Parties

NMSA 1978 ch. 38, art. 4

in effect

NMSA 1978, § 38-4-2 [Several persons liable on contract, judgment or statute; parties defendant.]

38-4-2. [Several persons liable on contract, judgment or statute; parties defendant.] Where two or more persons are bound by contract or by judgment, decree or statute, whether jointly only, or jointly or severally, or severally only, and including the parties to negotiable paper, common orders and checks, and sureties on the same, or separate instruments, or by any liability growing out of the same, the action thereon may, at the option of the plaintiff, be brought against any or all of them; when any of these so bound are dead, the action may be brought against any or all of the survivors with any or all of the representatives of the decedents, or against any or all such representatives. An action or judgment against any one or more of several parties jointly bound, shall not be a bar to proceedings against the others. Laws 1880, ch. 6, § 5; C.L. 1884, § 1885; C.L. 1897, § 2942; Code 1915, § 4076; C.S. 1929, § 105-110; 1941 Comp., § 19-602; 1953 Comp., § 21-6-2.

NMSA 1978, § 38-4-3 [Joint contracts create joint and several liability; assumption of debt; partners; parties defendant.]

38-4-3. [Joint contracts create joint and several liability; assumption of debt; partners; parties defendant.] All contracts, which by the common law are joint only, shall be held and construed to be joint and several; and in all cases of joint obligations or assumptions by partners and others, suit may be brought and prosecuted against any one or more of the parties liable thereon, and when more than one person is joined as defendant in any such suit, such suit may be prosecuted, and judgment rendered against any one or more of such defendants. Laws 1878, ch. 4, § 3; C.L. 1884, § 1889; C.L. 1897, § 2946; Code 1915, § 4078; C.S. 1929, § 105-112; 1941 Comp., § 19-603; 1951 Comp., § 21-6-3.

NMSA 1978, § 38-4-5 [Suits against partners; joinder; enforcement of judgment; service of process.]

38-4-5. [Suits against partners; joinder; enforcement of judgment; service of process.] Suits may be brought by or against a partnership as such, or against all or either of the individual members thereof; and a judgment against the firm as such may be enforced against the partnership's property, or that of such members as have appeared or been served with summons; but a new action may be brought against the other members in the original cause of action. When the action is against the partnership as such, service of summons on one of the members, personally, shall be sufficient service on the firm. Laws 1880, ch. 6, § 6; C.L. 1884, § 1886; C.L. 1897, § 2943; Code 1915, § 4077; C.S. 1929, § 105-111; 1941 Comp., § 19-605; 1953 Comp., § 21-6-5.

NMSA 1978, § 38-4-6 [Married woman.]

38-4-6. [Married woman.] A married woman shall sue and be sued as if she were unmarried. Laws 1897, ch. 73, § 8; C.L. 1897, § 2685 (8); Code 1915, § 4075; C.S. 1929, § 105-109; 1941 Comp., § 19-606; 1953 Comp., § 21-6-6.

NMSA 1978, § 38-4-7 Infant; suits between spouses

38-4-7. Infant; suits between spouses An infant who has been lawfully married, may institute, prosecute to judgment or defend any action against his spouse in his own name without a guardian or next friend. Laws 1897, ch. 73, § 9; C.L. 1897, § 2685 (9); Code 1915, § 4080; Laws 1921, ch. 34, § 1; C.S. 1929, § 105-201; 1941 Comp., § 19-607; 1953 Comp., § 21-6-7; Laws 1975, ch. 257, § 8-105.

NMSA 1978, § 38-4-8 [Infants; bond of next friend.]

38-4-8. [Infants; bond of next friend.] Any person who acts as next friend for an infant in any suit to recover any personal property, debt or damages, shall, if required by the court, execute a bond to such infant in double the amount claimed in such suit, with such sureties as shall be approved by the court, conditioned that such next friend shall account to such infant for all money or property which may be recovered in such suit. Such bond shall be delivered to and filed in the office of the clerk of the court in which said suit is pending. Laws 1897, ch. 73, § 11; C.L. 1897, § 2685 (11); Code 1915, § 4082; C.S. 1929, § 105-203; 1941 Comp., § 19-608; 1953 Comp., § 21-6-8.

NMSA 1978, § 38-4-9 Costs in suit brought by certain representatives of infant

38-4-9. Costs in suit brought by certain representatives of infant The guardian, conservator or next friend of any infant who commences or prosecutes a suit shall be responsible for the costs thereof, unless such infant be permitted by the court to sue as a poor person, as provided by law. Laws 1897, ch. 73, § 12; C.L. 1897, § 2685 (12); Code 1915, § 4083; C.S. 1929, § 105-204; 1941 Comp., § 19-609; 1953 Comp., § 21-6-9; Laws 1975, ch. 257, § 8-106.

NMSA 1978, § 38-4-10 Guardian ad litem for infant defendant

38-4-10. Guardian ad litem for infant defendant Appointment of a guardian ad litem may be made by the court in which the suit is pending, or by the judge thereof in vacation, upon the written request of the infant defendant, if the age of fourteen years or more, or, if said infant is under the age of fourteen, on the written request of a relative or friend of the infant, or on the written consent of any competent person proposed as guardian ad litem, and such request and consent shall be filed in the office of the clerk of the court before any answers by such infant shall be filed. Laws 1897, ch. 73, § 14; C.L. 1897, § 2685 (14); Code 1915, § 4085; C.S. 1929, § 105-206; 1941 Comp., § 19-610; 1953 Comp., § 21-6-10; Laws 1975, ch. 257, § 8-107.

NMSA 1978, § 38-4-11 Failure to apply for appointment of guardian ad litem

38-4-11. Failure to apply for appointment of guardian ad litem If an infant defendant, or a relative or friend of an infant under the age of fourteen, neglects for twenty days to procure the appointment of a guardian ad litem to defend the suit, the court shall appoint some competent person to be the guardian ad litem for such infant in the defense of such suit. Laws 1897, ch. 73, § 15; C.L. 1897, § 2685 (15); Code 1915, § 4086; C.S. 1929, § 105-207; 1941 Comp., § 19-611; 1953 Comp., § 21-6-11; Laws 1975, ch. 257, § 8-108.

NMSA 1978, § 38-4-12 Liability of guardian ad litem for costs

38-4-12. Liability of guardian ad litem for costs No person appointed guardian ad litem for an infant for the purpose of defending a suit against such infant shall be liable for the costs of such suit, unless especially charged by the court for some personal misconduct in such cause. Laws 1897, ch. 73, § 16; C.L. 1897, § 2685 (16); Code 1915, § 4087; C.S. 1929, § 105-208; 1941 Comp., § 19-612; 1953 Comp., § 21-6-12; Laws 1975, ch. 257, § 8-109.

NMSA 1978, § 38-4-13 Definition of "infant" as used in Sections 38-4-7 through 38-4-12 NMSA 1978

38-4-13. Definition of "infant" as used in Sections 38-4-7 through 38-4-12 NMSA 1978 As used in Sections 38-4-7 through 38-4-12 NMSA 1978, "infant" means a person who has not reached the age of majority. 1953 Comp., § 21-6-12.1, enacted by Laws 1973, ch. 64, § 1.

NMSA 1978, § 38-4-14 Incapacitated person; definition

38-4-14. Incapacitated person; definition As used in the Probate Code [Chapter 45 NMSA 1978] the term "incapacitated person" means any person who demonstrates over time either partial or complete functional impairment by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he is unable to manage his personal care or he is unable to manage his property and financial affairs. Laws 1925, ch. 22, § 1; C.S. 1929, § 85-301; 1941 Comp., § 19-613; 1953 Comp., § 21-6-13; Laws 1975, ch. 257, § 8-110; 1989, ch. 252, § 1.

NMSA 1978, § 38-4-15 Appointment of guardian ad litem to defend suit

38-4-15. Appointment of guardian ad litem to defend suit Appointment of a guardian ad litem shall be made by the court in which the suit is pending, or by the judge thereof in vacation, upon the written request and petition of a relative or friend of the incapacitated person. However, in the event no relative or friend of the incapacitated person makes application for the appointment of a guardian ad litem within twenty days after service of process upon the incapacitated person, then the court in which said action or proceeding is pending, may, upon the application of any other party to the action or proceeding, appoint some qualified person to act as guardian ad litem for the incapacitated person in said cause. Laws 1925, ch. 22, § 4; C.S. 1929, § 85-304; 1941 Comp., § 19-614; 1953 Comp., § 21-6-14; Laws 1975, ch. 257, § 8-111.

NMSA 1978, § 38-4-16 Compromise by guardian ad litem

38-4-16. Compromise by guardian ad litem The guardian ad litem so appearing in any action or proceeding for and on behalf of an incapacitated person shall have power to compromise the same and to agree to the judgment to be entered in the action or proceeding for or against the protected person, subject to the approval of the court in which the suit is pending. Laws 1925, ch. 22, § 6; C.S. 1929, § 85-306; 1941 Comp., § 19-616; 1953 Comp., § 21-6-16; Laws 1975, ch. 257, § 8-112; 2009, ch. 159, § 13.

NMSA 1978, § 38-4-17 Costs paid by guardian ad litem

38-4-17. Costs paid by guardian ad litem No person appointed guardian ad litem for an incapacitated person, for the purpose of bringing a suit for or defending a suit against such incapacitated person, shall be liable for the costs of such suit, unless especially charged by the court for some personal misconduct in such case. Laws 1925, ch. 22, § 7; C.S. 1929, § 85-307; 1941 Comp., § 19-617; 1953 Comp., § 21-6-17; Laws 1975, ch. 257, § 8-113.

NMSA 1978, § 38-4-18 Partnerships and corporations may be represented by partner, officer or director in proceedings in magistrate and metropolitan court

38-4-18. Partnerships and corporations may be represented by partner, officer or director in proceedings in magistrate and metropolitan court In any proceeding in the magistrate and metropolitan courts of this state, a partnership or a corporation that is a party may be represented by a partner, officer or director of the partnership or corporation even though the partner, officer or director is not an attorney. Laws 1987, ch. 103, § 1.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18538/index.doFetched: 10/20/2026