Process

NMSA 1978 ch. 38, art. 1

in effect

NMSA 1978, § 38-1-1 Rules of pleading, practice and procedure

38-1-1. Rules of pleading, practice and procedure A. The supreme court of New Mexico shall, by rules promulgated by it from time to time, regulate pleading, practice and procedure in judicial proceedings in all courts of New Mexico for the purpose of simplifying and promoting the speedy determination of litigation upon its merits. Such rules shall not abridge, enlarge or modify the substantive rights of any litigant. B. The supreme court shall cause all rules to be printed and distributed to all members of the bar of the state and to all applicants, and no rule shall become effective until thirty days after it has been so printed and distributed. Laws 1933, ch. 84, § 1; 1941 Comp., § 19-301; 1953 Comp., § 21-3-1; Laws 1966, ch. 28, § 31.

NMSA 1978, § 38-1-2 [Practice statutes may be modified or suspended by rules.]

38-1-2. [Practice statutes may be modified or suspended by rules.] All statutes relating to pleading, practice and procedure, now existing, shall, from and after the passage of this act [38-1-1, 38-1-2 NMSA 1978], have force and effect only as rules of court and shall remain in effect unless and until modified or suspended by rules promulgated pursuant hereto. Laws 1933, ch. 84, § 2; 1941 Comp., § 19-302; 1953 Comp., § 21-3-2.

NMSA 1978, § 38-1-3 [Common law is rule of practice and decision.]

38-1-3. [Common law is rule of practice and decision.] In all the courts in this state the common law as recognized in the United States of America, shall be the rule of practice and decision. Laws 1875-1876, ch. 2, § 2; C.L. 1884, § 1823; C.L. 1897, § 2871; Code 1915, § 1354; C.S. 1929, § 34-101; 1941 Comp., § 19-303; 1953 Comp., § 21-3-3.

NMSA 1978, § 38-1-4 [Equity rules prevail over common law.]

38-1-4. [Equity rules prevail over common law.] Generally in all matters in which there is any conflict or variance between the rules of equity and the rules of the common law, with reference to the same matter, the rules of equity shall prevail. Laws 1897, ch. 73, § 178; C.L. 1897, § 2685 (178); Code 1915, § 4259; C.S. 1929, § 105-1006; 1941 Comp., § 19-304; 1953 Comp., § 21-3-4.

NMSA 1978, § 38-1-5 Service of process; failure to report

38-1-5. Service of process; failure to report A. In case any domestic corporation or any foreign corporation authorized to transact business in this state fails to file a report within the time required, or, in case the agent of any corporation, designated by the corporation as the agent upon whom process against the corporation may be served, dies, resigns or leaves the state, or the agent cannot with due diligence be found, it is lawful, while the default continues, to serve process against the corporation upon the secretary of state, and the service shall be as effective to all intents and purposes as if made upon an officer, director or the registered agent of the corporation. The plaintiff shall include an affidavit that the registered agent has died, resigned, left the state or cannot be found. The plaintiff shall provide, if known, the name upon whom the summons and complaint is to be served and the last known address and include two copies of every paper, including the summons, complaint, attachments and affidavits. B. Within two days after service upon the secretary of state, the secretary shall notify the corporation of service of process by certified or registered mail directed to the corporation at its registered office and enclose a copy of the process or other paper served. C. It is the duty of the plaintiff in any action in which the process is issued to pay to the secretary of state the sum of twenty-five dollars ($25.00), which sum shall be taxed as a part of the taxable costs in the suit if the plaintiff prevails in the suit. D. The secretary of state shall keep a record of all summonses that have been presented for service to the secretary of state, along with a summary of all that occurred in regard to the service of each summons. Laws 1905, ch. 79, § 48 (2); Code 1915, § 933; C.S. 1929, § 32-150; 1941 Comp., § 19-305; 1953 Comp., § 21-3-5; 1993, ch. 184, § 1.

NMSA 1978, § 38-1-5.1 Service of process on limited liability companies; death or removal of registered agent

38-1-5.1. Service of process on limited liability companies; death or removal of registered agent A. In case the agent of any limited liability company or foreign limited liability company registered to transact business in this state, designated by such company as the agent upon whom process against the company may be served, dies, resigns or leaves the state or the agent cannot with due diligence be found, it is lawful, while the circumstances continue, to serve process against the company upon the secretary of state, and the service shall be as effective to all intents and purposes as if made upon any manager of the company. B. Within two days after service upon the secretary of state, the secretary shall notify the company of service of process by certified or registered mail directed to the company at its registered office and enclose a copy of the process or other paper served. It is the duty of the plaintiff in any action in which the process is issued to pay to the secretary of state the sum of twenty-five dollars ($25.00), which shall be taxed as part of the taxable costs in the suit if the plaintiff prevails therein. C. The secretary of state shall keep a record of all summons that have been presented for service to the secretary of state along with a summary of all occurrences with regard to the service of summons. The address of a foreign limited liability company's registered agent, as set forth in its application for registration or most recent amendment thereto, shall constitute such company's registered office for purposes of this section. Laws 1993, ch. 280, § 75.

NMSA 1978, § 38-1-6 Process against foreign corporations

38-1-6. Process against foreign corporations A. In all personal actions brought in any court of this state against any foreign corporation, process may be served upon any officer, director or statutory agent of the corporation, either personally or by leaving a copy of the process at his residence or by leaving a copy at the office or usual place of business of the foreign corporation. B. If no person has been designated by a foreign corporation doing business in this state as its statutory agent upon whom service of process can be made, or, if, upon diligent search, neither the agent so designated nor any of the officers or directors of the foreign corporation can be found in the state, then, upon the filing of an affidavit by the plaintiff to that effect, together with service upon the secretary of state of two copies of the process in the cause, the secretary of state shall accept service of process as the agent of the foreign corporation, but the service is not complete until a fee of twenty-five dollars ($25.00) is paid to the secretary of state by the plaintiff in the action. The plaintiff shall provide, if known, the name of the person upon whom summons and complaint is to be served and the last known address. C. Within two days after receipt of the process and fee, the secretary of state shall give notice by certified or registered mail to the foreign corporation at its principal place of business outside the state of the service of the process. Where the secretary of state has no record of the principal office of the foreign corporation outside the state, he shall forward the copy of the process to the place designated as its principal office in an affidavit filed with the secretary of state by the plaintiff in the suit or by his attorney. D. The foreign corporation served as provided in this section shall appear and answer within thirty days after the secretary of state gives the notice. The certificate of service shall not be issued by the secretary of state until the defendant is served with the summons and complaint. E. The secretary of state shall keep a record of all process served on him as provided for in this section, and of the time of the service and of his action in respect to the service. F. Any foreign corporation engaging in business in this state, either in its corporate name or in the name of an agent, without having first procured a certificate of authority or otherwise become qualified to engage in business in this state shall be deemed to have consented to the provisions of this section. Laws 1905, ch. 79, § 94; Code 1915, § 978; C.S. 1929, § 32-196; Laws 1935, ch. 113, § 1; 1941 Comp., § 19-306; 1953 Comp., § 21-3-6; Laws 1967, ch. 87, § 1; 1993, ch. 184, § 2.

NMSA 1978, § 38-1-6.1 Process against foreign limited liability companies

38-1-6.1. Process against foreign limited liability companies A. In all personal actions brought in any court of this state against any foreign limited liability company, process may be served upon any manager or statutory agent of the company, either personally or by leaving a copy of the process at his residence, or by leaving a copy at the registered office of the foreign limited liability company in this state. B. If no person has been designated by a foreign limited liability company doing business in this state as its statutory agent upon whom service of process can be made, or if upon diligent search neither the agent so designated nor any of the managers of the company can be found in this state, then, upon the filing of an affidavit by the plaintiff to that effect, together with service upon the secretary of state of two copies of the process in the cause, the secretary of state shall accept service of process as the agent of the foreign limited liability company, but the service is not complete until a fee of twenty-five dollars ($25.00) is paid to the secretary of state by the plaintiff in the action. The plaintiff shall provide the name of the person upon whom the summons and complaint is to be served and the last known address. C. Within two days after receipt of the process and fee, the secretary of state shall give notice by certified or registered mail, to the foreign limited liability company at its principal place of business outside this state of the service of the process. Where the secretary of state has no record of the principal place of business of the foreign limited liability company outside this state, he shall forward the copy of the process to the place designated as such company's principal office or as the office required to be maintained in the state or other jurisdiction of its organization in its application for registration to transact business in this state, or the most recent amendment of such application, but if no such application for registration has been filed in this state, to the place designated as such company's principal office in an affidavit filed with the secretary of state by the plaintiff in the suit or by his attorney. D. A foreign limited liability company served as provided in this section shall appear and answer within thirty days after the secretary of state gives the notice. The certificate of service shall not be issued by the secretary of state until the defendant is served with the summons and complaint. E. The secretary of state shall keep a record of all process served on him as provided for in this section, and of the time of the service and of his action in respect to the service. F. Any foreign limited liability company engaging in business in this state, either in its own name or in the name of an agent, without having first applied for registration or otherwise having become qualified to engage in business in this state shall be deemed to have consented to the provisions of this section. Laws 1993, ch. 280, § 76.

NMSA 1978, § 38-1-7 Purpose of act

38-1-7. Purpose of act The purpose of this act [38-1-7 to 38-1-11 NMSA 1978] is to subject certain insurers to the jurisdiction of courts of this state in suits by or on behalf of insureds or beneficiaries under insurance contracts. The legislature declares that it is a subject of concern that many residents of this state hold policies of insurance issued or delivered in this state by insurers while not authorized to do business in this state, thus presenting to such residents the often insuperable obstacle of resorting to distant forums for the purpose of asserting legal rights under such policies. In furtherance of such state interest, the legislature herein provides a method of substituted service of process upon such insurers and declares that in so doing it exercises its power to protect its residents and to define, for the purpose of this statute, what constitutes doing business in this state, and also exercises powers and privileges available to the state by virtue of Public Law 15, 79th Congress of the United States, Chapter 20, 1st Session, S. 340 [59 Stat. 33], which declares that the business of insurance and every person engaged therein shall be subject to the laws of the several states. 1941 Comp., § 19-311, enacted by Laws 1951, ch. 172, § 1; 1953 Comp., § 21-3-7.

NMSA 1978, § 38-1-8 Service of process upon unauthorized insurer

38-1-8. Service of process upon unauthorized insurer A. Any of the following acts in this state, effected by mail or otherwise, by an unauthorized foreign or alien insurer: (1) the issuance or delivery of contracts of insurance to residents of this state or to corporations authorized to do business therein; (2) the solicitation of applications for such contracts; (3) the collection of premiums, membership fees, assessments or other considerations for such contracts; or (4) any other transaction of insurance business, is equivalent to and shall constitute an irrevocable appointment by such insurer, binding upon him, his executor or administrator or successor in interest if a corporation, of the secretary of state to be the true and lawful attorney of such insurer upon whom may be served all lawful process in any action, suit or proceeding in any court by the superintendent of insurance, through the attorney general, and upon whom may be served any notice, order, pleading or process in any proceeding before the superintendent of insurance and which arises out of transacting an insurance business in this state by such insurer, and any such act shall be signification of its agreement that such service of process is of the same legal force and validity as personal service of process in this state upon such insurer. B. Such service of process shall be made by delivering to and leaving with the secretary of state, or some person in charge of his office, two copies thereof and the payment to him of a fee of two dollars ($2.00). The secretary of state shall forthwith mail by registered mail one of the copies of such process to the defendant at his last known principal place of business, and shall keep a record of all process so served upon him. Such service of process is sufficient, provided notice of such service and a copy of the process are sent within ten days thereafter by registered mail by the superintendent of insurance or the attorney general in the court proceeding or by the superintendent of insurance in the administrative proceeding to the defendant at his last known principal place of business, and the defendant's receipt, or receipt issued by the post office with which the letter is registered, showing the name of the sender of the letter and the name and address of the person to whom the letter is addressed, and the affidavit of the superintendent of insurance or the attorney general showing a compliance herewith are filed with the clerk of the court in which such action is pending, or with the superintendent in administrative proceedings, on or before the date the defendant is required to appear, or within such further time as the court may allow. C. Service of process in any such action, suit or proceeding shall, in addition to the manner provided in Subsection B of this section, be valid if served upon any person within this state, who, in this state on behalf of such insurer, is (1) soliciting insurance; (2) making, issuing or delivering any contract of insurance; or (3) collecting or receiving any premium, membership fee, assessment or other consideration for insurance, and a copy of such process is sent within ten days thereafter by registered mail by the superintendent of insurance or the attorney general to the defendant at the last known principal place of business of the defendant, and the defendant's receipt, or the receipt issued by the post office with which the letter is registered, showing the name of the sender of the letter and the name and address of the person to whom the letter is addressed, and the affidavit of the superintendent of insurance or the attorney general showing a compliance herewith are filed with the clerk of the court in which such action is pending, or with the superintendent of insurance in administrative proceedings, on or before the date the defendant is required to appear, or within such further time as the court may allow in the case of court proceedings. D. The superintendent of insurance or the attorney general shall not be entitled to a judgment by default in any court or administrative proceeding under this section until the expiration of thirty days from the date of the filing of the affidavit of compliance. E. Nothing in this section shall limit or abridge the right to serve any process, notice or demand upon any insurer in any other manner now or hereafter permitted by law. 1941 Comp., § 19-312, enacted by Laws 1951, ch. 172, § 2; 1953 Comp., § 21-3-8; Laws 1973, ch. 177, § 1.

NMSA 1978, § 38-1-9 Defense of action by unauthorized insurer

38-1-9. Defense of action by unauthorized insurer A. Before any unauthorized foreign or alien insurer shall file or cause to be filed any pleading in any action, suit or proceeding instituted against it, such unauthorized insurer shall [(1)] deposit with the clerk of the court in which such action, suit or proceeding is pending cash or securities or file with such clerk a bond with good and sufficient sureties, to be approved by the court, in an amount to be fixed by the court sufficient to secure the payment of any final judgment which may be rendered in such action; or (2) procure a certificate of authority to transact the business of insurance in this state. B. The court in any action, suit or proceeding, in which service is made in the manner provided in Subsections [Subsection] B or C of Section 2 [38-1-8 NMSA 1978] may, in its discretion, order such postponement as may be necessary to afford the defendant reasonable opportunity to comply with the provisions of Subsection A of this section and to defend such action. C. Nothing in Subsection A of this section is to be construed to prevent an unauthorized foreign or alien insurer from filing a motion to quash a writ or to set aside service thereof made in the manner provided in Subsections [Subsection] B or C of Section 2 [38-1-8 NMSA 1978] hereof on the ground either (1) that such unauthorized insurer has not done any of the acts enumerated in Subsection A of Section 2 [38-1-8 NMSA 1978], or (2) that the person on whom service was made pursuant to Subsection C of Section 2 [38-1-8 NMSA 1978] was not doing any of the acts therein enumerated. 1941 Comp., § 19-313, enacted by Laws 1951, ch. 172, § 3; 1953 Comp., § 21-3-9.

NMSA 1978, § 38-1-10 Attorney fees

38-1-10. Attorney fees In any action against an unauthorized foreign or alien insurer upon a contract of insurance issued or delivered in this state to a resident thereof or to a corporation authorized to do business therein, if the insurer has failed for thirty days after demand prior to the commencement of the action to make payment in accordance with the terms of the contract, and it appears to the court that such refusal was vexatious and without reasonable cause, the court may allow to the plaintiff a reasonable attorney fee and include such fee in any judgment that may be rendered in such action. Such fee shall not exceed twelve and one-half percent of the amount which the court or jury finds the plaintiff is entitled to recover against the insurer, but in no event shall such fee be less than twenty-five dollars [($25.00)]. Failure of an insurer to defend any such action shall be deemed prima facie evidence that its failure to make payment was vexatious and without reasonable cause. 1941 Comp., § 19-314, enacted by Laws 1951, ch. 172, § 4; 1953 Comp., § 21-3-10.

NMSA 1978, § 38-1-11 Short title

38-1-11. Short title This act [38-1-7 to 38-1-11 NMSA 1978] may be cited as the Unauthorized Insurers Process Act. 1941 Comp., § 19-315, enacted by Laws 1951, ch. 172, § 6; 1953 Comp., § 21-3-11.

NMSA 1978, § 38-1-12 Service against incapacitated

38-1-12. Service against incapacitated Whenever there is a guardian of the estate or a guardian of the person of an incapacitated person, duly appointed by a court of competent jurisdiction of this state, every process against the incapacitated person shall be served upon either of the guardians in the manner as may be provided by law for service of process, including service by publication. Service of process so made shall be considered as proper service upon the protected person. In all other cases, process shall be served upon the protected person in the same manner as upon competent or sane persons. Laws 1935, ch. 60, § 10; 1939, ch. 40, § 1; 1941 Comp., § 19-307; 1953 Comp., § 21-3-12; 2009, ch. 159, § 12.

NMSA 1978, § 38-1-13 [Notice of proceedings occurring prior to service of summons or appearance.]

38-1-13. [Notice of proceedings occurring prior to service of summons or appearance.] Whenever any proceeding is to be had prior to service of summons or appearance, at least five days' notice thereof shall be given, unless otherwise ordered by the court, and it shall be served on the party himself, and proof thereof made in the manner provided for service and return of summons. Laws 1897, ch. 73, § 102; C.L. 1897, § 2685 (102); Code 1915, § 4184; C.S. 1929, § 105-706; 1941 Comp., § 19-308; 1953 Comp., § 21-3-13.

NMSA 1978, § 38-1-14 Notice of lis pendens; contents; recording; effect

38-1-14. Notice of lis pendens; contents; recording; effect In all actions in the district court of this state or in the United States district court for the district of New Mexico affecting the title to real estate in this state, the plaintiff, at the time of filing his petition or complaint, or at any time thereafter before judgment or decree, may record with the county clerk of each county in which the property may be situate a notice of the pendency of the suit containing the names of the parties thereto, the object of the action and the description of the property so affected and concerned, and, if the action is to foreclose a mortgage, the notice shall contain, in addition, the date of the mortgage, the parties thereto and the time and place of recording, and must be recorded five days before judgment, and the pendency of such action shall be only from the time of recording the notice, and shall be constructive notice to a purchaser or encumbrancer of the property concerned; and any person whose conveyance is subsequently recorded shall be considered a subsequent purchaser or encumbrancer and shall be bound by all the proceedings taken after the recording of the notice to the same extent as if he were made a party to the said action. The lis pendens notice need not be acknowledged to entitle it to be recorded. Laws 1873-1874, ch. 19, § 1; C.L. 1884, § 1853; C.L. 1897, § 2902; Code 1915, § 4261; C.S. 1929, § 105-1101; 1941 Comp., § 19-309; 1953 Comp., § 21-3-14; Laws 1959, ch. 160, § 1; 1965, ch. 95, § 1.

NMSA 1978, § 38-1-15 [Pendency of suit; time within which process must be served; cancellation of lis pendens notice.]

38-1-15. [Pendency of suit; time within which process must be served; cancellation of lis pendens notice.] For the purpose of the preceding section [38-1-14 NMSA 1978], it is considered that an action is pending from the time of filing such notice; provided, that such notice shall be of no value, unless it is followed by the service of such citations or process of citation, or by notice by publication to the defendant, as provided by law, within sixty days after such filing. And the court in which said action was commenced, may in its discretion, at any time after the action shall be settled, discontinue or revoke on application of any person injured, and for good cause shown, and under such notice as may be directed or approved by the court, order the notice authorized by the preceding section to be canceled by the county clerk of any county in whose office the same may have been filed, and such cancellation shall be made by an indorsement to that effect upon the filed notice which shall refer to the order. Laws 1873-1874, ch. 19, § 2; C.L. 1884, § 1854; C.L. 1897, § 2903; Code 1915, § 4262; C.S. 1929, § 105-1102; 1941 Comp., § 19-310; 1953 Comp., § 21-3-15.

NMSA 1978, § 38-1-16 Personal service of process outside state

38-1-16. Personal service of process outside state A. Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts enumerated in this subsection thereby submits himself or his personal representative to the jurisdiction of the courts of this state as to any cause of action arising from: (1) the transaction of any business within this state; (2) the operation of a motor vehicle upon the highways of this state; (3) the commission of a tortious act within this state; (4) the contracting to insure any person, property or risk located within this state at the time of contracting; (5) with respect to actions for divorce, separate maintenance or annulment, the circumstance of living in the marital relationship within the state, notwithstanding subsequent departure from the state, as to all obligations arising from alimony, child support or real or personal property settlements under Chapter 40, Article 4 NMSA 1978 if one party to the marital relationship continues to reside in the state. B. Service of process may be made upon any person subject to the jurisdiction of the courts of this state under this section by personally serving the summons upon the defendant outside this state and such service has the same force and effect as though service had been personally made within this state. C. Only causes of action arising from acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction is based upon this section. D. Nothing contained in this section limits or affects the right to serve any process in any other manner now or hereafter provided by law. 1953 Comp., § 21-3-16, enacted by Laws 1959, ch. 153, § 1; 1971, ch. 103, § 1.

NMSA 1978, § 38-1-17 Service of process

38-1-17. Service of process A. In any action in which the state of New Mexico is named as a party defendant, service of process shall be made by serving a copy of the summons and complaint on the governor and on the attorney general. B. In any action in which a branch, agency, bureau, department, commission or institution of the state not specifically authorized by law to be sued is named as a party defendant, service of process shall be made by serving a copy of the summons and complaint on the attorney general and on the head of the branch, agency, bureau, department, commission or institution. C. In any action in which a branch, agency, bureau, department, commission or institution of the state specifically authorized by law to be sued is named a party defendant, service of process shall be made on the head of the branch, agency, bureau, department, commission or institution and on the attorney general. D. In any action in which an officer, official or employee of the state or one of its branches, agencies, bureaus, departments, commissions or institutions is named a party defendant, service of process shall be made on the officer, official or employee and on the attorney general. E. For the purpose of this section: (1) the governor shall be considered as the head of the state and the head of the executive branch of the state; (2) the speaker of the house of representatives or the president pro tempore of the senate shall be considered as the head of the legislative branch of the state; and (3) the chief justice of the supreme court shall be considered as the head of the judicial branch of the state. F. Nothing contained in this section shall be construed as waiving any immunity or as authorizing any action against the state not otherwise specifically authorized by law. G. In garnishment actions, service of writs of garnishment shall be made on the department of finance and administration, on the attorney general and on the head of the branch, agency, bureau, department, commission or institution. A copy of the writ of garnishment shall be delivered by registered or certified mail to the defendant employee. H. Service of process on the governor, attorney general, agency, bureau, department, commission or institution or head thereof shall be made either by handing a copy of the summons and complaint to the head or to his receptionist. Where an executive secretary is employed, he shall be considered as the head. 1953 Comp., § 5-6-22, enacted by Laws 1969, ch. 62, § 1; 1970, ch. 23, § 1.

NMSA 1978, § 38-1-18 Agent for service of process

38-1-18. Agent for service of process Any foreign corporation, foreign bank or foreign real estate trust without being admitted to do business in this state, may loan money in this state only on real estate mortgages, deeds of trust and notes in connection therewith, and take, acquire, hold and enforce the notes, mortgages or deeds of trust given to represent or secure money so loaned or for other lawful consideration. All such notes, mortgages or deeds of trust taken, acquired or held are enforceable as though the foreign corporation, foreign bank or foreign real estate trust were an individual, including the right to acquire the mortgaged property upon foreclosure or under other provisions of the mortgage or deed of trust, and to dispose of the same. Any such corporation, bank or trust except banks and institutions whose shares, certificates or deposit accounts are insured by an agency or corporation of the United States government shall first file with the secretary of state a statement, signed by its president, secretary, treasurer or general manager, that it constitutes the secretary of state its agent for the service of process for cases limited to, and arising out of, such financial transactions, including therein the address of its principal place of business. Upon such service of process, the secretary of state shall forthwith forward all documents by registered or certified mail to the principal place of business of the corporation, bank or trust. Nothing in this section authorizes any such corporation, bank or trust to transact the business of a bank or trust company in this state. 1953 Comp., § 48-23-1, enacted by Laws 1967, ch. 87, § 2; 1969, ch. 98, § 1; 1973, ch. 390, § 7.

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