ANNOTATIONS The 2011 amendment, approved by Supreme Court Order No. 11-8300-050, effective for cases filed on or after February 6, 2012, explicitly provided that the rule apply to the issuance and service of process in special statutory proceedings; added Subparagraph (1) of Paragraph A; in Paragraphs I, J, and K, added “Process” at the beginning of the title of each paragraph; and in Paragraph L, added “of process” at the end of the title of the paragraph. The 2005 amendment, effective March 1, 2005, rewrote this rule. See the committee commentary for an analysis of the 2005 revision of this rule. The 1998 amendment, effective for cases filed in the district courts on and after October 1, 1998, added a new Paragraph L (now Paragraph J) providing for service in manner approved by court, redesignated former Paragraphs L and M as Subparagraphs M and N respectively and made numerous gender neutral and stylistic changes.

For service of process after ninety days after entry of final judgment, see Rule 1-089(E) NMRA. For execution of process of probate court by sheriff, see Section 4-41-13 NMSA 1978. For sheriff’s fees, see Section 4-41-16 NMSA 1978. For service on counties, see Section 4-46-2 NMSA 1978. For service in proceeding to remove local officer, see Section 10-4-5 NMSA 1978. For service of process on nonresident public contractors, see Sections 13-4-21 to 13-4-23 NMSA 1978. For legal newspapers, see Section 14-11-2 NMSA 1978. For time and manner for publication of notice of pending suit, see Section 14-11-10 NMSA 1978. For service of process in suits against adverse claimants to lands in townsites, see Section 19-4-24 NMSA 1978. For resisting or obstructing service being a petty misdemeanor, see Section 30-22-1 NMSA 1978. For free process on proper showing of indigency, see Section 34-6-27 NMSA 1978. For issuance of process by probate judges, see Section 34-7-13 NMSA 1978. For issuance and service of process in garnishment, see Sections 35-12-2, 35-12-19 NMSA 1978. For service when action is revived against nonresident, see Section 37-2-9 NMSA 1978. For service by superintendent of insurance, see Section 38-1-8 NMSA 1978. For service on domestic corporation, see Sections 38-1-5, 53-11-14 NMSA 1978. For service on foreign corporation, see Sections 38-1-6, 53-17-9 to 53-17-11 NMSA 1978. For when personal service may be made outside state, and its effect, see Section 38-1-16 NMSA 1978. For service on nonresident motorists, see Sections 38-1-16, 66-5-103, 66-5-104 NMSA 1978. For suits against partnerships, see Section 38-4-5 NMSA 1978. For service in kinship guardianship proceedings, see Section 40-10B-6 NMSA 1978. For personal service in special alternative condemnation proceedings, see Section 42-2-7 NMSA 1978. For service by publication in suit for specific performance of real estate contract, see Sections 42-7-2, 42-7-3 NMSA 1978. For service of writ of habeas corpus, see Sections 44-1-32 to 44-1-34 NMSA 1978. For service and notice in probate proceedings, see Sections 45-1-401 to 45-1-404 NMSA 1978. For service on trustees of land grants generally, see Section 49-1-17 NMSA 1978. For service on trustees of Chaperito land grants, see Section 49-3-2 NMSA 1978. For service on trustees of land grants in Dona Ana County, see Section 49-5-2 NMSA 1978. For free process for labor commissioner in wage claim actions, see Section 50-4-12 NMSA 1978. For service on unincorporated association, see Section 53-10-6 NMSA 1978. For chairman of corporation commission (now public regulation commission) being agent for service on producer, distributor, manufacturer or seller of motion pictures, see Section 57-5-18 NMSA 1978. Compiler’s notes. – This rule is deemed to have superseded Sections 105-302, 105-303, 105-304, 105-306, 105-307, 105-308, 105-309, 105-310, 105-312, 15-313, 105-314, 105-315, 32-195, 32-3702 (compiled as Section 4-46-2 NMSA 1978) and 29-117 (compiled as Section 49-1-17 NMSA 1978) C.S. 1929. Paragraph K of this rule is deemed to have superseded 105-313, C.S. 1929, which was substantially the same. I. GENERAL CONSIDERATION. District court could not enforce probate court order where the probate court was without authority to act. – Where petitioner was appointed the personal representative of his deceased grandfather’s estate, and where the probate court, at Petitioner’s request, issued an order directing the New Mexico Taxation and Revenue Department (Department) to release $70,000 of unclaimed property that belonged to decedent, and where the probate court transferred the case to the district court when the Department refused to release the property, the district court’s order directing the Department to comply with the probate court and release the unclaimed property to petitioner was invalid, because the administrative claim filing provisions of the Unclaimed Property Act, 7-8A-1 to 7-8A-31 NMSA 1978, are exclusive and mandatory, and therefore the district court did not have jurisdiction to determine that the property was estate property or to enforce the probate court’s order as the probate court had no authority to order the Department to release the unclaimed property to petitioner. In re Estate of McElveny, 2017-NMSC-024, rev’g 2015-NMCA-080, 355 P.3d 75. Service of process not required on custodian of property in probate proceeding. – Probate proceedings are in rem special proceedings. A district court is not required to obtain personal jurisdiction over a custodian of property by service of process pursuant to Rule 1-004 NMRA. All that is required is that a district court have in rem jurisdiction over a decedent’s estate property, and the notice requirement pursuant to 45-1-401(A) NMSA 1978 only entitles a custodian of property to notice of the hearing and an opportunity to be heard. In re Estate of McElveny, 2015-NMCA-080, cert. granted, 2015-NMCERT-007. Where personal representative of decedent’s estate opened an informal probate for his deceased grandfather pursuant to the Uniform Probate Code, and the probate court properly issued an order directing the personal representative to collect the estate’s assets so they could be administered through probate, the personal representative was not required to serve process upon the Taxation and Revenue Department (Department), as the custodian of decedent’s property, because the estate was not suing the Department, nor was it attempting to obtain personal jurisdiction over the Department for the purpose of stating a claim against the Department. The notice requirement pursuant to 45-1-401(A) NMSA 1978 was satisfied when the Department was provided with notice of the probate proceeding and a full and fair opportunity to be heard in the district court. In re Estate of McElveny, 2015-NMCA-080, cert. granted, 2015-NMCERT-007. Service of process is procedural and Supreme Court rule on service of process controls. Abarca v. Henry L. Hanson, Inc., 1987-NMCA-068, 106 N.M. 25, 738 P.2d 519. Section 37-1-13 NMSA 1978 has no further usefulness because Rule 3 (see now Rule 1-003 NMRA) and this rule cover subject and are exclusive. Prieto v. Home Educ. Livelihood Program, 1980-NMCA-114, 94 N.M. 738, 616 P.2d 1123. Court may dismiss case for plaintiff’s failure to prosecute with due diligence. – The statute of limitations is tolled by the timely filing of the complaint but the trial court, in the exercise of its inherent power and in its discretion, independent of statute, may dismiss a case for failure to prosecute when it is satisfied that plaintiff has not applied due diligence in the prosecution of his suit. Prieto v. Home Educ. Livelihood Program, 1980-NMCA-114, 94 N.M. 738, 616 P.2d 1123. The test enunciated in Prieto v. Home Education Livelihood Program, 1980-NMCA-114, 94 N.M. 738, 616 P.2d 1123 provides for a district court to exercise its discretion in determining whether a delay in service of process demonstrates a lack of due diligence on the part of a plaintiff based on a standard of objective reasonableness, and whether the delay warrants dismissal of the complaint. Romero v. Bachicha, 2001-NMCA-048, 130 N.M. 610, 28 P.3d 1151. The test for a district court in exercising its discretion in determining whether a delay in service of process demonstrates a lack of due diligence on the part of a plaintiff is based on a standard of objective reasonableness; a showing of intentional delay is not required. Graubard v. Balcor Co., 2000-NMCA-032, 128 N.M. 790, 999 P.2d 434. Including situation where original complaint named John Doe defendants. – The filing of an original complaint naming John Doe defendants does not toll the running of the statute of limitation against the defendants added in an amended complaint where there is a lack of reasonable diligence in proceeding against the John Doe defendants. DeVargas v. State ex rel. New Mexico Dep’t of Cors., 1981-NMCA-109, 97 N.M. 447, 640 P.2d 1327. Notice of suggestion of death. – If the court has not acquired personal jurisdiction over the persons to be served with a Rule 25(a)(1) (now Rule 1-025A(1) NMRA) suggestion of death, then this rule is the proper mechanism to effectuate proper notice, because the latter rule is jurisdictionally rooted. Jones v. Montgomery Ward & Co., 1985-NMCA-094, 104 N.M. 636, 725 P.2d 836. Where the plaintiff died before the case went to trial, his attorney was not the proper party, either under this rule or under Rule 5 (now Rule 1-005) , to receive notice of suggestion of death so as to trigger the 90-day period for substitution of parties provided under Rule 25 (now Rule 1-025 NMRA). Jones v. Montgomery Ward & Co., 1985-NMCA-094, 104 N.M. 636, 725 P.2d 836. II. FORM OF SUMMONS. Writ of replevin accomplishes same function as summons. – Where it was contended that no summons having been issued and served, the court was without jurisdiction of the defendant and the judgment was void, but a writ of replevin was issued by the clerk and served by the sheriff, the supreme court held that the writ of replevin in an action of replevin accomplishes the same function in process as does a summons in an ordinary civil action and affirmed the judgment. Citizens Bank v. Robinson Bros. Wrecking, 1966-NMSC-114, 76 N.M. 408, 415 P.2d 538. Proper form is presumed. – Under former statute it was held that where phraseology of summons did not appear from the record, it would be presumed that the clerk issued the summons in statutory form. Bourgeious v. Santa Fe Trail Stages, Inc., 1939-NMSC-050, 43 N.M. 453, 95 P.2d 204. General appearance waives failure to endorse attorney’s name. – Failure to endorse the name of plaintiff’s counsel was waived by a general appearance. Boulder, Colo., Sanitorium v. Vanston, 1908-NMSC-018, 14 N.M. 436, 94 P. 945. III. SERVICE OF PROCESS. A. IN GENERAL. District court has no jurisdiction to issue binding judgment against a party not served in accordance with this rule who does not somehow waive the defects in service. Trujillo v. Goodwin, 2005-NMCA-095, 138 N.M. 48, 116 P.3d 839. Faxing petition does not amount to personally delivering the process, such is as required by this rule. Trujillo v. Goodwin, 2005-NMCA-095, 138 N.M. 48, 116 P.3d 839. Two functions are served by service by personal delivery of the papers within the state: (1) it shows that defendant has an appropriate relationship to the state and is within the power of the court generally; and (2) it gives the defendant notice of the proceeding against him. Clark v. LeBlanc, 1979-NMSC-034, 92 N.M. 672, 593 P.2d 1075. Due process requires that summons be served in a manner reasonably calculated to bring the proceedings to the defendant’s attention. Moya v. Catholic Archdiocese, 1978-NMSC-078, 92 N.M. 278, 587 P.2d 425, rev’d on other grounds, 1988-NMSC-048, 107 N.M. 245, 755 P.2d 583. Facts and circumstances of each case determine proper service. – Whether a summons was served in a manner reasonably calculated to bring the proceeding to the defendant’s attention depends upon the facts and circumstances of each case. Moya v. Catholic Archdiocese, 1988-NMSC-048, 107 N.M. 245, 755 P.2d 583. Service reasonably calculated to give notice. – Fundamental due process requires service reasonably calculated to give parties notice, and the lack of such notice cannot be cured by an entry of a general appearance after entry of default judgment. Abarca v. Henry L. Hanson, Inc., 1987-NMCA-068, 106 N.M. 25, 738 P.2d 519. Process may be served on Indian allotments. – Federal statutory provisions do not preempt New Mexico authority to serve process on Indian allotments where the process served is in a case which involves neither the allotted land nor the status of the allottee as allottee. Great Am. Ins. Co. v. Brown, 1974-NMCA-055, 86 N.M. 336, 524 P.2d 199. A 19-year-old minor could legally serve citations, was fully capable of properly evaluating the facts which came to her personal knowledge and was legally competent to establish the charges complained of. City of Alamogordo v. Harris, 1959-NMSC-014, 65 N.M. 238, 335 P.2d 565. Civil process servers need not be law enforcement officers. – Subdivision (e)(1) (see now Paragraph D) provides that civil service need not be made by a deputized law enforcement officer whose functions include the prevention and detection of crime and the enforcement of the laws of the State of New Mexico. Thus civil process servers who do not function as police officers need not be certified by the law enforcement academy. 1976 Op. Att’y Gen. No. 76-7. Requirements of Paragraph F(1) satisfied. – Summons and complaint were served in a manner reasonably calculated to bring the proceeding to defendant’s attention, where rolled-up copies of the summons and complaint were attached to the handle of defendant’s front porch door by a rubber band, and defendant took them inside the house and read them. Moya v. Catholic Archdiocese, 1988-NMSC-048, 107 N.M. 245, 755 P.2d 583. Requirements of Paragraph F(1) not met. – A justice of the peace (now magistrate) is charged with the knowledge that posting a summons on a bulletin board in the county courthouse is not proper service. Galindo v. Western States Collection Co., 1970-NMCA-118, 82 N.M. 149, 477 P.2d 325. Defendant is “found” when served only if he is there voluntarily and not by reason of plaintiff’s fraud, artifice or trick for the purpose of obtaining service. Empire Fire & Marine Ins. Co. v. Lee, 1974-NMCA-116, 86 N.M. 739, 527 P.2d 502. Where he comes in answer to sheriff’s telephone call. – Where the sheriff of one county telephoned defendant at his home in another and informed him that the sheriff had papers to personally serve upon him and he subsequently came to the sheriff’s office and was served, defendant knew he was to be served with papers and was voluntarily in the county. Empire Fire & Marine Ins. Co. v. Lee, 1974-NMCA-116, 86 N.M. 739, 527 P.2d 502. Moving to interim place changes “usual place of abode”. – Where the appellant had moved prior to service, had a permanent place to move to, but had an interim place to stay awaiting the readiness of the permanent abode, then her address prior to service was not her usual place of abode. Household Finance Corp. v. McDevitt, 1973-NMSC-002, 84 N.M. 465, 505 P.2d 60. Service at former place of abode is invalid. – “The usual place of abode” means the customary place of abode at the very moment the writ is left posted; hence, where the writ is left posted at a former place of abode, but from which defendant had, in good faith, removed and taken up his place of abode elsewhere, service so had is ineffective and invalid. Household Finance Corp. v. McDevitt, 1973-NMSC-002, 84 N.M. 465, 505 P.2d 60. Copy must be left for each defendant. – Under the rule generally applied, where substituted service is made on more than one defendant residing at the same place of abode, a copy must be left for each defendant. Hale v. Brewster, 1970-NMSC-047, 81 N.M. 342, 467 P.2d 8. Subdivision (e)(1) (see now Paragraph F(2)) requires delivery of a copy of the complaint and summons to accomplish substituted service for a defendant. It must follow that, if there is more than one defendant, a complaint and a summons must be delivered for each defendant being served. Hale v. Brewster, 1970-NMSC-047, 81 N.M. 342, 467 P.2d 8 (default judgment set aside). Where railroad has no offices in state. – Under Laws 1880, ch. 3, § 6 (repealed by Laws 1905, ch. 79, § 134) , railroad company which had no offices located in New Mexico, but merely owned land in the state, was not subject to process by attachment in a personal action. Caledonian Coal Co. v. Baker, 196 U.S. 432, 25 S. Ct. 375, 49 L. Ed. 540 (1905). Cross-complaints in action to foreclose mechanic’s lien held served with reasonable diligence. Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807. When service commences period for conducting adjudicatory hearing in delinquency proceedings. – The time limit set forth in Rule 10-226 NMRA for commencing an adjudicatory hearing in a delinquency proceeding involving a child not held in custody begins to run when the summons and a copy of the petition are personally served on the child, and not when a copy is given to the child’s attorney. State v. Jody C., 1991-NMCA-097, 113 N.M. 80, 823 P.2d 322. Time for service of process included in period for commencement of action. – Under Rule 1-015(C) NMRA, the period for commencing an action includes the reasonable time allowed for service of process. To the extent that Fernandez v. Char-Li-Jon, Inc., 1994-NMCA-130, 119 N.M. 25, 888 P.2d 471 or other similar cases appear to hold otherwise, these opinions are not to be followed. Romero v. Bachicha, 2001-NMCA-048, 130 N.M. 610, 28 P.3d 1151. B. SUBSTITUTED OR CONSTRUCTIVE SERVICE. Strict construction required. – In authorizing substituted service of process as distinguished from personal service, Subdivision (g) (now Paragraph K) of this rule requires strict construction. Houchen v. Hubbell, 1969-NMSC-162, 80 N.M. 764, 461 P.2d 413; Murray Hotel Co. v. Golding, 1950-NMSC-014, 54 N.M. 149, 216 P.2d 364. Statutes authorizing substitute service are to be strictly construed. Moya v. Catholic Archdiocese, 1978-NMSC-078, 92 N.M. 278, 587 P.2d 425, rev’d on other grounds, 1988-NMSC-048, 107 N.M. 245, 755 P.2d 583. Under former rule, substituted service by posting at sister’s residence satisfied due process requirements since at the time of the posting the intended recipient was difficult to locate and there was evidence that he sometimes lived with his sister. Campbell v. Bartlett, 975 F.2d 1569 (10th Cir. 1992). Out-of-state constructive service may be by personal service or publication. – Constructive service without the state may be had either by personal service in such other state or by publication and mailing. In re Hickok, 1956-NMSC-035, 61 N.M. 204, 297 P.2d 866. Due process prohibits constructive service where feasible alternative exists. – Due process prohibits the use of constructive service where it is feasible to give notice to the defendant in some manner more likely to bring the action to his attention. Clark v. LeBlanc, 1979-NMSC-034, 92 N.M. 672, 593 P.2d 1075. Service by publication is not due process of law in strictly personal actions, but applies to all actions in which personal service is not essential, and where suits may be instituted under recognized principles of law. State ex rel. Truitt v. District Court of Ninth Judicial Dist., 1939-NMSC-061, 44 N.M. 16, 96 P.2d 710, 126 A.L.R. 651 (1939). Money judgment cannot be entered against motorist served by publication. – The trial court lacked jurisdiction to enter a default judgment against motorist who had been served solely by order of publication. Chapman v. Farmers Ins. Group, 1976-NMCA-128, 90 N.M. 18, 558 P.2d 1157, cert. denied, 90 N.M. 254, 561 P.2d 1347 (1977). Service by publication, in action for money judgment, could not have the effect of giving the court jurisdiction over nonresident corporation in an in personam action. Pope v. Lydick Roofing Co., 1970-NMSC-090, 81 N.M. 661, 472 P.2d 375. Adoption proceedings. – Substitute service or process by publication is inadequate in adoption proceedings. Normand ex rel. Normand v. Ray, 1988-NMSC-054, 107 N.M. 346, 758 P.2d 296. For rule prior to 1959, see 1957-58 Op. Att’y Gen. No. 58-213; State ex rel. Pavlo v. Scoggin, 1955-NMSC-084, 60 N.M. 111, 287 P.2d 998. Personal jurisdiction may be obtained by publication in some cases. – Service by publication gives the district court jurisdiction in an in personam action if it is established that the defendant left the state and concealed himself in order to avoid service. Clark v. LeBlanc, 1979-NMSC-034, 92 N.M. 672, 593 P.2d 1075. Constructive service is sufficient for an in personam judgment where awards of alimony are made against a husband who conceals himself within the state to avoid service of process. Clark v. LeBlanc, 1979-NMSC-034, 92 N.M. 672, 593 P.2d 1075. An action for annulment is in personam, and when there is lack of personal service on the defendant within the state, the court does not have jurisdiction to hear the case. State v. Scoggin, 1955-NMSC-084, 60 N.M. 111, 287 P.2d 998. But see now Section 38-1-16A(5) NMSA 1978, as to alimony, child support and property settlements. In action to reform a lease or sublease by decreasing rental payments and allowing credit for excess payments, constructive service was not sufficient. State ex rel. Truitt v. District Court of Ninth Judicial Dist., 1939-NMSC-061, 44 N.M. 16, 96 P.2d 710. Under former rule, where action is in personam, either to cancel a deed or to reform it, neither personal service outside the state nor service through publication within New Mexico could give the court jurisdiction over the person of nonresident defendants. Sullivan v. Albuquerque Nat’l Trust & Sav. Bank, 1947-NMSC-054, 51 N.M. 456, 188 P.2d 169. Suit to quiet title is not in personam. – Suit by husband upon wife’s death for an adjudication that property which stood in her name at her death but which had been purchased with his veteran’s benefits was in fact community property and not her separate estate was not an action in personam but a suit to quiet title to realty; consequently, nonresident legatees served personally outside the state were not entitled to have service quashed. Sullivan v. Albuquerque Nat’l Trust & Sav. Bank, 1947-NMSC-054, 51 N.M. 456, 188 P.2d 169. Under a statute providing for service by publication upon an unknown person in a suit to quiet title, where the service was properly completed, a judgment obtained in the quiet title action is binding upon such unknown person. Bentz v. Peterson, 1988-NMCA-071, 107 N.M. 597, 762 P.2d 259. Action to set aside fraudulent deed and foreclose judgment lien is quasi in rem. – Action by judgment creditor to set aside a deed as fraudulent and to foreclose judgment lien was quasi in rem, and courts where land was located, New Mexico, obtained jurisdiction over nonresident defendant by constructive service outside state by publication. State ex rel. Hill v. District Court, 1968-NMSC-058, 79 N.M. 33, 439 P.2d 551. Where a real owner may be brought into court by name, his property may not be taken by constructive service against unknown claimants. Mutz v. Le Sage, 1956-NMSC-054, 61 N.M. 219, 297 P.2d 876. Person whose name can be readily ascertained must be so joined. – Subsection (g) (see now Paragraph K) does not permit the joinder as a defendant, under the designation “unknown claimants of interest” in a suit to quiet title, of one in possession, or whose claim of interest could have been ascertained by ordinary inquiry and diligence, thus permitting joinder as a defendant by name. Houchen v. Hubbell, 1969-NMSC-162, 80 N.M. 764, 461 P.2d 413; Murray Hotel Co. v. Golding, 1950-NMSC-014, 54 N.M. 149, 216 P.2d 364. If residence is ascertainable, service by publication is fraud. – Where one filing affidavit of nonresidence to procure service by publication states defendant’s residence is unknown in order to avoid mailing copy of complaint and summons, when in fact location of residence is readily ascertainable, there is fraud upon the court, and equity will vacate a decree of divorce thus obtained. Owens v. Owens, 1927-NMSC-053, 32 N.M. 445, 259 P. 822. Knowledge of fraud by defendant must be directly alleged. – In an independent action to vacate a judgment in a suit to quiet title, it must be made to appear by direct allegation that the defendant-purchaser had knowledge of the fraud charged, that is, the alleged knowledge by the plaintiff in the quiet title suit of the identity of those served by publication therein as “unknown heirs” and his failure to name them. Archuleta v. Landers, 1960-NMSC-117, 67 N.M. 422, 356 P.2d 443. Showing for publication may be made in verified complaint. – A duly verified complaint was a “sworn pleading” in which plaintiff could make the requisite showing for the publication of a notice of the pendency of a cause. Singleton v. Sanabrea, 1931-NMSC-034, 35 N.M. 491, 2 P.2d 119. Constructive service proper where names and addresses of defendants are not reasonably ascertainable. – In a collateral attack on a 1948 quiet title judgment in San Juan County, in which service of process was accomplished by publication in a weekly newspaper, and where the plaintiffs in the 1948 complaint alleged that after diligent search and inquiry, they had been unable to learn or determine the names, places of residence, addresses and whereabouts of any unknown heirs of any deceased defendants or if any defendants were still living and residing in New Mexico, they could not be located because they had secreted themselves so that personal service of process could not be effected, and where the return of service completed by the sheriff of San Juan county indicated that after diligent search and inquiry, any predecessors-in-interest could not be located and personally served with process, the district court correctly found that the suit in this case constituted an improper collateral attack on the 1948 judgment quieting title in defendants’ predecessors-in-interest, because constructive notice given in the underlying case was sufficiently reasonably calculated under the circumstances as they existed in 1948; constructive service of process by publication satisfies due process if the names and addresses of the defendants to be served are not reasonably ascertainable. T.H. McElvain Oil & Gas Ltd. P’ship v. Benson-Montin-Greer Drilling Corp., 2017-NMSC-004, rev’g 2015-NMCA-004, 340 P.3d 1277. Sufficient designation of unknown heirs. – It is sufficient to use the following form to designate unknown heirs: “Unknown heirs of the following named deceased persons” followed by the names of any and all deceased persons whose unknown heirs are desired to be served, and it is unnecessary to repeat the words “unknown heirs of” before each individual name. Thomas v. Myers, 1948-NMSC-025, 52 N.M. 164, 193 P.2d 624. Stating parties are in fact unknown suffices. – Where sworn pleading or affidavit in quiet title suit declares that those who are sued as unknown defendants are in fact unknown, the declaration to that effect suffices, and the court’s decree is not invalid because the provisions as to constructive service were not followed in that respect. Campbell v. Doherty, 1949-NMSC-030, 53 N.M. 280, 206 P.2d 1145. Stating residence is unknown. – Affidavit stating that residence of defendant was unknown was sufficient to support jurisdiction on service by publication, without showing of affiant’s efforts to ascertain such residence. Singleton v. Sanabrea, 1931-NMSC-034, 35 N.M. 491, 2 P.2d 119. Based on information and belief. – Affidavit stating the fact of nonresidence on information and belief was sufficient to support jurisdiction on service by publication. Bowers v. Brazell, 1926-NMSC-003, 31 N.M. 316, 244 P. 893. Particular acts of diligence need not be shown. – Showing of diligence necessary to permit service by publication in quiet title suit does not require that particular acts constituting exhibitions of diligence be shown; an allegation of diligence as an ultimate fact is sufficient. Campbell v. Doherty, 1949-NMSC-030, 53 N.M. 280, 206 P.2d 1145. If acts are alleged and proved, court may approve diligence used. – In absence of fraud in serving process, district court judgment approving the diligence used, although unnecessarily set out in the application, will not be disturbed by supreme court on collateral attack if the allegations of diligence are not wholly lacking in substance. Campbell v. Doherty, 1949-NMSC-030, 53 N.M. 280, 206 P.2d 1145. Supreme court would not say that the trial court committed error in holding that judgment was not void, on collateral attack, where plaintiff pleaded particular facts which he contended constituted due diligence, since the district court was, under such circumstances, authorized to determine whether due diligence had been shown and some evidence of diligence did exist. Campbell v. Doherty, 1949-NMSC-030, 53 N.M. 280, 206 P.2d 1145. Diligence shown. – Where attorney employed two process servers within a month of filing the complaint, made several attempts at service on the defendants, searched voter records, and filed a probate proceeding simultaneously with the suit in order to appoint a personal representative for the purpose of prosecuting the action against the defendants, the plaintiff did not demonstrate a lack of due diligence. Martinez v. Segovia, 2003-NMCA-023, 133 N.M. 240, 62 P.3d 331. Copy of complaint and summons need not be mailed in attachment. – In attachment proceedings in which defendant is a nonresident, it is not necessary that a copy of the complaint and summons be mailed to him. Glasgow v. Peyton, 1916-NMSC-052, 22 N.M. 97, 159 P. 670. See Section 42-9-18 NMSA 1978. Under former rule, personal service out-of-state equivalent to publication. Denison v. Tocker, 1951-NMSC-022, 55 N.M. 184, 229 P.2d 285 (quoting Section 49-2-18 NMSA 1978 and Subdivision (i) (now Paragraph I)). Default judgment entered before defendant is required to answer is improper. – Under former statutes, where absent defendant outside of state was personally served, he had the time required for publication plus 20 days in which to answer, and default judgment entered before that time was irregular and voidable, on motion seasonably made; a motion made more than a year later was too late. Dallam Cnty. Bank v. Burnside, 1926-NMSC-035, 31 N.M. 537, 249 P. 109 (now Paragraph J of this rule as to time for defendant to appear). C. RETURN. Applicability of former provisions. – Section 1903, C.L. 1884, requiring all original process in any suits to be returned on the first day of the term next after its issuance, applied only to process in ordinary proceedings and not to the extraordinary remedies of habeas corpus, quo warranto, mandamus and the like, in which speed is the very essence of the remedy, where process is properly returnable at a day during the same term at which it issued. Territory ex rel. Wade v. Ashenfelter, 1887-NMSC-013, 4 N.M. (Gild.) 93, 12 P. 879, appeal dismissed, 154 U.S. 493, 14 S. Ct. 1141, 38 L. Ed. 1079 (1893). Sufficiency of affidavit. – An affidavit of service by a private person in the form of a certificate, to which a jurat was attached reciting that the same was subscribed and sworn to before a notary public, was not defective because it did not recite in the body that the affiant was declaring under oath. Mitchell v. National Sur. Co., 206 F. 807 (D.N.M. 1913) . Failure to make return is not grounds for recalling execution. – Where default judgment was entered upon nonappearance, after personal service had been made upon defendant’s statutory resident agent, the execution could not be recalled and judgment vacated for failure of process server to return the original summons with proof of service, as required by former statute. That requirement was primarily for the benefit of the court. Bourgeious v. Santa Fe Trail Stages, Inc., 1939-NMSC-050, 43 N.M. 453, 95 P.2d 204. D. ALIAS PROCESS. “Alias process” includes summons. – Section 105-313, C.S. 1929, identical to Subdivision (i) (see now Paragraph A), referred to “alias process” which obviously would include summons. State ex rel. Dresden v. District Court of Second Judicial Dist., 1941-NMSC-013, 45 N.M. 119, 112 P.2d 506 (decided before 1979 amendment). In determining the meaning of “process” as used in statutes in relation to service upon nonresident motorists, existing statutes at the time may be considered. State ex rel. Dresden v. District Court of Second Judicial Dist., 1941-NMSC-013, 45 N.M. 119, 112 P.2d 506. E. ON CORPORATIONS, PARTNERSHIPS AND ASSOCIATIONS. This rule and 38-4-5 NMSA 1978 are not inconsistent, they are complementary. Section 38-4-5 NMSA 1978 appoints a partner an agent with authority to receive service of process which is plainly contemplated by Subdivision (o) (see now Paragraph G) of this rule, which speaks of an agent authorized “by law” or “by statute” to receive service of process. United Nuclear Corp. v. General Atomic Co., 1976-NMSC-063, 90 N.M. 97, 560 P.2d 161. Suits may be brought by or against a partnership as such. A partnership is a distinct legal entity to the extent it may sue or be sued in the partnership name. Loucks v. Albuquerque Nat’l Bank, 1966-NMSC-176, 76 N.M. 735, 418 P.2d 191. Service must be on officer or agent. – Subdivision (o) (see now Paragraph G) provides that service may be had upon either domestic or foreign corporations by delivering a copy of the summons and complaint to an officer, the managing or general agent, or to any other agent authorized to receive service. Crawford v. Refiners Coop. Ass’n, 1962-NMSC-131, 71 N.M. 1, 375 P.2d 212. Of such rank and character that communication to defendant is reasonably certain. – Where the form of service is reasonably calculated to give the foreign defendant actual notice of the pending suit, the provision for such service is valid, and every object of the rule is satisfied where the agent is of such rank and character so that communication to the defendant is reasonably certain. United Nuclear Corp. v. General Atomic Co., 1976-NMSC-063, 90 N.M. 97, 560 P.2d 161. Such as director of dissolved corporation. – Service upon a director of a dissolved corporation in Arizona is sufficient under the New Mexico nonresident motorist statute, and it is not necessary that service be made in the state of incorporation. Crawford v. Refiners Coop. Ass’n, 1962-NMSC-131, 71 N.M. 1, 375 P.2d 212. General partner. – The federal rule, which is identical insofar as pertinent to this rule, has been construed to mean that service of process on a general partner is effective service on the partnership. United Nuclear Corp. v. General Atomic Co., 1976-NMSC-063, 90 N.M. 97, 560 P.2d 161. Not member. – The trial court did not err in vacating a default judgment under Rule 60(b)(4) (see now Rule 1-060 NMRA) where the motion for default judgment filed by plaintiff was not consistent with the return of service and the affidavit of the deputy sheriff that service of process was made on a member, not an officer or as otherwise provided in Subdivision (o) (now Paragraph G) since the court could have found the judgment void although it did not make this ruling explicit. Gengler v. Phelps, 1976-NMCA-114, 89 N.M. 793, 558 P.2d 62. Secretary of state’s failure to serve. – Paragraph F(2) (see now Paragraph G) requires that service be made to an authorized agent or to the principal office or place of business of the corporation in question; where, through the secretary of state’s inadvertence, this was not done, a party ought not profit from the secretary of state’s failure. Abarca v. Henry L. Hanson, Inc., 1987-NMCA-068, 106 N.M. 25, 738 P.2d 519. F. ON STATE OFFICER, OFFICIAL, OR EMPLOYEE. Personal service required. – Service by first class mail on members of the Educational Retirement Board of a teacher’s petition for certiorari with respect to an administrative determination of the board did not satisfy the requirement for personal service. Wirtz v. State Educ. Retirement Bd., 1996-NMCA-085, 122 N.M. 292, 923 P.2d 1177. Attorney general opinions. – But now civil process servers need not be law enforcement officers. — Subdivision (e)(1) (see now Paragraph D) provides that civil service need not be made by a deputized law enforcement officer whose functions include the prevention and detection of crime and the enforcement of the laws of the State of New Mexico. Thus civil process servers who do not function as police officers need not be certified by the law enforcement academy. 1976 Op. Att’y Gen. No. 76-7. For rule prior to 1959, see 1957-58 Op. Att’y Gen. No. 58-213; State v. Scoggin, 1955-NMSC-084, 60 N.M. 111, 287 P.2d 998. Law reviews. – For article, “Annulment of Marriages in New Mexico,” see 1 Nat. Resources J. 146 (1961). 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). For annual survey of New Mexico law of civil procedure, 19 N.M.L. Rev. 627 (1990). Am. Jur. 2d, A.L.R. and C.J.S. references. – 6 Am. Jur. 2d Associations and Clubs § 58; 19 Am. Jur. 2d Corporations § 2192; 36 Am. Jur. 2d Foreign Corporations §§ 516 to 582; 56 Am. Jur. 2d Municipal Corporations, Counties and Other Political Subdivisions § 854; 62B Am. Jur. 2d Process § 1 et seq.; 73 Am. Jur. 2d Sundays and Holidays §§ 108, 126; 80 Am. Jur. 2d Wills § 933. Sufficiency of jurat or certificate of affidavit for publication, 1 A.L.R. 1573, 116 A.L.R. 587. Defects or informalities as to appearance or return day in summons or notice of commencement of action, 6 A.L.R. 841, 97 A.L.R. 746. Power to amend nunc pro tunc return of service of summons in divorce suit, 7 A.L.R. 1148. Validity of statutory provision for attorney’s fees in favor of nonresidents served by publication, 11 A.L.R. 896, 90 A.L.R. 530. Nature or subject matter of the action or proceeding in which the process issues as affecting immunity of nonresident suitor or witness, 19 A.L.R. 828. Failure of affidavit for publication of service to state the facts required by statute as subjecting the judgment to collateral attack, 25 A.L.R. 1258. Service of process upon actual agent of foreign corporation in action based on transactions outside of state, 30 A.L.R. 255, 96 A.L.R. 366. Formality in authentication of process, 30 A.L.R. 700. Constitutionality of statute providing for substituted or constructive service upon nonresident in action for tort in connection with operation of automobile, 35 A.L.R. 951, 57 A.L.R. 1239, 99 A.L.R. 130. Jurisdiction of suit to remove cloud or quiet title upon constructive service of process against nonresident, 51 A.L.R. 754. Attack by defendant upon attachment or garnishment as an appearance subjecting him personally to jurisdiction, 55 A.L.R. 1121, 129 A.L.R. 1240. Nonresident requested or required to remain in state pending investigation of accident, 59 A.L.R. 51. Waiver of immunity from service of summons by failure to attack service, or to follow up an attack, before judgment entered, 68 A.L.R. 1469. May suit for injunction against nonresident rest upon constructive service or service out of state, 69 A.L.R. 1038. Domicil or status of national corporation for purpose of service of process in action in state court, 69 A.L.R. 1351, 88 A.L.R. 873. May proceedings to have incompetent person declared insane and to appoint conservator or committee of his person or estate rest on constructive service by publication, 77 A.L.R. 1229, 175 A.L.R. 1324. Constitutionality, construction and applicability of statutes as to service of process on unincorporated association, 79 A.L.R. 305. Joint stock companies as “corporations” for service of process, 79 A.L.R. 316. Application for removal of cause before issuance of process, 82 A.L.R. 515. Construction of provisions of statute as to constructive or substituted service on nonresident motorist regarding mailing copy of complaint, 82 A.L.R. 772, 96 A.L.R. 594, 125 A.L.R. 457, 138 A.L.R. 1464, 155 A.L.R. 333. Public policy as ground for exemption of legislators from service of civil process, 85 A.L.R. 1340, 94 A.L.R. 1475. Attorney’s liability to one other than client for damage resulting from issuance or service of process, 87 A.L.R. 178. May presence within state of bonds or other evidence of indebtedness or title sustain jurisdiction to determine rights or obligations in them in proceeding quasi in rem and without personal jurisdiction over parties affected, 87 A.L.R. 485. Right to release judgment entered on unauthorized appearance for defendant by attorney as affected by service of process on defendant, 88 A.L.R. 69. Constitutionality, construction and effect of statute providing for service of process upon statutory agent in actions against foreign corporations, as regards communication to corporation of fact of service, 89 A.L.R. 658. Power of state to provide for service, other than personal, of process upon nonresident individual doing business within the state so as to subject him to judgment in personam, 91 A.L.R. 1327. Service of process by publication against nonresident in suit for specific performance of contract relating to real property within state, 93 A.L.R. 621, 173 A.L.R. 985. Immunity of nonresident from service of process while in state for purpose of compromising or settling controversy, 93 A.L.R. 872. Immunity of legislators from service of civil process, 94 A.L.R. 1470. Necessity of summons to persons affected by proceedings to purge voter’s registration lists, 96 A.L.R. 1041. Defects or informalities as to appearance or return day in summons or notice of commencement of action, 97 A.L.R. 746. Liability of officer or his bond for neglect of deputy or assistant to make return of process, 102 A.L.R. 184, 116 A.L.R. 1064, 71 A.L.R.2d 1140. Return of service of process in action in personam showing personal or constructive service in state as subject to attack by showing that defendant was a nonresident and was not served in state, 107 A.L.R. 1342. Voluntary submission to service of process as collusion in divorce suit, 109 A.L.R. 840. Service of process on officer or agent whose presence in state has been induced by fraud or misrepresentation in action against foreign corporation doing business in state, 113 A.L.R. 157. Notification of corporation by improper person on whom process is served in action against foreign corporation doing business in state, 113 A.L.R. 170. Admission of service in action against foreign corporation doing business in state, 113 A.L.R. 170. Construction, application and effect of clause “outstanding” in state in statute relating to designation of agent for service of process upon foreign corporation, 119 A.L.R. 871. Amendment of process by changing description or characterization of party from corporation to individual, partnership or other association, 121 A.L.R. 1325. Amendment of process or pleading by changing or correcting mistake in name of party, 124 A.L.R. 86. Substituted service, service by publication or service out of state in action in personam against resident or domestic corporation as contrary to due process of law, 132 A.L.R. 1361. Summons as amendable to cure error or omission in naming or describing court or judge or place of court’s convening, 154 A.L.R. 1019. Who is subject to constructive or substituted service of process under statutes providing for such service on nonresident motorist, 155 A.L.R. 333, 53 A.L.R.2d 1164. Suits and remedies against alien enemies, 156 A.L.R. 1448, 157 A.L.R. 1449. Service of process on consul in matters relating to decedent’s estate in which his nonresident national has an interest, 157 A.L.R. 124. Effect of time of execution of waiver of service of process, 159 A.L.R. 111. Suit to determine ownership, or protect rights, in respect of instruments not physically within state but relating to real estate therein as one in rem or quasi in rem, jurisdiction of which may rest upon constructive service, 161 A.L.R. 1073. Constructive service of process upon nonresident in action to set aside judgment, 163 A.L.R. 504. Injunction pendente lite in action for divorce or separation, constructive and substituted service of process, 164 A.L.R. 354. Jurisdiction to render judgment for arrearage of alimony without personal service upon the defendant of whom court has jurisdiction in the original divorce suit, 168 A.L.R. 232. Leaving process at residence as compliance with requirement that party be served “personally” or “in person,” “personally served,” etc., 172 A.L.R. 521. Constructive service of process against nonresident in suit for specific performance of contract relating to real property within state, 173 A.L.R. 985. Necessity, in service by leaving process at place of abode, etc., of leaving a copy of summons for each party sought to be served, 8 A.L.R.2d 343. Construction and application of provision of Federal Motor Carrier Act requiring designation of agent for service of process, 8 A.L.R.2d 814. What amounts to doing business in a state within statute providing for service of process in action against nonresident natural person or persons doing business in state, 10 A.L.R.2d 200. Jurisdiction of suit involving trust as affected by service, 15 A.L.R.2d 610. Constitutionality and construction of statute authorizing constructive or substitute service of process on foreign representative of deceased nonresident driver of motor vehicle in action arising out of accident occurring in state, 18 A.L.R.2d 544. Immunity of nonresident defendant in criminal case from service of process, 20 A.L.R.2d 163. Setting aside default judgment for failure of statutory agent on whom process was served to notify defendant, 20 A.L.R.2d 1179. Sufficiency of affidavit as to due diligence in attempting to learn whereabouts of party to litigation, for the purpose of obtaining service by publication, 21 A.L.R.2d 929. Validity of legislation relating to publication of legal notices, 26 A.L.R.2d 655. Who is an “agent authorized by appointment” to receive service of process within purview of Federal Rules of Civil Procedure and similar state rules and statutes, 26 A.L.R.2d 1086. Tolling of statute of limitations where process is not served before expiration of limitation period, as affected by statutes defining commencement of action, or expressly relating to interruption of running of limitations, 27 A.L.R.2d 236. What constitutes action affecting personal property within district of suit, so as to authorize service by publication on nonresident defendants under 28 U.S.C. § 1655, 30 A.L.R.2d 208. Appealability of order overruling or sustaining motion to quash or set aside service of process, 30 A.L.R.2d 287. Omission of signature of issuing officer on civil process or summons as affecting jurisdiction of the person, 37 A.L.R.2d 928. Service of process on person in military service by serving person at civilian abode or residence, or leaving copy there, 46 A.L.R.2d 1239. Difference between date of affidavit for service by publication and date of filing or of order for publication as affecting validity of service, 46 A.L.R.2d 1364. Sufficiency of affidavit made by attorney or other person on behalf of plaintiff for purpose of service by publication, 47 A.L.R.2d 423. Service of process upon dissolved domestic corporation in absence of express statutory direction, 75 A.L.R.2d 1399. Who may serve writ, summons or notice of garnishment, 75 A.L.R.2d 1437. State’s power to subject nonresident individual other than a motorist to jurisdiction of its courts in action for tort committed within state, 78 A.L.R.2d 397. Failure to make return as affecting validity of service or court’s jurisdiction, 82 A.L.R.2d 668. Immunity of nonresident from service of process in suit related to suit in which he is a witness, party, etc., 84 A.L.R.2d 421. Manner of service of process upon foreign corporation which has withdrawn from state, 86 A.L.R.2d 1000. Place or manner of delivering or depositing papers under statutes permitting service of process by leaving copy at usual place of abode or residence, 87 A.L.R.2d 1163. Sufficiency of designation of court or place of appearance in original civil process, 93 A.L.R.2d 376. Statutory service on nonresident motorists: return receipts, 95 A.L.R.2d 1033. Attack on personal service as having been obtained by fraud or trickery, 98 A.L.R.2d 551. Mistake or error in middle initial or middle name of party as vitiating or invalidating civil process, summons or the like, 6 A.L.R.3d 1179. Attorney representing foreign corporation in litigation as its agent for service of process in unconnected actions or proceedings, 9 A.L.R.3d 738. Jurisdiction on constructive or substituted service in suit for divorce or alimony to reach property within state, 10 A.L.R.3d 212. Civil liability of one making false or fraudulent return of process, 31 A.L.R.3d 1393. Construction of phrase “usual place of abode,” or similar terms referring to abode, residence or domicil, as used in statutes relating to service of process, 32 A.L.R.3d 112. Validity of service of summons or complaint on Sunday or holiday, 63 A.L.R.3d 423. In personam jurisdiction over nonresident director of forum corporation under long-arm statutes, 100 A.L.R.3d 1108. Validity of substituted service of process upon liability insurer of unavailable tortfeasor, 17 A.L.R.4th 918. Necessity and permissibility of raising claim for abuse of process by reply or counterclaim in same proceeding in which abuse occurred – state cases, 82 A.L.R.4th 1115. 7 C.J.S. Associations § 49; 18 C.J.S. Corporations §§ 721 to 735; 20 C.J.S. Counties § 263; 68 C.J.S. Partnership §§ 193, 194; 72 C.J.S. Process § 1 et seq.; 83 C.J.S. Sunday §§ 42 to 44; 95 C.J.S. Wills § 369.