Mandamus

NMSA 1978 ch. 44, art. 2

in effect

NMSA 1978, § 44-2-1 [Regulation of mandamus.]

44-2-1. [Regulation of mandamus.] The writ of mandamus is regulated as in this chapter prescribed. Laws 1884, ch. 1, § 37; C.L. 1884, § 1992; C.L. 1897, § 2760; Code 1915, § 3411; C.S. 1929, § 86-101; 1941 Comp., § 26-101; 1953 Comp., § 22-12-1.

NMSA 1978, § 44-2-2 [District courts open at all times for issuance of writs.]

44-2-2. [District courts open at all times for issuance of writs.] For the purpose of hearing application for, and issuing writs of mandamus, the district courts shall be regarded as open at all times, wherever the judge of such court may be within the state. Laws 1884, ch. 1, § 50; C.L. 1884, § 2005; C.L. 1897, § 2774; Code 1915, § 3412; C.S. 1929, § 86-102; 1941 Comp., § 26-102; 1953 Comp., § 22-12-2.

NMSA 1978, § 44-2-3 [Exclusive original jurisdiction; district and supreme courts.]

44-2-3. [Exclusive original jurisdiction; district and supreme courts.] The district court has exclusive original jurisdiction in all cases of mandamus, except where such writ is to be directed to a district court or a judge thereof in his official capacity, in which case the supreme court has exclusive original jurisdiction, and in such cases the supreme court or a judge thereof shall first make a rule, returnable in term, that such district court or judge thereof, show cause before the court why a peremptory writ of mandamus should not issue, and upon the return day of such rule such district court or judge may show cause against the rule by affidavit or record, evidence, and upon the hearing thereof, the supreme court shall award a peremptory writ, or dismiss the rule. In case of emergency, a judge of the supreme court, at the time of making the rule to show cause, may also appoint a special term of the court for hearing the motion, and at which the rule shall be made returnable. Laws 1884, ch. 1, § 48; C.L. 1884, § 2003; C.L. 1897, § 2771; Code 1915, § 3423; C.S. 1929, § 86-113; 1941 Comp., § 26-103; 1953 Comp., § 22-12-3.

NMSA 1978, § 44-2-4 [Purpose of writ; judicial discretion not controlled.]

44-2-4. [Purpose of writ; judicial discretion not controlled.] It may be issued to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station; but though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion. Laws 1884, ch. 1, § 38; C.L. 1884, § 1993; C.L. 1897, § 2761; Code 1915, § 3413; C.S. 1929, § 86-103; 1941 Comp., § 26-104; 1953 Comp., § 22-12-4.

NMSA 1978, § 44-2-5 [Adequate remedy at law; writ will not issue; who may obtain writ.]

44-2-5. [Adequate remedy at law; writ will not issue; who may obtain writ.] The writ shall not issue in any case where there is a plain, speedy and adequate remedy in the ordinary course of law. It shall issue on the information of the party beneficially interested. Laws 1884, ch. 1, § 39; C.L. 1884, § 1994; C.L. 1897, § 2762; Code 1915, § 3414; C.S. 1929, § 86-104; 1941 Comp., § 26-105; 1953 Comp., § 22-12-5.

NMSA 1978, § 44-2-6 [Contents of writ.]

44-2-6. [Contents of writ.] The writ is either alternative or peremptory. The alternative writ shall state concisely the facts showing the obligation of the defendant to perform the act, and his omission to perform it, and command him, that immediately after the receipt of the writ, or at some other specified time, he do the act required to be performed, or show cause before the court out of which the writ issued, at a specified time and place, why he has not done so; and that he then and there return the writ with his certificate of having done as he is commanded. The peremptory writ shall be in a similar form, except that the words requiring the defendant to show cause why he has not done as commanded, shall be omitted. Laws 1884, ch. 1, § 40; C.L. 1884, § 1995; C.L. 1897, § 2763; Code 1915, § 3415; C.S. 1929, § 86-105; 1941 Comp., § 26-106; 1953 Comp., § 22-12-6.

NMSA 1978, § 44-2-7 [When peremptory or alternative writs issued.]

44-2-7. [When peremptory or alternative writs issued.] When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptory mandamus may be allowed in the first instance; in all other cases the alternative writ shall be first issued. Laws 1884, ch. 1, § 41; C.L. 1884, § 1996; C.L. 1897, § 2764; Code 1915, § 3416; C.S. 1929, § 86-106; 1941 Comp., § 26-107; 1953 Comp., § 22-12-7.

NMSA 1978, § 44-2-8 [Allowance of writ; return day; service.]

44-2-8. [Allowance of writ; return day; service.] The court or judge, by an indorsement on the writ, shall allow the same, designate the return day thereof and direct the manner of service. Laws 1884, ch. 1, § 42; C.L. 1884, § 1997; C.L. 1897, § 2765; Code 1915, § 3417; C.S. 1929, § 86-107; 1941 Comp., § 26-108; 1953 Comp., § 22-12-8.

NMSA 1978, § 44-2-9 [Answer to writ.]

44-2-9. [Answer to writ.] On the return day of the alternative writ, or such further day as the court allows, the party on whom the writ is served may show cause by answer, made in the same manner as an answer to a complaint in civil action. Laws 1884, ch. 1, § 43; C.L. 1884, § 1998; C.L. 1897, § 2766; Code 1915, § 3418; C.S. 1929, § 86-108; 1941 Comp., § 26-109; 1953 Comp., § 22-12-9.

NMSA 1978, § 44-2-10 [Peremptory mandamus on failure to answer; procedure after answer.]

44-2-10. [Peremptory mandamus on failure to answer; procedure after answer.] If no answer is made a peremptory mandamus shall be allowed against the defendant; if an answer is made containing new matter, the plaintiff may, on the trial or other proceedings, avail himself of any valid objection to its sufficiency, or may countervail it by evidence either in direct denial or by way of avoidance. Laws 1884, ch. 1, § 44; C.L. 1884, § 1999; C.L. 1897, § 2767; Code 1915, § 3419; C.S. 1929, § 86-109; 1941 Comp., § 26-110; 1953 Comp., § 22-12-10.

NMSA 1978, § 44-2-11 [Pleadings allowed; proceedings as in civil actions.]

44-2-11. [Pleadings allowed; proceedings as in civil actions.] No other pleading or written allegation is allowed than the writ and answer. They shall be construed and amended in the same manner as pleadings in a civil action, and the issues thereby joined shall be tried and further proceedings had in the same manner as in a civil action. Laws 1884, ch. 1, § 45; C.L. 1884, § 2000; C.L. 1897, § 2768; Code 1915, § 3420; C.S. 1929, § 86-110; 1941 Comp., § 26-111; 1953 Comp., § 22-12-11.

NMSA 1978, § 44-2-12 [Judgment for plaintiff; damages; costs; peremptory writ.]

44-2-12. [Judgment for plaintiff; damages; costs; peremptory writ.] If judgment is given for the plaintiff, he shall recover the damages which he has sustained, together with costs and disbursements, and a peremptory mandamus shall be awarded without delay. Section 44-2-13 Officer or board refusing to perform duty; fine; other action for penalty barred. 44-2-14 Review of proceedings.Paz v. Tijerina, 2007-NMCA-109, 142 N.M. 391, 165 P.3d 1167. Laws 1884, ch. 1, § 46; C.L. 1884, § 2001; C.L. 1897, § 2769; Code 1915, § 3421; C.S. 1929, § 86-111; 1941 Comp., § 26-112; 1953 Comp., § 22-12-12.

NMSA 1978, § 44-2-13 [Officer or board refusing to perform duty; fine; other action for penalty barred.]

44-2-13. [Officer or board refusing to perform duty; fine; other action for penalty barred.] Whenever a peremptory mandamus is directed to a public officer, body or board, commanding the performance of any public duty specially enjoined by law, if it appears to the court that such officer or any member of such body or board, without just excuse, refuses or neglects to perform the duty so enjoined, the court may impose a fine not exceeding two hundred and fifty dollars [($250)] upon every such officer or member of such body or board; such fine, when collected, shall be paid into the state treasury, and the payment of such fine is a bar to an action for any penalty incurred by such officer or member of such body or board, by reason of his refusal or neglect to perform the duty so enjoined. Laws 1884, ch. 1, § 47; C.L. 1884, § 2002; C.L. 1897, § 2770; Code 1915, § 3422; C.S. 1929, § 86-112; 1941 Comp., § 26-113; 1953 Comp., § 22-12-13.

NMSA 1978, § 44-2-14 [Review of proceedings.]

44-2-14. [Review of proceedings.] That in all cases of proceedings by mandamus in any district court of this state, the final judgment of the court thereon shall be reviewable by appeal or writ of error in the same manner as now provided by law in other civil cases. Laws 1887, ch. 60, § 1; C.L. 1897, § 2773; Laws 1899, ch. 80, § 8; Code 1915, § 3424; C.S. 1929, § 86-114; 1941 Comp., § 26-114; 1953 Comp., § 22-12-14.

Source: New Mexico Compilation Commission (nmonesource.com)URL: https://nmonesource.com/nmos/nmsa-unanno/en/item/18545/index.doFetched: 10/20/2026