Magistrate Court; Garnishment

NMSA 1978 ch. 35, art. 12

in effect

NMSA 1978, § 35-12-1 Garnishment; affidavit and bond; grounds

35-12-1. Garnishment; affidavit and bond; grounds A. Garnishment may be issued in advance of judgment in a civil action in the magistrate court only upon the filing of a civil complaint, accompanied by: (1) a bond to the defendant, with sufficient sureties, in double the sum claimed in the complaint, conditioned that the plaintiff will diligently prosecute the action to final judgment without delay, will pay to the defendant all money found due to him in the action and will pay the defendant and the garnishee all damages and costs sustained from the garnishment if no judgment is recovered from the defendant in the action; and (2) an affidavit of the plaintiff that one or more of the following facts exists: (a) the defendant has no property in his possession within this state subject to execution to satisfy the amount claimed in the complaint; or (b) one or more of the grounds for issuance of attachment in the magistrate court, the applicable grounds to be stated in the affidavit. B. Garnishment may be issued in aid of execution of judgment entered in a civil action in the magistrate court only upon the filing in the action of an affidavit of the plaintiff that the defendant has no property in his possession within this state subject to execution to satisfy the judgment. C. Garnishment may be issued in the magistrate court in aid of execution of judgment, which was entered in a civil action in some other court in this state and the unpaid balance of which does not exceed the jurisdictional amount of the magistrate court, only upon the filing of a civil complaint together with a certified copy of the judgment and an affidavit of the plaintiff that the defendant has no property in his possession within this state subject to execution to satisfy the judgment. D. The affidavit under Subsections A through C shall include a statement that the plaintiff believes that a named garnishee: (1) is indebted to the defendant and that the debt is not exempt from garnishment; or (2) holds personal property belonging to the defendant. E. Any magistrate who issues a garnishment in any civil action except in compliance with the provisions of this section is guilty of a petty misdemeanor and shall be removed from office. 1953 Comp., § 36-14-1, enacted by Laws 1968, ch. 62, § 133; 1969, ch. 139, § 3.

NMSA 1978, § 35-12-2 Garnishment; service on garnishee

35-12-2. Garnishment; service on garnishee A. The garnishment shall be served on the garnishee within the magistrate district in the manner provided by law for service of a civil summons in the magistrate court and shall order the garnishee in the action to appear before the magistrate within twenty days from the date of service to answer under oath, as of the date the garnishment was served and also as of the date of the garnishee's answer: (1) what, if anything, the garnishee is indebted to the defendant and on what account; (2) what, if any, personal property of the defendant is in the garnishee's possession; and (3) what other persons, if any, within the garnishee's knowledge are indebted to the defendant or have personal property of the defendant in their possession. B. Return on the garnishment shall be made in the manner provided by law for return on a civil summons in the magistrate court. C. At the same time as the garnishment is served on the garnishee, a copy of the garnishment shall be sent to the defendant's last known address. 1953 Comp., § 36-14-2, enacted by Laws 1968, ch. 62, § 134; 1978 Comp., § 35-12-2; 2023, ch. 104, § 1.

NMSA 1978, § 35-12-3 Garnishment; effect on garnishee

35-12-3. Garnishment; effect on garnishee A. Except as otherwise provided in this section, service of a garnishment on the garnishee has the effect of attaching all personal property, money, wages or salary in excess of the amount exempt under Section 35-12-7 NMSA 1978, rights, credits, bonds, bills, notes, drafts and other choses in action of the defendant in the garnishee's possession or under his control at the time of service of the garnishment or which may come into his possession or under his control or be owing by him between the time of service and the time of making his answer. The garnishee is not liable for any judgment in money on account of any bonds, bills, notes, drafts, checks or other choses in action unless they are converted into money after service of the garnishment or he fails to deliver them to the magistrate within the time prescribed by the magistrate. B. Service of a garnishment issued in advance of judgment does not attach any wages or salary due the defendant from the garnishee. C. After service of a garnishment on the garnishee, it is unlawful for the garnishee to pay to the defendant in the action any debt or to deliver to him any personal property attached by the garnishment. 1953 Comp., § 36-14-3, enacted by Laws 1968, ch. 62, § 135; 1969, ch. 139, § 4.

NMSA 1978, § 35-12-4 Garnishment; answer by garnishee

35-12-4. Garnishment; answer by garnishee A. If the garnishee answers under oath that he is not at the time of answer, and was not, at the time the garnishment was served on him, indebted to the defendant or in possession of any personal property of the defendant, and if the garnishee's answer is not controverted within twenty days after being made, the magistrate shall enter judgment discharging the garnishee. B. If the garnishee fails to answer the garnishment under oath within twenty days from the date of its service on him, the magistrate may render judgment by default against the garnishee for the full amount of any judgment rendered against the defendant, together with all interest and costs. C. If the garnishee answers under oath or it appears on trial of the issue that he was, at the time of answer or at the time the garnishment was served, indebted to the defendant or in possession of any personal property of the defendant, the magistrate shall render judgment for the plaintiff against the garnishee for the amount admitted or found due to the defendant or so much thereof as equals the plaintiff's judgment against the defendant. If the garnishee is indebted to the defendant for wages or salary, the magistrate shall render judgment for the plaintiff against the garnishee only for the amount of wages or salary due the defendant in excess of the amount of wages or salary exempt from garnishment under Section 35-12-7 NMSA 1978 or so much thereof as equals the plaintiff's judgment against the defendant. The magistrate shall order the garnishee to deliver any personal property to the sheriff to be held by him subject to the order of the magistrate for the satisfaction of any judgment that may be rendered against the defendant. If the garnishee fails to deliver the personal property to the sheriff, the sheriff shall notify the magistrate, and, upon motion of the plaintiff, the garnishee shall be cited for contempt. If the garnishee fails to show good cause in the contempt hearing, he shall be punished for contempt, and the magistrate may render judgment against him for the full amount of the plaintiff's judgment against the defendant, together with all interest and costs. D. If the defendant is employed by the garnishee, the magistrate shall render judgment for the plaintiff against the garnishee for the unpaid balance of the plaintiff's judgment against the defendant and order the garnishee to pay to the plaintiff each pay period the defendant's wages or salary, which are not exempt from garnishment under Section 35-12-7 NMSA 1978 and which come due subsequent to the time of answer, until the judgment is satisfied, or, if the employment relationship is terminated, until the garnishee gives the plaintiff written notice that the employment relationslhip [relationship] has terminated. 1953 Comp., § 36-14-4, enacted by Laws 1968, ch. 62, § 136; 1969, ch. 139, § 5.

NMSA 1978, § 35-12-5 Garnishment; controverting garnishee's answer

35-12-5. Garnishment; controverting garnishee's answer A. If the plaintiff or defendant is not satisfied with the answer of any garnishee, he may controvert it by stating how he believes it is incorrect, and the issue shall be tried and determined by the magistrate court. B. Any person claiming personal property, money or any chose in action garnished may intervene in the action, and no judgment shall be rendered against the garnishee until the intervention is tried and determined by the magistrate court. 1953 Comp., § 36-14-5, enacted by Laws 1968, ch. 62, § 137.

NMSA 1978, § 35-12-6 Garnishment; unmatured debts

35-12-6. Garnishment; unmatured debts Debts not yet due to the defendant may be garnished, but no execution shall be awarded against the garnishee for such debts until they become due. The magistrate may order the defendant to deliver the evidence of such indebtedness to the court. If the defendant alleges an endorsement or delivery of the evidence before the court's order came to his knowledge, the court may inquire into the consideration and good faith of the transfer and, if the court determines that the endorsee or transferee holds by fraudulent endorsement or delivery, it may order delivery of the evidence to the court. When any evidence of indebtedness is delivered to the court under this section, the court shall notify any endorsers of its nonpayment at maturity, and the garnishment proceedings shall remain open until it becomes due. 1953 Comp., § 36-14-6, enacted by Laws 1968, ch. 62, § 138.

NMSA 1978, § 35-12-7 Garnishment; exemptions

35-12-7. Garnishment; exemptions A. Exempt from garnishment with respect to the enforcement of an order or decree for child support is fifty percent of the defendant's disposable earnings for any pay period. Exempt from garnishment in all other situations is the greater of the following portions of the defendant's disposable earnings: (1) seventy-five percent of the defendant's disposable earnings for any pay period; or (2) an amount each week equal to forty times the highest applicable minimum hourly wage rate at the place the wages were earned. The director of the financial institutions division of the regulation and licensing department shall provide a table giving equivalent exemptions for pay periods of other than one week. B. As used in this section: (1) "disposable earnings" means that part of a defendant's wage or salary remaining after deducting the amounts that are required by law to be withheld; and (2) "highest applicable minimum hourly wage rate" means the highest federal, state or local minimum hourly wage rate for an eight-hour day and a forty-hour week applicable at the time the wages are payable. However, it is immaterial whether the garnishee is exempt under federal, state or local law from paying the highest applicable minimum hourly wage rate. C. The maximum amount that may be taken from a spouse's disposable earnings under both the garnishment procedure and the wage deduction procedure for the enforcement of child support is fifty percent of the spouse's disposable earnings. D. Amounts exempt under this section shall retain their exempt status when deposited into a personal bank account, provided that they are reasonably traceable. 1953 Comp., § 36-14-7, enacted by Laws 1969, ch. 139, § 6; 1978 Comp., § 35-12-7; 1979, ch. 254, § 1; 2023, ch. 104, § 2.

NMSA 1978, § 35-12-8 Garnishment; payment of exempt wages and salary

35-12-8. Garnishment; payment of exempt wages and salary Any employer charged as a garnishee in any civil action in the magistrate court shall pay to the defendant, when due, the amount of his wages or salary exempt from garnishment under Section 35-12-7 NMSA 1978. 1953 Comp., § 36-14-7.1, enacted by Laws 1969, ch. 139, § 7.

NMSA 1978, § 35-12-9 Garnishment; wages and salary; lien; priority

35-12-9. Garnishment; wages and salary; lien; priority A. A judgment entered against a garnishee under Section 35-12-4D NMSA 1978 is a lien on the defendant's wages or salary, which are not exempt from garnishment under Section 35-12-7 NMSA 1978 and which come due subsequent to the time of answer, until the judgment against the garnishee is paid or until the employment relationship is terminated. B. If the defendant's wages or salary are subject to more than one judgment lien, the liens shall be satisfied in the order in which the garnishment is served on the garnishee. 1953 Comp., § 36-14-7.2, enacted by Laws 1969, ch. 139, § 8.

NMSA 1978, § 35-12-10 Garnishment; public officer as garnishee

35-12-10. Garnishment; public officer as garnishee A. No public officer of the state or any of its political subdivisions shall be summoned in his official capacity as a garnishee in a civil action in the magistrate court to answer for wages or salaries due to a public officer or employee unless the plaintiff has a judgment in the action against the defendant. Under this condition, wages and salaries due public officials and employees are subject to garnishment. B. This section does not prevent any available claim of exemption from garnishment. C. As provided in this section, when any public officer is summoned as garnishee in a civil action in the magistrate court, his answer shall be by statement over his official signature of the amount due the defendant and the statement shall be filed in the action without cost. 1953 Comp., § 36-14-8, enacted by Laws 1968, ch. 62, § 140.

NMSA 1978, § 35-12-11 Garnishment; execution against garnishee

35-12-11. Garnishment; execution against garnishee Whenever judgment is rendered against the garnishee in any civil action in the magistrate court, execution shall be made as provided by law for executions in other civil actions in the magistrate court. 1953 Comp., § 36-14-9, enacted by Laws 1968, ch. 62, § 141.

NMSA 1978, § 35-12-12 Garnishment; defense to claim against garnishee

35-12-12. Garnishment; defense to claim against garnishee In any action by a defendant against a garnishee based on any indebtedness of the garnishee or on possession of any personal property, it is a conclusive defense for the garnishee to show that the indebtedness was paid or the personal property delivered under judgment of the magistrate court in a garnishment proceeding. 1953 Comp., § 36-14-10, enacted by Laws 1968, ch. 62, § 142.

NMSA 1978, § 35-12-13 Garnishment; dissolution

35-12-13. Garnishment; dissolution A. At any time before judgment in a civil action in the magistrate court in which a garnishment has been issued, the defendant in the action may obtain a dissolution of the garnishment by filing in the action a bond to the plaintiff in double the sum claimed in the complaint, or double the value of the indebtedness and personal property garnished, whichever is less, with sufficient sureties, conditioned for the payment of any judgment that may be rendered against the garnishee in the action. B. When a garnishment is dissolved, all proceedings touching the garnished indebtedness or personal property are vacated. 1953 Comp., § 36-14-11, enacted by Laws 1968, ch. 62, § 143.

NMSA 1978, § 35-12-14 Garnishment; suit on bond

35-12-14. Garnishment; suit on bond The bond given by the plaintiff or other person in a garnishment proceeding 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., § 36-14-12, enacted by Laws 1968, ch. 62, § 144.

NMSA 1978, § 35-12-15 Garnishment; special provisions

35-12-15. Garnishment; special provisions All laws and procedures governing magistrate courts apply to garnishment proceedings in the magistrate court except as otherwise provided by law. 1953 Comp., § 36-14-13, enacted by Laws 1968, ch. 62, § 145.

NMSA 1978, § 35-12-16 Garnishment; costs; attorney fees

35-12-16. Garnishment; costs; attorney fees A. If the plaintiff prevails in a garnishment proceeding, he may be awarded either one or both of the following: (1) the actual costs of the proceeding, not exceeding ten percent of the judgment entered against the garnishee; or (2) a reasonable attorney fee not exceeding ten percent of the judgment entered against the garnishee. B. If the garnishee answers as required by law, the court shall award the garnishee his actual costs and a reasonable attorney fee. The award shall be against the defendant if the plaintiff prevails and against the plaintiff if the garnishee prevails. 1953 Comp., § 36-14-13.1, enacted by Laws 1977, ch. 84, § 1.

NMSA 1978, § 35-12-17 Garnishment; form of bond

35-12-17. Garnishment; form of bond Garnishment 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 (Name), Garnishee)) GARNISHMENT BOND "STATE OF NEW MEXICO ____________ MAGISTRATE DISTRICT, DIVISION _______ (Name), Plaintiff )) v. ) CIVIL DOCKET NO. ________ (Name), Defendant (Name), Garnishee )) GARNISHMENT 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 and costs that may accrue to the defendant and the garnishee by reason of the garnishment or any process or judgment thereon, upon completion of which this obligation is void. ______________________________ Plaintiff (Principal) ______________________________ Surety ______________________________ Surety ______________________________ Plaintiff (Principal) ______________________________ Surety ______________________________ Surety Approved _____________, 19 ___ __________________________________ Magistrate" 1953 Comp., § 36-14-14, enacted by Laws 1968, ch. 62, § 146.

NMSA 1978, § 35-12-18 Garnishment; form of writ

35-12-18. Garnishment; form of writ Writs of garnishment in civil actions in the magistrate court shall state whether the writ is issued in advance of or in aid of execution of judgment and shall be in substantially the following form: "STATE OF NEW MEXICO __________________MAGISTRATE DISTRICT, DIVISION ________ (Name), Plaintiff)) v.) CIVIL DOCKET NO. ___________) (Name), Defendant)) (Name), Garnishee) WRIT OF GARNISHMENT "STATE OF NEW MEXICO __________________MAGISTRATE DISTRICT, DIVISION ________ (Name), Plaintiff ) ) v. ) CIVIL DOCKET NO. ___________ ) (Name), Defendant ) ) (Name), Garnishee ) WRIT OF GARNISHMENT THE STATE OF NEW MEXICO to the above-named garnishee: You are ordered to appear before the magistrate court located at _______________________ within twenty days from the service of this writ upon you to answer under oath the following questions, as of the date of service and as of the date of your answer: 1. What, if anything, are you indebted to the defendant in this action and on what account? 2. What, if any, personal property of the defendant is in your possession or under your control? 3. What other persons, if any, within your knowledge are indebted to the defendant or have personal property of the defendant in their possession? Service of this writ upon you has the effect of attaching all nonexempt personal property, money, rights, credits, bonds, bills, notes, drafts and other choses in action of the defendant in your possession or under your control at the time of service and that may come into your possession or under your control or be owing by you between the time of service and the time of making your answer. This writ was issued in (advance) (aid of execution) of judgment against the defendant. If this writ was issued in advance of judgment, it does not attach any wages or salary due from you to the defendant. If this writ was issued in aid of execution of judgment, it attaches wages or salary due from you to the defendant in excess of the greater of the following portions of the defendant's disposable earnings: A. seventy-five percent of the defendant's disposable earnings for any pay period; or B. an amount each week equal to forty times the highest applicable minimum hourly wage rate at the place the wages were earned. A table giving equivalent exemptions for pay periods of other than one week may be obtained from the director of the financial institutions division of the regulation and licensing department. "Disposable earnings" means that part of the defendant's wage or salary remaining after deducting the amounts that are required by law to be withheld. "Highest applicable minimum hourly wage rate" means the highest federal, state or local minimum hourly wage rate for an eight-hour day or a forty-hour week. It is immaterial whether you are exempt under federal, state or local law from paying the highest applicable minimum hourly wage rate. FINANCIAL INSTITUTION WRITS If you are a financial institution, the defendant who is an individual or sole proprietor has an exemption totaling two thousand four hundred dollars ($2,400) in depository and investment accounts. This writ attaches only to money in excess of two thousand four hundred dollars ($2,400). You may rely on the representations of the person executing this writ as to whether the exemption amount has already been satisfied with other accounts held by other financial institutions. This provision shall not prevent the individual or sole proprietor from claiming that additional money in depository or investment accounts is exempt under any other available exemption provided by law. Any wages you owe the employee in excess of two thousand four hundred dollars ($2,400) or that you may come to owe the employee in excess of that amount must be kept by you until further order of this court. This means that you shall not pay the non-exempt amounts to the plaintiff until further order from this court requiring payment. It is unlawful to pay or deliver to the defendant any item attached by this writ. If you fail to appear and answer as directed, or if you unlawfully dispose of any item attached by this writ, judgment may be rendered against you for the full amount of the plaintiff's claim against the defendant in this action. Dated _______________, 20 ___________________________ Magistrate". Dated _______________, 20 ___________________________ Magistrate". 1953 Comp., § 36-14-15, enacted by Laws 1968, ch. 62, § 147; 1969, ch. 139, § 9; 1978 Comp., § 35-12-18; 2023, ch. 104, § 3.

NMSA 1978, § 35-12-19 Garnishment; district court; magistrate court; small claims court

35-12-19. Garnishment; district court; magistrate court; small claims court Garnishment may be issued in the district court, magistrate court or small claims court. Sections 35-12-1 through 35-12-18 NMSA 1978 apply to the issuance of garnishment in the district court, magistrate court or small claims court; provided, however, that in the event the district court has jurisdiction, the district court clerk may issue the writ of garnishment. In those cases filed in small claims court, the small claims court may issue the writ of garnishment. 1953 Comp., § 36-14-16, enacted by Laws 1969, ch. 139, § 10; 1973, ch. 24, § 1; 1979, ch. 183, § 1.

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