Chapter 42 — Chapter 42

A decree quieting title against the state is effective only against a claim, interest or lien of the state that has been set forth in the pleading served upon the state with sufficient factual detail to give the state reasonable notice of the basis of the claim, interest or lien …

The plaintiff must file his complaint in the district court, setting forth the nature and extent of his estate and describing the premises as accurately as may be, and averring that he is credibly informed and believes that the defendant makes some claim adverse to the estate of …

Whenever any number of persons, more than ten, hold or claim the title to any tract of land as tenants in common, coclaimants, joint tenants or coparceners holding and claiming such land by adverse possession or otherwise they may elect or appoint a committee from their number wh…

The committee so appointed may make and execute all contracts which they deem necessary or requisite for the commencement and prosecution of said action and the same shall be binding upon all the persons who participate in the selection or appointment of said committee. History: …

appointment; persons not appointing committee made defendants; unknown claimants.] The appointment of such committee may be by an instrument or instruments in writing, executed by the persons so holding or claiming such title and acknowledged as provided by law for acknowledgment…

Any two or more persons claiming any estate or interest in lands under a common source of title, whether holding as tenants in common, joint tenants, coparceners or in severalty, may unite in an action against any person or persons claiming an adverse estate or interest therein, …

If the defendant, or any of them, shall appear and disclaim all right and title adverse to the plaintiff, he shall recover his costs, and in all other cases the costs shall be in the discretion of the court. If the defendant or any one of them fails to appear and answer, the cour…

For the purposes of this article and for all other purposes, mines shall be deemed and taken to be real estate. History: C.L. 1897, § 2685 (277), added by Laws 1907, ch. 107, § 1 (277); Code 1915, § 4395; C.S. 1929, § 105-2009; 1941 Comp., § 25-1308; 1953 Comp., § 22-14-8.

The action contemplated by this article shall be conducted as other actions, by equitable proceedings under the rules of chancery. History: C.L. 1897, § 2685 (276), added by Laws 1907, ch. 107, § 1 (276); Code 1915, § 4394; C.S. 1929, § 105-2008; 1941 Comp., § 25-1309; 1953 Comp.…

An action to compel the specific performance of a contract of sale of real estate may be brought in the county where the defendants or any of them reside; but if any of the defendants are nonresidents of the state, it shall be brought in the county where the real estate or some p…

Service by publication may be had in all actions brought under Section 1 [42-7-1 NMSA 1978] of this act when it is made to appear by affidavit that any defendant is a nonresident of the state. History: Laws 1933, ch. 9, § 2; 1941 Comp., § 25-1602; 1953 Comp., § 22-18-2.

Before service can be made by publication an affidavit must be filed in the action showing the cause to be one for the specific performance of a contract for the sale of real estate, and that the defendant to be served with process is a nonresident of the state, and it being show…

Whenever in an action under the provisions of this act [42-7-1 to 42-7-4 NMSA 1978] a decree of specific performance is made it shall act upon the land itself and the court may compel a conveyance of the real estate by attachment or appoint a commission to make the conveyance. Hi…

Any person having a right to the immediate possession of any goods or chattels, wrongfully taken or wrongfully detained, may bring an action of replevin for the recovery thereof and for damages sustained by reason of the unjust caption or detention thereof. History: C.L. 1897, § …

The writ shall be executed by delivering the goods and chattels in the complaint mentioned, to the plaintiff, and by summoning the defendant to appear on the return day of the writ, to answer the action of the plaintiff. History: C.L. 1897, § 2685 (237), added by Laws 1907, ch. 1…

damages; option of defendant.] In case the plaintiff fails to prosecute his suit with effect and without delay judgment shall be given for the defendant and shall be entered against the plaintiff and his securities for the value of the property taken, and double damages for the u…

If such property be not returned and accepted within thirty days after the judgment, the sheriff shall collect the assessed value thereof from the plaintiff and his securities as on other executions. History: C.L. 1897, § 2685 (240), added by Laws 1907, ch. 107, § 1 (240); Code 1…

Any officer damnified by the execution of a writ of replevin may maintain an action therefor on the bond by him taken. History: C.L. 1897, § 2685 (241), added by Laws 1907, ch. 107, § 1 (241); Code 1915, § 4352; C.S. 1929, § 105-1713; 1941 Comp., § 25-1514; 1953 Comp., § 22-17-14…

The defendant may, for any violation of the bond, bring an action thereon in the name of the officer for his use. History: C.L. 1897, § 2685 (242), added by Laws 1907, ch. 107, § 1 (242); Code 1915, § 4353; C.S. 1929, § 105-1714; 1941 Comp., § 25-1515; 1953 Comp., § 22-17-15.

plaintiff.] The sheriff for failing to take bond, or for taking insufficient bond from the plaintiff, shall be responsible on his official bond for all damages sustained thereby, recoverable by action in the name of the party injured. History: C.L. 1897, § 2685 (243), added by La…

Affidavits for writs of replevin shall be in substantially the following form: "STATE OF NEW MEXICO COUNTY OF ____________________________ (Name), Plaintiff ) ) v. ) CIVIL DOCKET NO. ________ (Name), Defendant ) ) AFFIDAVIT IN REPLEVIN I, (plaintiff or attorney), being duly sworn…

Replevin bonds shall be in substantially the following form: "STATE OF NEW MEXICO COUNTY OF ____________________________ (Name), Plaintiff ) ) v. ) CIVIL DOCKET NO. ________ (Name), Defendant ) ) REPLEVIN BOND We bind ourselves, our heirs, executors and administrators to the stat…

The judge of the district court shall, upon the filing of the affidavit and bond in conformity with Sections 42-8-5 and 42-8-6 NMSA 1978, the bond to have sufficient surety approved by the judge, issue the writs of replevin applied for by the complainant directed to the sheriff o…

A. Upon the defendant's motion before trial, the district court shall determine the truth of the facts stated in the plaintiff's affidavit at a hearing, to be held without delay. If the plaintiff fails to prove the truth of the facts stated, the writ shall be dissolved, the plain…

No cross-replevin or replevin for property in the hands of an officer shall be brought, except as herein provided. History: C.L. 1897, § 2685 (229), added by Laws 1907, ch. 107, § 1 (229); Code 1915, § 4341; C.S. 1929, § 105-1702; 1941 Comp., § 25-1502; 1953 Comp., § 22-17-2.

The district court clerk shall docket the action in replevin and the cause shall then proceed as in other civil actions. History: 1953 Comp., § 22-17-19, enacted by Laws 1965, ch. 268, § 3.

bond; time; parties; condition.] The defendant, either in person or by his agent or attorney, at any time within five days after the service of a writ of replevin on him, and the replevin of the property thereunder, may require the return of the property replevied upon giving to …

court; additional security; sheriff's liability.] The sheriff shall judge of the sufficiency of the sureties on the bond of the defendant, and shall return the same with the writ of replevin into the district court; and shall be responsible on his official bond on returning any p…

third party may intervene and give forthcoming bond.] Whenever the property, goods or chattels of any person not a party to the record are wrongfully seized by any officer under or by virtue of any writ of execution, mesne or other process from any court, except under a writ of r…

Suits of replevin may be commenced and carried to a conclusion against any incorporated company in this state in all cases that may be begun and carried against any ordinary defendants. History: C.L. 1897, § 2685 (231), added by Laws 1907, ch. 107, § 1 (231); Code 1915, § 4343; C…

Before the writ of replevin is issued, the plaintiff or some creditable person in his stead shall file in the district court an affidavit stating: A. that the plaintiff is lawfully entitled to the possession of the property mentioned in the complaint; B. that the same was wrongfu…

The plaintiff shall before the execution of the writ enter into bond with sufficient sureties, to the officer to whom the writ is directed, in double the value of the property, conditioned on the prosecution of the suit with effect and without delay and that he will without delay…

value of property or its return.] That if in any suit for replevin of property the plaintiff shall allege in his complaint a demand upon the defendant for the return of the property and a reasonable opportunity to comply therewith, and that he waives seizure and delivery thereof,…

Any person plaintiff or defendant in any replevin suits pending in any court in this state, may at any time before judgment, after reasonable notice to the person by whom any bond has been given in any such suit, move the court for additional security on the part of any such prin…

Whenever any writ of replevin is granted against the sheriff of any county in this state, the judge of the district court shall designate a person to serve process on the defendant. History: C.L. 1897, § 2685 (235), added by Laws 1907, ch. 107, § 1 (235); Code 1915, § 4347; C.S. …

Creditors may sue their debtors before justices of the peace [magistrates] or in the district courts, by attachment, in the following cases, to wit: A. when the debtor is not a resident of, nor resides in this state; B. when the debtor has concealed himself, or absconded or absen…

The clerk shall judge of the sufficiency of the penalty and the security in the bond; if they be approved, he shall endorse his approval thereon, and the same, together with the affidavits and complaint or other lawful statement of the cause of action, shall be filed before an at…

The bond given by the plaintiff or other person in a suit by attachment may be sued on by any party injured in the name of the state, and [he] shall proceed as in ordinary suits, and shall recover such damages as he may sustain. History: C.L. 1897, § 2685 (189), added by Laws 190…

Any person, plaintiff or defendant, in any attachment suits pending in any court in this state, may, at any time before judgment, after reasonable notice to the person by whom any bond has been given in any such suit, move the court for additional security on the part of any such…

Original writs of attachment shall be directed to the sheriff of the proper county, commanding him to attach the defendant, by all and singular, his lands and tenements, goods, moneys, effects, credits and all other property and interests in property of whatsoever nature and kind…

writs; proceeding in conversion when replevin writ not executed.] That where an original writ of attachment or replevin has been quashed for defect in the affidavit, bond or writ, the court shall allow an amendment thereof to cure the defect, under such circumstances as amendment…

Original writs of attachment shall be issued and returned in like manner as ordinary writs of summons; and when the defendant is cited to answer the action, like proceedings shall be had between him and the plaintiff as in ordinary actions on contracts, and a general judgment may…

replevin.] All executions, writs of attachment and writs of replevin shall be returned within sixty days from the date of the delivery thereof to the sheriff or other officer or person whose duty it is, or who may be designated to serve the same. History: Laws 1897, ch. 73, § 176…

garnishment of inaccessible property.] The manner of serving writs of attachement [attachment] shall be as follows: A. the writ or other lawful statement of the cause of action, shall be served on the defendant as an ordinary summons; B. when lands or tenements or interests or es…

Whenever property of a defendant has been attached and it shall appear from the affidavit for attachment and the return of the sheriff, that such defendant cannot be personally served with process, the court shall order a publication to be made stating the nature and amount of th…

When the defendant shall be notified, by publication as aforesaid, and shall not appear and answer the action, judgment by default may be entered, which may be proceeded on to final judgment as in ordinary actions, but such judgment shall only bind the property attached, and shal…

Wherever an attachment may issue against the property of any person upon any debt or other action founded upon contract, attachment may also issue upon any action founded upon a tort or other action ex delictu [ex delicto]; this law shall apply to actions which have heretofore or…

When property of the defendant found in his possession, or in the hands of any other person, shall be attached, the defendant or such other person may retain possession thereof by giving bond and security to the satisfaction of the officer executing the writ, to the officer or hi…

The officer executing the writ of attachment shall return, with the writ, all bonds taken by him in virtue thereof, a schedule of all property and effects attached, and the names of all the garnishees, the times and places when and where respectively summoned. History: C.L. 1897,…

If the officer wilfully [willfully] fail to return a good and sufficient bond in any case where bond is required by law, he shall be held and considered as security for the performance of all acts and the payment of all money to secure the performance of which such bond ought to …