N.M. R. Civ. P. Dist. Ct. 1-003
For commencement of action under statutes of limitation, see Section 37-1-13 NMSA 1978. For commencement of action by complaint in magistrate court, see Rule 2-201 NMRA. Compiler’s notes. – This rule is deemed to have superseded 105-301, C.S. 1929, which was substantially the same. Section 37-1-13 NMSA 1978 has no further usefulness, because this rule and Rule 4 (see now Rule 1-004 NMRA) cover subject and they are, therefore, exclusive. Prieto v. Home Educ. Livelihood Program, 1980-NMCA-114, 94 N.M. 738, 616 P.2d 1123. To file a civil action, a complaint must be filed with a court. Zarges v. Zarges, 1968-NMSC-151, 79 N.M. 494, 445 P.2d 97. “Civil action” used interchangeably with “civil case”. – Under this rule, the words “civil action” are broad and used interchangeably with the words “civil case”. Baldonado v. Navajo Freight Lines, 1977-NMCA-008, 90 N.M. 284, 562 P.2d 1138, rev’d on other grounds, 1977-NMSC-025, 90 N.M. 264, 562 P.2d 497. Filing of complaint ministerial act. – The filing of a civil complaint is a mere ministerial act that can be performed on Sunday. Such a filing ordinarily requires nothing beyond docketing the complaint and receiving the filing fee. 1961-62 Op. Att’y Gen. No. 61-56. Lawsuit commences when original plaintiffs file complaint. – The lawsuit involved in this case was commenced when the original plaintiffs filed their complaint and not when the original defendants filed their cross-claim. Hughes v. Joe G. Maloof & Co., 1973-NMCA-002,84 N.M. 516, 505 P.2d 859. Affidavit in an action of replevin may be treated as complaint, where it contains all the essential allegations of a complaint. Burnham-Hanna-Munger Dry Goods Co. v. Hill, 1912-NMSC-041,17 N.M. 347, 128 P. 62 (decided under former law). 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 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. Action pending until its final termination. – An action is to be regarded as pending from the time of its commencement until its final termination. Baldonado v. Navajo Freight Lines, 1977-NMCA-008, 90 N.M. 284, 562 P.2d 1138, rev’d on other grounds, 1977-NMSC-025, 90 N.M. 264, 562 P.2d 497. Law reviews. – For article, “Attachment in New Mexico – Part I,” see 1 Nat. Resources J. 303 (1961). For survey, “Article VII of the New Probate Code: In Pursuit of Uniform Trust Administration,” see 6 N.M.L. Rev. 213 (1976). For article, “The Death of Implied Causes of Action: The Supreme Court’s Recent Bevins Jurisprudence and the Effect on State Constitutional Jurisprudence: Correctional Services Corp. v. Malesko”, see 33 N.M.L. Rev. 401 (2003). Am. Jur. 2d, A.L.R. and C.J.S. references. – 1 Am. Jur. 2d Abatement, Survival, and Revival §12; 1 Am. Jur. 2d Actions §57 et seq.; 20 Am. Jur. 2d Courts §68; 61B Am. Jur. 2d Pleading §899. 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. Failure to make return as affecting validity of service or court’s jurisdiction, 82 A.L.R.2d 668. 1A C.J.S. Actions §§ 240, 241; 71 C.J.S. Pleading §§ 407 to 411; 72 C.J.S. Process § 3.
Rule 1-003 – Commencement of action, N.M. R. Civ. P. Dist. Ct. 1-003
N.M. R. Civ. P. Dist. Ct. 1-003.1
Committee commentary. – This rule is necessary to implement the use of civil information sheets as may be required for administrative purposes by the courts. This rule is similar to LR-CIV 3.1 of the Local Civil Rules of the United States District Court for the District of New Mexico.
[Amended by Supreme Court Order No. 14-8300-011, effective for all cases filed on or after December 31, 2014.]
ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-011, effective December 31, 2014, eliminated the requirement that a domestic relations cover sheet be filed in domestic relations cases; in the title, changed “cover and information sheets” to “information sheet”; deleted former Paragraph A which required that a domestic relations cover sheet be filed with the petition in a domestic relations case or with a motion to reopen a closed domestic relations case; in Paragraph B, changed “cover and information sheets” to “information sheet”; and in Paragraph C, in the first sentence, after “submitted without”, deleted “a cover sheet or” and added “an” and after “is filed with”, deleted “a cover sheet or” and added “an”, and in the second sentence, after “file or complete”, deleted “a cover sheet, or fails to submit or complete”.
For requirement that clerk accept for filing any paper even though it is not presented in proper form, see Rule 1-005(E) NMRA.
Rule 1-003.1 – Commencement of action; domestic relations information sheet, N.M. R. Civ. P. Dist. Ct. 1-003.1
An information sheet identifying persons entitled to notice and access to court records in a proceeding under Chapter 45, Article 5, Parts 3 or 4 NMSA 1978 shall be submitted by the petitioner upon the filing of a petition to appoint a guardian or conservator. The information sheet shall be substantially in the form approved by the Supreme Court.
N.M. R. Civ. P. Dist. Ct. 1-003.2
Committee commentary. – The information sheet required under this rule, Form 4-992 NMRA, is for administrative use only and is not made part of the record. The purpose of the information sheet is to assist court staff with identifying persons entitled to notice and access to court records under Rule 1-079.1(B)(2) and (C)(2) NMRA prior to the appointment of a guardian or conservator. See also NMSA 1978, §§ 45-5-303(K), 45-5-407(N) (providing that a person entitled to notice may access court records of the proceeding and resulting guardianship or conservatorship).
[Approved by Supreme Court Order No. 18-8300-005, effective for all cases filed, or pending but not adjudicated, on or after July 1, 2018.]
Rule 1-003.2 – Commencement of action; guardianship and conservatorship information sheet, N.M. R. Civ. P. Dist. Ct. 1-003.2
A certification of pre-filing notice, substantially in the form approved by the Supreme Court as Form 4-227 NMRA, shall be submitted with any complaint initiating a foreclosure action. Notwithstanding the provisions of Rule 1-005(F) NMRA, the clerk shall not accept for filing any foreclosure complaint that is not submitted with the certification form required under this rule.
N.M. R. Civ. P. Dist. Ct. 1-003.3
Committee commentary. – The information sheet required under this rule, Form 4-992 NMRA, is for administrative use only and is not made part of the record. The purpose of the information sheet is to assist court staff with identifying persons entitled to notice and access to court records under Rule 1-079.1(B)(2) and (C)(2) NMRA prior to the appointment of a guardian or conservator. See also NMSA 1978, §§ 45-5-303(K), 45-5-407(N) (providing that a person entitled to notice may access court records of the proceeding and resulting guardianship or conservatorship).
[Approved by Supreme Court Order No. 18-8300-005, effective for all cases filed, or pending but not adjudicated, on or after July 1, 2018.]
Rule 1-003.3 – Commencement of foreclosure action; certification of pre-filing notice required, N.M. R. Civ. P. Dist. Ct. 1-003.3
Personal service of process shall be made upon an individual by delivering a copy of a summons and complaint or other process:
N.M. R. Civ. P. Dist. Ct. 1-004
New Mexico Rule 1-004 has its origins in an act of the first Legislature of the State of New Mexico. 1912 N.M. Laws Ch. 26. When the New Mexico Supreme Court revamped the rules of civil procedure in 1942, 46 N.M. xix-lxxxiv (1942), largely using the 1938 Federal Rules as a model, the provisions of New Mexico Rule 4 continued to reflect some aspects of the service of process provisions of the former New Mexico provisions. Since then piecemeal amendments have occurred but there has been no previous attempt to restructure Rule 1-004 NMRA in light of evolving principles of due process and modern means of communication. The 2004 amendment to Rule 1-004 seeks to accomplish this goal.
Scope of Rule; Rule 1-004(A)(1)
Generally, statutory provisions are inapplicable if those provisions purport to set procedural requirements that contradict the Rules of Civil Procedure. Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976). Rule 1-001(A) creates an exception to Ammerman, extending deference to the procedural requirements set by the legislature in special proceedings that would not exist but for creation by the legislature. The root of the Rule 1-001(A) exception for special statutory proceedings is the provision in the New Mexico Constitution giving the district courts “such jurisdiction of special cases and proceedings as may be conferred by law.” N.M. Const., art. VI, § 13. The Rule 1-001(A) exception for special statutory proceedings is a prudential exception generally applied to statutory provisions that affect procedural rules even though the statutory provisions do not deal with jurisdictional matters. The Supreme Court, though, has ultimate authority over all procedural rules and thus can supersede by rule a non-jurisdictional statutory procedure in special statutory and summary proceedings. Rule 1-004(A)(1) is an exercise of that authority.
Rule 1-004 was amended in 2005 to bring New Mexico’s service of process procedure in line with evolving principles of due process. Questions have arisen whether the 2005 amendments to Rule 1-004 apply in special statutory proceedings where the statute provides lesser notice requirements than Rule 1-004. See, e.g., NMSA 1978, § 45-1-401 (provision of the Probate Code permitting notice by publication without court order and only requiring two weekly notices); and NMSA 1978, § 42A-1-14 (Eminent Domain Code provision providing for service by mail and by publication in manners inconsistent with Rule 1-004) .
The committee is of the view that, since Rule 1-004 requirements derive from constitutional due process requirements, new subparagraph (A)(1) clarifies that the requirements of Rule 1-004 must be satisfied to validly serve a person or give them notice of the pendency of special statutory proceedings as well as civil actions.
Summons; issuance; Rule 1-004(A)(2)
“Plaintiff” includes “Petitioner” and “Defendant” includes “Respondent”. See Rule 1-001(B)(1) and (2). The “Complaint” referred to in Rule 1-004(A) includes “Petition”. See Rule 1-001(B)(3).
Rule 1-004(A) previously provided that the clerk shall “forthwith” issue a summons upon filing of the complaint. The word is omitted from the 2004 Amendment because it was redundant; the rule already provides that the clerk “shall” issue a summons “[u]pon the filing of the complaint”.
Rule 1-004(A) previously provided that separate or additional summons may be issued “against any defendants”. Because it may be necessary to serve a summons on persons not formally denominated as a defendant, for example, upon a third-party defendant under Rule 1-014 NMRA, the rule has been modified to eliminate the implication that additional summonses may issue only against defendants.
The committee considered but did not provide that a person other than the plaintiff or petitioner could request issuance of a summons.
Summons; execution; form; Rule 1-004(B)
Rule 1-011 NMRA requires that all “paper” shall contain the telephone number of the attorney or the pro-se litigant. Except for the provision requiring that the summons include the telephone number as well as the name and address of the plaintiff’s attorney or the pro se plaintiff, only technical changes have been made in this section.
A form summons approved by the New Mexico Supreme Court may be found at 4-206 NMRA.
Service of Process; return; Rule 1-004(C)
“Process” is defined in Rule 1-001(B)(3) NMRA.
Sometimes a summons is not served in conjunction with the pleading instituting an action. For example, writs, warrants and mandates are not accompanied by a summons. See Rule 1-001(B)(3)(c) and (d) NMRA. Rule 1-004(C)(1) acknowledges that service of process sometimes does not include the service of a summons.
Rule 1-004(C)(2) is new. Unlike Federal Rule 4(m), which contains a specific time limit within which service of the summons and complaint ordinarily must be made, Rule 1-004(C)(2) provides only that service shall be made “with reasonable diligence”. This reflects the standard established in New Mexico case law. E.g., Romero v. Bachicha, 2001 NMCA-048 Par. 23-25, 130 N.M. 610, 616, 28 P.3d 1151, 1157.
Process; by whom served; Rule 1-004(D)
Rule 1-004(D) formerly provided that process could be served by a sheriff of the county where the defendant could be found, or by any person over the age of eighteen and not a party to the action. Because the latter category necessarily includes the sheriff of a county, the reference to service by the sheriff has been omitted.
Rule 1-004(D)(2) carries over, unchanged, former Rule 1-004(D)(2).
Rule 1-004(D)(3) is new. It provides a means for determining who shall serve process when the process is a writ other than those mentioned in Rule 1-004(D)(2).
Process; how served; generally; Rule 1-004(E)
Rule 1-004(E)(1) makes explicit in the rule the general test for constitutionally-adequate service of process established in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) (“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections”.).
Rule 1-004(E)(2) accepts the premise that matters of procedure are for the judiciary to determine but that legislation affecting procedure is valid unless and until contradicted by a rule of procedure promulgated by the Supreme Court. Rule 1-091 NMRA; Section 38-1-2 NMSA 1978. The section thus provides that service of process shall be made in accordance with Rule 1-004 NMRA, or in accordance with applicable statutes but shall not be accomplished by a means authorized by a statute that conflicts with Rule 1-004.
Rule 1-004(E)(3) provides a much-simplified method of service by mail. It is no longer necessary that the defendant open the mailed packet containing the summons and complaint and then voluntarily choose to accept service by returning a signed Receipt of Service of Summons and Complaint as formerly was required. Instead, service is accomplished when the summons and complaint are mailed to the named defendant in a manner that calls for the recipient to sign a receipt upon receiving the envelope containing the summons and complaint and the defendant-recipient or a person authorized by appointment or by law to accept service of process on behalf of the defendant signs the receipt upon receiving the mailed envelope or package.
Service by mail need not be at the home address or usual place of abode of the defendant. Service is complete when the receipt is signed.
This section also provides the same mechanism for service of the summons and complaint when a “commercial courier service” is utilized instead of the mails. The phrase, though not entirely self-explanatory, has been used in this context by other states without apparent problems. See, e.g., Kansas Rules of Civil Procedure, KSA 60-303(c)(1); Utah Rules of Civil Procedure 4(d)(2)(A) and (B). The Advisory Committee Note to Utah Rule 4 provides that “[t]he term ‘commercial courier service’ refers to businesses that provide for the delivery of documents. Examples of ‘commercial courier service’ include Federal Express and United Parcel Service”. The committee endorses the definition provided in the Utah Advisory Committee Note.
In this context, “signs” and “signed” is equivalent to “signature” which “means an original signature, a copy of an original signature, a computer generated signature or any other signature otherwise authorized by law”. Rule 1-011 NMRA.
Process; personal service upon an individual; Rule 1-004(F)
In General. The 2004 Amendment makes substantial changes in Rule 1-004(F). The “post and mail” method found in the former rule has been eliminated. A provision for service at the place of work of the defendant has been added. The provision for mail service has been simplified and the rule now authorizes the use of commercial courier services as well as mail for service of process. A hierarchy of methods of service has been established. In some cases, a listed method of service cannot be used until other methods of service are attempted unsuccessfully.
Rule 1-004(F)(1)(a). This subparagraph remains the same as in the former Rule.
Rule 1-004(F)(1)(b). This subparagraph authorizes service by mail or commercial courier service as provided in Rule 1-004(E)(3).
Rule 1-004(F)(2). The means of service provided in this section may only be used if there first was an attempt to serve process “by either of the methods of service provided by Subparagraph (1) of this paragraph”. This means that the person serving process need only attempt one of the two methods-personal service or mail/commercial courier service before using the alternative provided in this subparagraph.
This provision allows service to a person over the age of 15 who resides at the usual place of abode of the defendant. This is the same procedure as that formerly provided in Rule 1-004(F)(1) before the 2004 amendment. The former rule, however, required only delivery of the summons and complaint to such a person for service to be valid. The 2004 amendment provides that service is not accomplished until, in addition, the person serving the summons and complaint mails a copy of the summons and complaint to the defendant at the defendant’s last known mailing address. This provision allows service to a person over the age of 15 who resides at the usual place of abode of the defendant. This is the same procedure as that formerly provided in Rule 1-004(F)(1) before the 2004 amendment. The former rule, however, required only delivery of the summons and complaint to such a person for service to be valid. The 2004 amendment provides that service is not accomplished until, in addition, the person serving the summons and complaint mails a copy of the summons and complaint to the defendant at the defendant’s last known mailing address. This mailing address will often, but not always, be the usual place of abode of the defendant. The cost of mailing is minimal and increases the likelihood that the defendant will get actual, timely notice of the institution of the action.
Rule 1-004(F)(1) formerly provided that if no qualified person was at the usual place of abode to accept service of process, service could be made by posting process at the abode and then mailing a copy of the process to the last known mailing address. This alternative method of service has been omitted in the 2004 amendment.
Rule 1-004(F)(3) is new. It may be used only when service of process has been attempted, unsuccessfully, in accordance with Rule 1-004(F)(1) and Rule 1-004(F)(2). Rule 1-004(F)(3) provides that service may be made by delivering a copy of the summons and complaint to the person apparently in charge of the actual place of business of the defendant and mailing a copy of the summons and complaint to the defendant both at the defendant’s last known mailing address and also the defendant’s actual place of business.
Colorado, R.C.P. 4(e)(2), Oregon, R.C.P. 7(d)(2)(c) and New York, N.Y. CPLR Sec. 308(2), also provide for work place service of process. The Fair Debt and Collection Practices Act, 15 U.S.C. Sec. 1692 ff, contains a provision allowing service of process at the workplace of the defendant by “any person while serving or attempting to serve legal process in connection with judicial enforcement of any debt”. 15 U.S.C. Sec. 1692(a)(6)(D). Process; Service on corporation or other business entity; Rule 1-004(G)
In addition to providing for service of process on corporations, Rule 1-004(G)(1) now includes limited liability companies as well as any “equivalent business entity” to a corporation or limited liability company. Courts should construe that phrase to assure that Rule 1-004 provides appropriate guidance about proper service of process upon legislatively-created variations on the traditional corporation.
The substance of the former provisions concerning service of process on partnerships and unincorporated associations have been carried over unchanged in Rule 1-004(G)(1)(b) and (c) of the 2004 amendment. Process; Service upon state and political subdivisions; Rule 1-004(H)
Subparagraphs (a), (b), (c), (d) and (e) or Rule 1-004(H)(1) are substantively the same as former Rule 1-004(F) (3) and (4). They are derived from and do not vary materially from Section 38-1-7 NMSA 1978.
Subparagraphs (f), (g) and (i) are substantively the same as former Rule 1-004(F)(4), (5) and (6).
Subparagraph (h), dealing with service of process on a school district or school board is new. Former Rule 1-004 provided no guidance on the proper manner of service to such entities.
Rule 1-004(H)(2) allows service of process to the persons designated in Rule 1-004(H)(1) by means of mail or commercial courier service as provided in Rule 1-004(E)(3).
Process; Service upon minor, incapacitated person or conservator; Rule 1-004(I)
Subparagraph 1; Service on minors. The provision for service on a guardian or conservator is carried over from former Rule 1-004(F)(7) except that such service now may be in any manner provided in Paragraph F, G, or L as appropriate, rather than, as formerly, only “by delivering a copy — to the conservator or guardian”.
The provision for service upon person or persons having legal authority over a minor who does not have a guardian or conservator is new as is the provision requiring resort to the court to formulate a method of service where the minor has no guardian, conservator or person with legal authority over the minor.
Subparagraph 2; Service on incompetent persons. Rule 1-004(F)(7) formerly used the phrase “incapacitated person” to describe the party for whom a special means of service of process was appropriate. Rule 1-017(C) uses the phrase “incompetent persons” and this subparagraph adopts the language of Rule 1-017 NMRA for consistency. See Rule 10-104(L) NMRA (defining an “incompetent” person).
The provision for service on a guardian or conservator is carried over from former Rule 1-004(F)(7) except that such service now may be in any manner provided in Paragraph F, G or L as appropriate, rather than, as formerly, only “by delivering a copy . . . to the conservator or guardian”.
The provision requiring resort to the court to formulate a method of service where the incompetent person has no guardian or conservator is new. Former Rule 1-004(F)(8) provided that if no conservator or guardian had been appointed for an incapacitated person, service upon the incapacitated person would suffice. This provided inadequate assurance that the incapacitated person would have a meaningful opportunity to defend the action. To remedy this, this subparagraph requires the court to fashion a constitutionally-adequate means of service upon the incapacitated person not represented by a guardian or conservator.
Subparagraph 3; Service on fiduciaries. This provision is carried over from former Rule 1-004(F)(9). Fiduciaries may be served in the same manner as individuals and business entities who are defendants.
Service in manner approved by court; Rule 1-004(J)
This provision is carried over, unchanged, from former Rule 1-004(L). The goal of service of process is to achieve actual notice by means that are reasonable under the circumstances. Rule 1-004(E)(1). The specific methods of service authorized in Rule 1-004 provide standard methods by which this can be accomplished, but there are myriad specific circumstances in which ad-hoc determination of the most appropriate means for serving process is called for. This rule provides broad authority for the court to fashion a constitutionally-adequate method of service under any circumstances.
Where service can be accomplished pursuant to Rule 1-004(F)(G)(H) or (I), there will seldom be need for resort to Rule 1-004(K). Where the court orders service by publication, the court should consider, pursuant to this Paragraph, whether supplemental means of service should accompany notice by publication. Where no method of service specifically provided for by Rule 1-004 is likely to satisfy or achieve the goal of actual notice, this Paragraph authorizes the court to create a method of service suited to the circumstances of the particular facts presented.
Service by publication; Rule 1-004(K)
This paragraph requires that no service by publication take place without a prior court order authorizing service by publication. This is a significant modification of prior practice in situations where statutes authorized publication without prior court approval. See, e.g., Section 42-2-7(B) NMSA 1978 (authorizing service by publication in condemnation proceeding “[i]f the name or residence of any owner be unknown”); Section 45-1-401 NMSA 1978 (authorizing service by publication in probate proceedings under some circumstances and providing that the court for good cause can provide a different manner of service). Publication notice is seldom likely to achieve actual notice and thus its use should be monitored carefully by the courts. The Supreme Court is authorized to modify statutes providing for notice by publication by requiring prior court approval for service by publication. Legislation affecting procedure is valid unless and until contradicted by a rule of procedure promulgated by the Supreme Court. Rule 1-091 NMRA; Section 38-1-2 NMSA 1978. This paragraph also provides the required content of the notice to be published, the frequency of publication and the place of publication. Omitted from the 2004 amendment is the former provision (Rule 1-004(H)(3)) requiring that publication be “in some newspaper published in the county where the cause is pending” and providing for publication in a newspaper of general circulation in the county only when “no newspaper [was] published in the county”. Publication now always will include publication in a paper of general circulation in the county where the action is pending whether or not the newspaper is published in that county. Where appropriate to the goal of achieving actual notice, the court is free to require, in addition, that publication also be in a newspaper not of general circulation that is published in the county where the cause is pending.
Where the court determines that actual notice by publication is more likely to be achieved by publishing the notice elsewhere, the court must provide for additional published notice in the county that the court deems such notice is most likely to achieve the goal of actual notice to the defendant.
Former Rule 1-004(H)(7), dealing with the required content of repeated publications due to misnomers in the initial publication, has been omitted. The court that orders additional publication will craft an appropriate order concerning its content.
Former Rule 1-004(I) calling for publication to be accompanied by mail notice to persons whose residence is known has been omitted. The court that orders publication has the obligation to fashion means of service reasonably calculated to provide actual notice, Rule 1-004(E)(1), and thus can provide for mailed notice to accompany service of process by publication where reasonable. See Rule 1-004(J).
Proof of service; Rule 1-004(L)
The person obtaining service of process rather than the person serving process is now responsible for filing proof of service.
The means of proof of service when service is accomplished by mail or commercial courier service pursuant to Rule 1-004(F)(1)(b) and when service is made by publication pursuant to Rule 1-004(J) or (K) are provided in those paragraphs.
Service outside the state but in the United States; Rule 1-004(M)
This provision replaces former Rule 1-004(J) (Service of summons outside of state equivalent to publication). Where, as in the case of long arm jurisdiction pursuant to Section 38-1-16 NMSA 1978, service of process can be made outside of New Mexico, this rule requires that service be accomplished in the manner and priority provided in this rule. The Committee considered but rejected a proposal that the method of service need not meet the requirements of this rule so long as it met the requirements for service of process in the place where service occurred.
Service in a foreign country; Rule 1-004(N)
Service in foreign countries is sometimes subject to treaties or other international agreements. This rule, adopted from Federal Rule 4(f) and Rule 4(h)(2) takes into account the special considerations required by international law.
[Approved, March 1, 2005; as amended by Supreme Court Order No. 11-8300-050, effective for cases filed on or after February 6, 2012.]
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.
Rule 1-004 – Process, N.M. R. Civ. P. Dist. Ct. 1-004
N.M. R. Civ. P. Dist. Ct. 1-004.1
Rule 1-004.1 – Guardianship and conservatorship proceedings; process, N.M. R. Civ. P. Dist. Ct. 1-004.1
Except for the papers described in Subparagraphs (1), (10), and (11) of this paragraph, counsel shall file a certificate of service with the court within a reasonable time after service, indicating the date and method of service of any paper not filed with the court.
N.M. R. Civ. P. Dist. Ct. 1-005
ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-016, effective December 31, 2014, authorized the court to designate a place of service on attorneys; provided for the filing and service of orders and notices by the court; provided for the filing and service of documents by an inmate; in Paragraph A, in the first sentence, after “these rules, every”, added “written” and after “written order”, deleted “required by its terms to be served”; in Paragraph B, in the second sentence, after “last known address”, deleted “or, if no address is known, by leaving it with the clerk of the court”; in Paragraph C (1), at the beginning of the sentence, deleted “delivery of” and added “Delivering”; in Paragraph C (1)(c), after “in a conspicuous place”, deleted “therein” and added “in the office”, and added Paragraph C (1)(e); in Paragraph E, in the title, after “Filing”, added “by a party”; in Paragraph F, in the first sentence, after “The filing of”, deleted “pleadings and other”, deleted the former third sentence, which provided that a paper filed by electronic means constituted a written paper, and added the current third sentence; and added Paragraphs G and H. The 2006 amendment, approved by Supreme Court Order 06-8300-20, effective December 18, 2006, added Subparagraph 13 of Paragraph E to provide that copies of mandatory and supplemental disclosures served pursuant to Rule 1-123 NMRA are not filed unless ordered by the court. The 2004 amendment, effective January 3, 2005, substituted “a copy” for “it” in the second sentence of Paragraph B, designated the undesignated former second paragraph of Paragraph B as present Paragraph C, designated the language therein as Subparagraph (1), deleted “within this rule” preceding “means” in the introductory language of that subparagraph and added Subparagraph (2), redesignated former Paragraphs C through E as present Paragraphs D through F, and, in Paragraph E, inserted “indicating the date and method of service” in the introductory language and “and method” in the second paragraph, substituted “settlement” for “judgment” in Subparagraph (12) and deleted “(2), (3)” preceding “(10)” in the second paragraph. The 1997 amendment, effective January 1, 1998, inserted “offer of judgment, designation of record on appeal” in Paragraph A, divided Paragraph B into subparagraphs and added Subparagraph B(2), added “certificate of service” in the paragraph heading of Paragraph D, inserted “together with a certificate of service” and deleted “either before service or” following “court” in the introductory language of Paragraph D, added “on unopposed motions” in Subparagraph D(11), added Subparagraph D(12), rewrote the last undesignated paragraph in Paragraph D, rewrote Paragraph E, deleted former Paragraphs F and G relating to proof of service and defining “move” and “made” within a specified time, and made stylistic changes and gender neutral changes throughout the rule.
For service on an attorney after withdrawal, see Rule 1-089 NMRA. For service of notice in proceedings prior to summons, see Section 38-1-13 NMSA 1978. I. GENERAL CONSIDERATION. Compiler’s notes. – Paragraph B and Rule 1-011 NMRA are deemed to have superseded 105-705, C.S. 1929, which was substantially the same. Paragraph E and Rule 1-011 NMRA are deemed to have superseded 105-510, C.S. 1929, which was substantially the same. When lack of diligence in service inconsequential. – Regardless of any lack of diligence in service on defendants, failure to file suit within one year from the filing of a lien is fatal. Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807. When due process requirements met, lien foreclosed though no service. – Where an owner has both notice and an opportunity to be heard so that the requirements of due process have been met, a materialman may foreclose his lien even though he has failed to establish jurisdiction by either personal service on the owner, or in rem by publication. First Nat’l Bank v. Julian, 1981-NMSC-049, 96 N.M. 38, 627 P.2d 880. Notice in foreclosure sales. – With respect to the kind of notice to be employed in cases of sales under execution and foreclosure, 39-5-1 NMSA 1978, rather than this rule, governs. Production Credit Ass’n v. Williamson, 1988-NMSC-041, 107 N.M. 212, 755 P.2d 56. This rule is applicable only after the court has acquired in personam jurisdiction over the person to be served. Jones v. Montgomery Ward & Co., 1985-NMCA-094, 104 N.M. 636, 725 P.2d 836. Notice of suggestion of death. – Where the plaintiff died before the case went to trial, his attorney was not the proper party, either under Rule 4 (now Rule 1-004 NMRA) or under this rule, 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. SERVICE; WHEN REQUIRED. Service of summons with cross-claim required when parties in default. – Subdivisions (a) and (b) (see now Paragraphs A and B) do not require service of a summons with a cross-claim except on parties in default. Fitzgerald v. Blueher Lumber Co., 1971-NMSC-021, 82 N.M. 312, 481 P.2d 100; Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807. When party not entitled to notice that pleadings amended. – Neither Rule 54(c) (see now Rule 1-054 NMRA), pertaining to default judgments, nor Subdivision (a) (see now Paragraph A) pertaining to service of pleadings, entitles defendant to notice that pleadings have been amended to allege gross negligence rather than negligence against defendant where there was no showing that the damages rested upon this charge and no relief was sought from the damages. Gurule v. Larson, 1967-NMSC-249, 78 N.M. 496, 433 P.2d 81. Failure to serve all parties. – The consequences of a failure to abide by this rule’s requirement that motions be served on all parties to a lawsuit depend upon the nature of the paper involved. Western Bank v. Fluid Assets Dev. Corp., 1991 -NMSC-020, 111 N.M. 458, 806 P.2d 1048. Mortgagee first lienholder could not use the judicial system to enforce its rights in a foreclosure proceeding after deliberately failing to serve notice upon junior lienholders of record of its intention to hold the foreclosure sale, even though the junior lienholders were parties to a lawsuit brought by the mortgagee and were entitled to actual notice of the sale. Western Bank v. Fluid Assets Dev. Corp., 1991 -NMSC-020, 111 N.M. 458, 806 P.2d 1048. III. SAME; HOW MADE. Service of pleadings and show cause order on attorney sufficient. – Service of pleadings and order to show cause made on defendant’s attorney is sufficient service. Sunshine Valley Irrigation Co. v. Sunshine Valley Conservancy Dist., 1932-NMSC-083, 37 N.M. 77, 18 P.2d 251 (decided under former law). Service of summons with cross-claim required when parties in default. – Subdivisions (a) and (b) (see now Paragraphs A and B) do not require service of a summons with a cross-claim except on parties in default. Fitzgerald v. Blueher Lumber Co., 1971-NMSC-021, 82 N.M. 312, 481 P.2d 100; Daughtrey v. Carpenter, 1970-NMSC-151, 82 N.M. 173, 477 P.2d 807. Failure to serve party or his attorney warrants dismissal. – Laws 1891, ch. 66, §4, relating to the delivery of a copy of the declaration, filing of succession pleadings, etc., sustained the court in dismissing a cause on defendant’s motion for failure of plaintiff to serve defendant or his attorney with copy of declaration within 10 days after his appearance. German-American Ins. Co. v. Etheridge, 1895-NMSC-008, 8 N.M. 18, 41 P. 535 (decided under former law). Rule inapplicable where court takes case under advisement. – Where the court has taken the case under advisement before rendition of judgment, and the court has not directed the manner of serving notice upon attorneys where judgment is about to be rendered, statute regarding notice of hearing is applicable rather than service of pleadings and papers. R.V. Smith Supply Co. v. Black, 1939-NMSC-016, 43 N.M. 177, 88 P.2d 269 (decided under former law). Waiver of notice by attorney of record. – An attorney of record may waive notice of intention to apply for order authorizing taking of deposition by oral examination out of court. Davis v. Tarbutton, 1931-NMSC-019, 35 N.M. 393, 298 P. 941 (decided under former law). Service by mail is accomplished by depositing in post office, and the time for further pleading is to be computed from that act. Miera v. Sammons, 1926-NMSC-020, 31 N.M. 599, 248 P. 1096 (decided under former law). Party relying on service by mail has burden of proving mailing. Myers v. Kapnison, 1979-NMCA-085, 93 N.M. 215, 598 P.2d 1175. Unchallenged, an attorney’s certificate is sufficient proof of mailing. Myers v. Kapnison, 1979-NMCA-085, 93 N.M. 215, 598 P.2d 1175. Service at last known address proper where no designation of permanent address change. – Service upon the defendant is properly made by mailing the notice to the defendant’s last known address where there is no designation of a permanent change of address sufficient to alert the district court and the plaintiff that the defendant’s mail should be sent elsewhere than to his last known address. Thompson v. Thompson, 1983-NMSC-025, 99 N.M. 473, 660 P.2d 115. IV. FILING. A court clerk lacks the discretion to reject pleadings for technical violations, and a pleading will be considered filed when delivered to the clerk. It is then up to the trial court to decide whether to allow a party to correct any deficiencies or to strike the pleadings. Ennis v. Kmart Corp., 2001-NMCA-068, 131 N.M. 32, 33 P.3d 32, cert denied, 130 N.M. 722, 31 P.3d 380. Where court clerk refused to accept pleading due to incorrect caption, trial court had discretion to allow the pleading party to correct the deficiencies, and to have the pleading considered timely filed. Ennis v. Kmart Corp., 2001-NMCA-068, 131 N.M. 32, 33 P.3d 32, cert denied, 130 N.M. 722, 31 P.3d 380. Signed motion deemed “regularly filed” paper. – A motion signed by a party or his attorney is a paper “regularly filed in a cause with the clerk of the district court”. Vosburg v. Carter, 1927-NMSC-095, 33 N.M. 86, 262 P. 175; Pershing v. Ward, 1927-NMSC-096, 33 N.M. 91, 262 P. 177 (decided under former law). Law reviews. – For article, “Attachment in New Mexico – Part II,” see 2 Nat. Resources J. 75 (1962). For annual survey of New Mexico law relating to administrative law, see 13 N.M.L. Rev. 235 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. – 4 Am. Jur. 2d Appearance §1 et seq.; 9 Am. Jur. 2d Bankruptcy §§752 to 759; 23 Am. Jur. 2d Depositions and Discovery §143; 56 Am. Jur. 2d Motions, Rules, and Orders §§8, 10, 12, 16, 17, 36; 61B Am. Jur. 2d Pleading §§899, 901, 902. Withdrawal of pleading after delivering to proper officer as affecting question whether it is filed, 37 A.L.R. 670. Appearance for purpose of making application for removal of cause to federal court as a general appearance, 81 A.L.R. 1219. Affidavit of substantial defense to merits in an attachment or garnishment proceeding as general appearance, 116 A.L.R. 1215. 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. 60 C.J.S. Motions and Orders §§11, 13 to 19; 71 C.J.S. Pleading §§ 407 to 409, 411 to 413, 416.
Rule 1-005 – Service and filing of pleadings and other papers, N.M. R. Civ. P. Dist. Ct. 1-005
Service by facsimile is accomplished when the transmission of the pleading or paper is completed.
N.M. R. Civ. P. Dist. Ct. 1-005.1
ANNOTATIONS The 2004 amendment, effective January 3, 2005, substituted “service” for “transmission” twice in Paragraph B, rewrote the paragraph heading and substituted “filed with the court by facsimile transmission” for “faxed directly to the court” in the introductory language of Paragraph D, and added “unless otherwise approved by the court” in Subparagraph (3) of that paragraph, rewrote the paragraph heading and the introductory language of Paragraph G, deleted former Paragraph H, which dealt with proof of service by facsimile, and redesignated former Paragraphs I and J as present Paragraphs H and I. The 2000 amendment, effective August 1, 2000, added Paragraph J.
Rule 1-005.1 – Service and filing of pleadings and other papers by facsimile, N.M. R. Civ. P. Dist. Ct. 1-005.1
N.M. R. Civ. P. Dist. Ct. 1-005.2
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-039, effective January 1, 2017, in Subparagraph E(1), deleted “six dollars ($6.00)” and added “eight dollars ($8.00)”; in Subparagraph E(2), deleted “shall pay an electronic services fee of four dollars ($4.00) per electronic transmission of one or more documents served on one or more persons or entities in any single case” and added “may do so without charge”; and in Subparagraph E(3), deleted “ten dollars ($10.00)” and added “twelve dollars ($12.00)”. The 2015 amendment, approved by Supreme Court Order No. 15-8300-002, effective for all cases pending or filed on or after July 1, 2015, specified that the electronic filing system (EFS) approved by the Supreme Court for use by the district courts pursuant to this rule applies to civil actions, that for the purposes of the electronic filing requirement, civil actions does not include domestic relations actions in which the New Mexico Child Support Enforcement Division is a party or participant, unless the local rule specifies otherwise, and created a list of exceptions to the requirement that documents that a party proposes for issuance by the court be transmitted by electronic mail separate from the EFS; in Subparagraph (3) of Paragraph A, after “electronic transmission”, added “in civil actions”; in Subparagraph (1) of Paragraph B, after “domestic relations actions”, added “in which the New Mexico Child Support Enforcement Division is a party or participant”; in Subparagraph (1) of Paragraph L, deleted the first occurrence of “A” and added “Except for documents listed in Subparagraph (4) of this paragraph, a”; in Subparagraph (2) of Paragraph L, deleted “Proposed” and added “Except for documents listed in Subparagraph (4) of this paragraph, proposed”; in Subparagraph (3) of Paragraph L, after “(3)”, deleted “If the proposed document is a summons, the party submitting the proposed summons shall first electronically file the complaint or other initiating pleading in the EFS. The clerk shall issue the summons electronically and return it by email to the party who requested it for service as provided by Rule 1-004 NMRA. Other documents” and added “Documents”, after “requesting party by email”, added “or through the EFS as appropriate”, after “electronically filing the document in the EFS”, added “if necessary”; and added new Subparagraph (4) of Paragraph L. The 2014 amendment, approved by Supreme Court Order No. 14-8300-024, effective December 31, 2014, permitted local rules approved by the Supreme Court to modify the application of the rule; in Paragraph A (3), after “electronic transmission”, added “in civil actions”; in Paragraph B (1), in the fourth sentence, after “For purposes of this rule”, added “unless a local rule approved by the Supreme Court provides otherwise”; and in Paragraph L, added the introductory sentence. The 2013 amendment, approved by Supreme Court Order No. 13-8300-001, effective January 29, 2013, required that the confirmation receipt for an electronically filed document include the email address of the person filing the document; and in Paragraph J, deleted former Subparagraph (4), which required that the confirmation receipt include the document code; renumbered the subsequent paragraphs; and in Subparagraph (d), at the beginning of the sentence, deleted “name” and added “email address”. The second 2011 amendment, approved by Supreme Court Order No. 11-8300-046, effective for all documents electronically filed on, after, or before November 21, 2011, added the last sentence in Paragraph G, providing that for purposes of electronic filing only, the date and time that the filer submits the electronic filing envelope will serve as the filing date and time for purposes of meeting statute of limitations or any other filing deadlines, notwithstanding rejection of the attempted filing or its placement into an error queue for additional processing. The first 2011 amendment, approved by Supreme Court Order 11-8300-035, effective for all cases filed or pending on or after September 1, 2011, rewrote this rule to the extent that a detailed comparison is impracticable. The 2006 amendment, approved by Supreme Court Order 06-8300-27, effective January 15, 2007, revised Paragraph D to require compliance with technical specifications approved by the Supreme Court instead of specifications approved by the district court in which the papers or pleadings are filed to permit electronic filing of pleadings and papers that must be accompanied by the filing of a fee. The 2004 amendment, effective January 3, 2005, rewrote Paragraph B, added “Service by” in the heading for Paragraph C and substituted “serve” for “send”, “service” for “transmission” and “or party” for “registered” in that paragraph, inserted “with the court” in the introductory language of Paragraph D, deleted former Paragraph F, which dealt with service by electronic transmission, and redesignated former Paragraphs G and H as present Paragraphs F and G, and deleted former Paragraph I, which dealt with proof of service by electronic transmission, and redesignated former Paragraph J as present Paragraph H. The 2000 amendment, effective August 1, 2000, added Paragraph J. The 1999 amendment, effective March 8, 1999, rewrote Paragraph G to define “day” for the purposes of electronic transmissions and to allow electronic transmissions received by midnight on the day preceding the next business day of the court to be considered filed on the immediately preceding business day of the court.
For definition of computer generated “signature”, see Rule 1-011 NMRA. For service by electronic transmission in criminal cases, see Rule 5-103.2 NMRA. For service by electronic transmission in the United States District Court for the District of New Mexico, see D.N.M.LR-CV 5.6 NMRA.
Rule 1-005.2 – Electronic service and filing of pleadings and other papers, N.M. R. Civ. P. Dist. Ct. 1-005.2
N.M. R. Civ. P. Dist. Ct. 1-006
Committee commentary. – In 2014, the Joint Committee on Rules of Procedure amended the time computation rules, including Rules 1-006, 2-104, 3-104, 5, 104, 6-104, 7-104, 8-104, 10-107, and 12-308 NMRA, and restyled the rules to more closely resemble the federal rules of procedure. See Fed. R. Civ. Pro. 6; Fed. R. Crim. Pro. 45.
The method for computing time periods of ten days or less set forth in Subparagraph (A)(2) of this rule does not apply to any statutory notice that must be given prior to the filing of an action. For example, several provisions of the Uniform Owner-Resident Relations Act require such notice. See, e.g., NMSA 1978, § 47-8-33(D) (requiring the landlord to give the tenant three days notice prior to terminating a rental agreement for failure to pay rent).
Subparagraph (A)(4) of this rule contemplates that the court may be closed or unavailable for filing due to weather, technological problems, or other circumstances. A person relying on Subparagraph (A)(4) to extend the time for filing a paper should be prepared to demonstrate or affirm that the court was closed or unavailable for filing at the time that the paper was due to be filed under Subparagraph (A)(1), (A)(2), or (A)(3).
[Adopted by Supreme Court Order No. 14-8300-016, effective for all cases pending or filed on or after December 31, 2014.]
ANNOTATIONS The 2014 amendment, approved by Supreme Court Order No. 14-8300-016, effective December 31, 2014, completely rewrote the rule; deleted former Paragraph A which provided rules for computation of time by excluding the day of the event from which the period of time began to run, including the last day of the period of time, excluding Saturdays, Sundays, legal holidays and days of severe inclement weather, and defined legal holidays; deleted former Paragraph B which provided for the enlargement of the period of time by the court; deleted former Paragraph C which provided for the service of motions for the enlargement of the period of time and for ex parte applications; deleted former Paragraph D, which provided for a three day enlargement of the period of time when a party was served by mail; and added current Paragraphs A through D. The 1995 amendment, effective January 1, 1995, in Paragraph A, inserted “by local rules of any district court” in the first sentence, inserted the language beginning “or, when the act” and ending “court inaccessible” and substituted “one of the aforementioned holidays” for “a Saturday, a Sunday or a legal holiday” in the second sentence, and added the last two sentences; deleted “or any Supreme Court rule” following “1-062” near the end of Paragraph B; substituted the present paragraph heading in Paragraph C for “For motions; affidavits”; and substituted “the party” for “him” in two places in Paragraph D.
For failure to rule on motion as denial, see Section 39-1-1 NMSA 1978. Compiler’s notes. – Paragraph B is deemed to have superseded Trial Court Rule 105-704, derived from 105-704, C.S. 1929, and 105-508, C.S. 1929, which were substantially the same. It may also, together with the other Rules of Civil Procedure, be deemed to have superseded 105-802, C.S. 1929, relating to time for hearings. Paragraph C is deemed to have superseded 105-702, C.S. 1929, which was substantially the same. It is also deemed to have superseded 34-340, 1929 Comp., relating to notice of motion where officers fail to pay over money. I. GENERAL CONSIDERATION. Distinctness of paragraphs of rule – The computation of time provision for filing periods of less than eleven days in Paragraph A of this rule and the provision allowing an extra three days if the pleading is served by mail in Paragraph D of this rule are distinct provisions of this rule. Garza v. State Taxation & Revenue Dep’t., 2004-NMCA-061, 135 N.M. 673, 92 P.3d 685. Administrative appeals. – Paragraph A of this rule does apply to filing motions under Rule 1-074 R NMRA. Garza v. State Taxation & Revenue Dep’t, 2004-NMCA-061, 135 N.M. 673, 92 P.3d 685. Applicability to Workmen’s Compensation Law. – This rule, providing the method of computation of time, should be applicable generally to the Workmen’s Compensation Law. Keilman v. Dar Tile Co., 1964-NMSC-138, 74 N.M. 305, 393 P.2d 332. The three-day mailing period of Paragraph D applies to peremptory challenges exercised under Workers’ Compensation Administration Formal Hearing Rule XXIII. Rodriguez v. El Paso Elec. Co., 1992 -NMCA-042, 113 N.M. 672, 831 P.2d 608. II. COMPUTATION. Exclusion of weekends and holidays. – Paragraph A of this rule superseded 12-2-2 NMSA 1978 (see now 12-2A-7 NMSA 1978), which only extended a time period to the following Monday if the last day falls on a Sunday. Therefore, a claim under the Tort Claims Act was not barred by the two-year statute of limitations of 41-4-15 NMSA 1978 where the last day of the two-year period fell on a Saturday and the plaintiff filed her claim on the following Monday. Dutton v. McKinley Cnty. Bd. of Comm’rs, 1991-NMCA-130, 113 N.M. 51, 822 P.2d 1134. Whether limitation considered procedural or substantive, etc., deemed immaterial. – Whether a case is timely filed under Subdivision (a) (see now Paragraph A) or under 12-2-2 NMSA 1978 (see now 12-2A-7 NMSA 1978) is irrelevant, since these two provisions, considered together, make it amply clear that whether a limitation is considered procedural or substantive or whether it is a limitation on the right and remedy, or on only the remedy, is immaterial so far as the method to be utilized in computing time is concerned. Keilman v. Dar Tile Co., 1964-NMSC-138, 74 N.M. 305, 393 P.2d 332. Medical malpractice action. – The three-year limitation period of 41-5-13 NMSA 1978 may be extended by Subdivisions (a) and (e) (see now Paragraphs A and D), to allow the timely filing of a medical malpractice action. Saiz v. Barham, 1983-NMCA-132, 100 N.M. 596, 673 P.2d 1329. III. ENLARGEMENT. Motion for attorney’s fees for bad faith litigation. – Where plaintiff sought attorney’s fees based on a claim that defendant engaged in bad faith litigation; defendant’s attorney received plaintiff’s motion five days after the motion was filed; defendant filed a response to plaintiff’s motion thirty-six days after plaintiff’s motion was filed together with a request for an extension of time; defendant’s attorney claimed that the attorney was on a three-week vacation when plaintiff’s motion arrived at the attorney’s office and that the motion had been misfiled by a secretary; the court noted that defendant’s notice of appeal in the case, bearing the attorney’s signature, had been filed within the fifteen day period for response to plaintiff’s motion, at a time when the attorney asserted the attorney was on vacation; and the court denied the request for an extension of time, determining that it was not justified by excusable neglect, the court abused its discretion because the motion for attorney’s fees for bad faith litigation was a new and relatively rare claim for monetary relief from defendant which defendant should not have expected. Skeen v. Boyles, 2009-NMCA-080, 146 N.M. 627, 213 P.3d 531. This rule places exclusive control as to enlargement of time for pleading in court, not with counsel. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Whatever may have been the practice, there can be no valid excuse for failure to attend at any hearing of which an attorney has been notified, or to timely arrange with the court to be excused therefrom. Rogers v. Lyle Adjustment Co., 1962-NMSC-089, 70 N.M. 209, 372 P.2d 797. Court not allowed to extend or enlarge time under certain rules. – Under the terms of Subdivision (b) (now Paragraph B), the court cannot extend or enlarge the time for taking any action under Rule 52(B)(b) (now Rule 1-052 NMRA) except under the conditions stated in such rule. Wagner Land & Inv. Co. v. Halderman, 1972-NMSC-019, 83 N.M. 628, 495 P.2d 1075. Change procedure. – Where the effect of rule change, as applied to a case, extended the time for filing a motion for a new trial from 10 to 12 days contrary to Rule 59(b) (now Rule 1-059 NMRA), it is clearly a change in procedure. Marquez v. Wylie, 1967-NMSC-245, 78 N.M. 544, 434 P.2d 69. Rule does not authorize trial court to extend time period fixed by statute. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 93 N.M. 353, 588 P.2d 554. Subdivision (b) (now Paragraph B) may not affect extension of time limitation of 45-3-806A NMSA 1978 (relating to allowance of claims against a decedent’s estate) because such an extension would be inconsistent with that statute’s barring of a disallowed claim unless proceedings are commenced not later than 60 days after mailing of notice of disallowance. Mathieson v. Hubler, 1978-NMCA-119, 92 N.M. 381, 588 P.2d 1056, cert. denied, 92 N.M. 353, 588 P.2d 554. Section 72-7-1B NMSA 1978 specifically deals with the time limits for serving a notice of appeal from a decision of the state engineer and is controlling over this section. The trial courts are without authority to extend a period of time fixed by statute. In re Metropolitan Inv., Inc., 1990-NMCA-070, 110 N.M. 436, 796 P.2d 1132. IV. FOR MOTIONS. Applicability. – The five-day time limit of this rule did not apply to a will contestant’s petition for a formal testacy proceeding filed pursuant to 45-3-401 NMSA 1978. Vieira v. Estate of Cantu, 1997-NMCA-042, 123 N.M. 342, 940 P.2d 190. Court order may alter notice period. – One-day notice of domestic relations hearing in which ex-husband was ordered to sign promissory note was appropriate where he was put on notice by prior court order that he might have to appear before court “any morning” and where no new issues were raised by ex-wife at hearing. Wolcott v. Wolcott, 1984-NMCA-089, 101 N.M. 665, 687 P.2d 100. Purported notice failing to comply. – Where trial court ruled upon the question of visitation rights at the hearing on appellant’s motion for summary judgment and without any pleading appellee sought the right of visitation, without any notice to appellant that the matter of visitation rights would be considered and without opportunity to meet that particular question, appellant did not have proper notice of appellee’s motion to stay the execution of the judgment and appellee’s purported notice of his motion to stay the judgment did not comply with this rule. Padgett v. Padgett, 1960-NMSC-123, 68 N.M. 1, 357 P.2d 335. V. ADDITIONAL TIME AFTER SERVICE BY MAIL. Entry of summary judgment held error. – Where service of the motion for summary judgment is by mail and judgment is entered prior to the time plaintiff could be required to interpose counter-affidavits or other opposing evidence, pursuant to Subdivision (e) (now Paragraph D) entry of summary judgment is error. Barnett v. Cal. M., Inc., 1968-NMSC-159, 79 N.M. 553, 445 P.2d 974. Subdivision (e) (see now Paragraph D) has no application when computing time for notice of appeal because the time for appeal starts to run from entry of judgment. The rule only applies to enlarge periods of time in which a party has to act after service of a notice by mail. Socorro Livestock Mkt., Inc. v. Orona, 1978-NMSC-084, 92 N.M. 236, 586 P.2d 317. A party notified by mail of judgment entered against him in magistrate court who filed a notice of appeal 16 days later could not take advantage of the three-day extension provision of Subdivision (e) (now Paragraph D). Socorro Livestock Mkt., Inc. v. Orona, 1978-NMSC-084, 92 N.M. 236, 586 P.2d 317. Am. Jur. 2d, A.L.R. and C.J.S. references. – 9A Am. Jur. 2d Bankruptcy §2170 et seq.; 20 Am. Jur. 2d Courts §5; 56 Am. Jur. 2d Motions, Rules and Orders §§10, 11, 13, 14, 16, 33; 58 Am. Jur. 2d Notice §§34 to 36, 43, 46; 62B Am. Jur. 2d Process §§114-125; 74 Am. Jur. 2d Time §§15 to 19. “Until” as a word of inclusion or exclusion, where one is given until a certain day to file a pleading, 16 A.L.R. 1095. Inclusion or exclusion of first and last day for purposes of statute of limitations, 20 A.L.R. 1249. Power of trial court indirectly to extend time for appeal, 89 A.L.R. 941, 149 A.L.R. 740. Failure to file return within limitation provisions of Internal Revenue Code, excuse for, 30 A.L.R.2d 452. 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. Time for payment of insurance premium where last day falls on Sunday or a holiday, 53 A.L.R.2d 877. Jurisdiction or power of grand jury after expiration of term of court for which organized, 75 A.L.R.2d 544. Future date, inclusion or exclusion of first and last day in computing the time for performance of an act or event which must take place a certain number of days before, 98 A.L.R.2d 1331. Vacating judgment or granting new trial in civil case, consent as ground of after expiration of term or time prescribed by statute or rules of court, 3 A.L.R.3d 1191. Necessity and propriety of counter-affidavits in opposition to motion for new trial in civil case, 7 A.L.R.3d 1000. When medical expense incurred under policy providing for payment of expenses incurred within fixed period of time from date of injury, 10 A.L.R.3d 468. Attorney’s inaction as excuse for failure to timely prosecute action, 15 A.L.R.3d 674. What circumstances excuse failure to submit will for probate within time limit set by statute, 17 A.L.R.3d 1361. Construction and effect of contractual or statutory provisions fixing time within which arbitration award must be made, 56 A.L.R.3d 815. Extension of time within which spouse may elect to accept or renounce will, 59 A.L.R.3d 767. Validity of service of summons or complaint on Sunday or holiday, 63 A.L.R.3d 423. When is office of clerk of court inaccessible due to weather or other conditions for purpose of computing time period for filing papers under Rule 6(a) of Federal Rules of Civil Procedure, 135 A.L.R. Fed. 259. 60 C.J.S. Motions and Orders §§8, 18, 28; 66 C.J.S. Notice §§ 26 to 32; 71 C.J.S. Pleading §§ 98, 114, 219; 72 C.J.S. Process §§ 41, 55; 86 C.J.S. Time §§ 13, 29 to 38.
Rule 1-006 – Time, N.M. R. Civ. P. Dist. Ct. 1-006
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