attachment (now ordinary action on contract), where garnishment process was served on the defendant company, judgment rendered during vacation was void.
Staab v. Atlantic & Pac. R.R.
, 1886-NMSC-015, 3 N.M. (Gild.) 606, 9 P. 381 (decided under former law).
Order rendered during vacation void.
— In an action of assumpsit by attachment (now ordinary action on contract), an order made during vacation, on a motion to quash the attachment proceeding argued and submitted during term, was void for being so made during vacation, and left the motion still pending and undetermined in the court below, and, on appeal from the order, the cause was stricken from the docket.
Colter v. Marriage
, 1886-NMSC-014, 3 N.M. (Gild.) 604, 9 P. 383 (decided under former law).
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
6 Am. Jur. 2d Attachment and Garnishment §§ 277, 280 to 282, 336.
2023 New Mexico Statutes › Chapter 42 - Actions and Proceedings Relating to Property › Article 9 - Attachment › Section 42-9-16 - [Time for return of writs of execution, attachment and replevin.]

All executions, writs of attachment and writs of replevin shall be returned within sixty days from the date of the delivery thereof to the sheriff or other officer or person whose duty it is, or who may be designated to serve the same.
History:
Laws 1897, ch. 73, § 176; C.L. 1897, § 2685 (176); Code 1915, § 4257; C.S. 1929, § 105-1004; 1941 Comp., § 22-116; 1953 Comp., § 26-1-16.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes.
— An almost identical provision relating to executions will be found in 39-4-9 NMSA 1978.
Law reviews.
— For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).
For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Inclusion or exclusion of first and last days in computing the time for performance of an act or event which must take place a certain number of days before a known future date, 98 A.L.R.2d 1331.
7 C.J.S. Attachment §§ 84, 102 to 105.