Magistrate Court; Attachment

NMSA 1978 ch. 35, art. 9

in effect

NMSA 1978, § 35-9-1 Attachment; affidavit and bond; grounds

35-9-1. Attachment; affidavit and bond; grounds A. An attachment may be issued in a civil action in the magistrate court only upon the filing of a civil complaint, accompanied by: (1) a bond to the defendant in double the sum claimed in the complaint, with sufficient sureties, conditioned that the plaintiff will diligently prosecute the action to final judgment without delay and will pay the defendant all damages and costs sustained from the attachment if no judgment is recovered against the defendant in the action; and (2) an affidavit of the plaintiff that one or more of the following facts exists: (a) the defendant is not a resident of this state; (b) the defendant has concealed himself or left his usual place of abode in this state so that ordinary civil process cannot be served on him; (c) the defendant is about to remove his personal property out of this state or has concealed or disposed of his property fraudulently so as to defraud, hinder or delay his creditors; (d) the defendant is about to convey or assign, conceal or dispose of his property fraudulently so as to hinder or delay his creditors; (e) the debt that is the subject of the action was contracted out of this state, and the defendant has secretly removed his property into this state with the intent to hinder, delay or defraud his creditors; (f) the defendant is a corporation whose principal office or place of business is out of the state, and the corporation has not designated an agent in this state for service of process against the corporation; (g) the defendant fraudulently contracted the debt or incurred the obligation that is the subject of the action or obtained credit from the plaintiff by false pretenses; or (h) the debt that is the subject of the action is for labor, for any services rendered by the plaintiff or his assignor at the instance of the defendant or was contracted for the necessities of life. B. An attachment may issue upon a demand not yet due in any case where an attachment is authorized, in the same manner as upon demands already due. 1953 Comp., § 36-11-1, enacted by Laws 1968, ch. 62, § 114; 1991, ch. 82, § 14.

NMSA 1978, § 35-9-2 Attachment; execution

35-9-2. Attachment; execution A. The attachment shall order the sheriff or a full-time, salaried deputy sheriff to attach personal property of the defendant within the magistrate district having a value sufficient to satisfy the amount claimed in the complaint in the action, safely to keep the property to satisfy any judgment that might be recovered in the action and to make return of the attachment to the magistrate at the time specified therein not less than five days nor more than fifteen days from the date of issuance. B. The sheriff or deputy shall comply with the order and: (1) immediately make an inventory of the property seized; and (2) serve on the defendant personally, or, if the defendant cannot be found, leave at the defendant's residence, or if the defendant has no residence, leave with the person in whose possession the property is found, the civil complaint and summons and form for answer to civil complaint, along with a copy of the attachment and his inventory. C. No property attached by the sheriff or deputy shall be removed by him if the person in possession of, or claiming, the property gives him a bond to the plaintiff in double the sum claimed in the complaint in the action, or in double the value of the property attached, whichever is less, conditioned that such property will be produced to satisfy any execution that might be issued upon any judgment which might be obtained by the plaintiff in the action. 1953 Comp., § 36-11-2, enacted by Laws 1968, ch. 62, § 115.

NMSA 1978, § 35-9-3 Attachment; hearing; judgment

35-9-3. Attachment; hearing; judgment A. If the defendant was personally served as provided in Section 35-9-2B NMSA 1978, or if he appears as provided in the civil summons, the magistrate shall proceed to hear and determine the action on its merits as in other civil actions. B. If the defendant was not personally served as provided in Section 35-9-2B NMSA 1978, but his personal property was seized under the attachment and he does not appear as provided in the summons, the magistrate shall order the sheriff to notify the defendant by newspaper publication or by posting in at least three of the most public places in the county that his property has been attached and that, unless he appears before the magistrate at a time and place mentioned in the notice, not less than twenty days or more than ninety days from the date of the notice, judgment will be rendered against him and his property sold to pay the debt. If the defendant appears when notified as provided in this subsection, the magistrate shall proceed to hear and determine the action on its merits as in other civil actions. If the defendant fails to appear when notified as provided in this subsection, the magistrate shall enter a default judgment against him in the action. 1953 Comp., § 36-11-3, enacted by Laws 1968, ch. 62, § 116.

NMSA 1978, § 35-9-4 Attachment; dissolution

35-9-4. Attachment; dissolution A. An attachment may be dissolved at any time before final judgment if the defendant appears and pleads to the action and posts bond to the plaintiff in double the sum claimed in the complaint, or double the value of the property attached, whichever is less, with sufficient sureties, conditioned that the property will be available to satisfy any judgment which might be entered against him in the action. B. When an attachment is dissolved, all proceedings touching the property attached are vacated, and the action shall proceed as if the attachment had not been issued. 1953 Comp., § 36-11-4, enacted by Laws 1968, ch. 62, § 117.

NMSA 1978, § 35-9-5 Attachment; suit on bond

35-9-5. Attachment; suit on bond The bond given by the plaintiff or other person in an attachment action in the magistrate court may be sued upon in the name of the state by any party injured, and shall proceed as in other civil actions. 1953 Comp., § 36-11-5, enacted by Laws 1968, ch. 62, § 118.

NMSA 1978, § 35-9-6 Attachment; special provisions

35-9-6. Attachment; special provisions All laws and procedures governing magistrate courts apply to attachment actions in the magistrate court except as otherwise provided by law. 1953 Comp., § 36-11-6, enacted by Laws 1968, ch. 62, § 119.

NMSA 1978, § 35-9-7 Attachment; form of bond

35-9-7. Attachment; form of bond Attachment bonds in civil actions in the magistrate court shall be in substantially the following form: "STATE OF NEW MEXICO ____________ MAGISTRATE DISTRICT, DIVISION _______ (Name), Plaintiff)) v.) CIVIL DOCKET NO. ________ (Name), Defendant)) ATTACHMENT BOND "STATE OF NEW MEXICO ____________ MAGISTRATE DISTRICT, DIVISION _______ (Name), Plaintiff )) v. ) CIVIL DOCKET NO. ________ (Name), Defendant )) ATTACHMENT BOND We bind ourselves, our heirs, executors and administrators to the state of New Mexico in the sum of _________ ($ _____) on condition that the plaintiff will diligently prosecute this action to final judgment without delay, will pay to the defendant all money found due to him in the action, and will pay all damages that may accrue to the defendant by reason of the attachment, upon completion of which this obligation is void. ______________________________ Plaintiff (Principal) ______________________________ Surety ______________________________ Surety ______________________________ Plaintiff (Principal) ______________________________ Surety ______________________________ Surety Approved _____________, 19 ___ __________________________________ Magistrate" 1953 Comp., § 36-11-7, enacted by Laws 1968, ch. 62, § 120.

NMSA 1978, § 35-9-8 Attachment; form of writ

35-9-8. Attachment; form of writ Writs of attachment in civil actions in the magistrate court shall be in substantially the following form: "STATE OF NEW MEXICO ____________ MAGISTRATE DISTRICT, DIVISION _______ (Name), Plaintiff)) v.) CIVIL DOCKET NO. ________ (Name), Defendant)) WRIT OF ATTACHMENT "STATE OF NEW MEXICO ____________ MAGISTRATE DISTRICT, DIVISION _______ (Name), Plaintiff )) v. ) CIVIL DOCKET NO. ________ (Name), Defendant )) WRIT OF ATTACHMENT THE STATE OF NEW MEXICO TO: The sheriff or a full-time, salaried deputy sheriff: You are ordered to attach personal property of the defendant in this action having a value sufficient to satisfy the sum of _______ ($ _____), with interest and costs, wherever the same may be found in the county, safely to keep the property to satisfy any judgment that might be recovered by the plaintiff in this action, and to make return of this writ to me on ________, 19 ___, presenting with your return a copy of your inventory of property attached. Dated _________, 19 ___ ________________________________ Magistrate" Dated _________, 19 ___ ________________________________ Magistrate" 1953 Comp., § 36-11-8, enacted by Laws 1968, ch. 62, § 121.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18535/index.doFetched: 10/20/2026