N.M. R. App. P. 12-301

As amended through February 27, 2024

Rule 12-301 - Parties and substitution

A.Death of a party. If a party dies after notice of appeal is filed or while a proceeding is otherwise pending, the personal representative of the deceased party may be substituted as a party on motion filed in the appellate court by the representative or by any party. The motion of a party shall be served upon the representative as provided in Rule 12-307 NMRA. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate court directs. If a party against whom an appeal may be taken dies after entry of a judgment or order in the district court but before a notice of appeal is filed, an appellant may proceed as if the death had not occurred. If a party entitled to appeal dies before notice of appeal, the notice may be filed by the party's personal representative or if none, by the party's attorney of record within the time prescribed by these rules. After the notice of appeal is filed substitution shall be effected in the appellate court in accordance with this rule.

B.Substitution for other causes. If substitution of a party in the appellate court is necessary for any reason other than death, substitution shall be effected in accordance with the procedure provided in Paragraph A of this rule.

C.Public officers; death or separation from office.

(1) When a public officer is a party to an appeal or other proceeding in the appellate court in the officer's official capacity and during its pendency dies, resigns or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(2) A public officer who is a party to an appeal or other proceeding in the officer's official capacity may be described by official title rather than by name, unless the court otherwise directs.

N.M. R. App. P. 12-301

As amended, effective 9/1/1991.

ANNOTATIONS The 1991 amendment, effective for cases filed in the supreme court and court of appeals on and after September 1, 1991, rewrote this rule.

For death of party after judgment and before review, see Section 39-3-19 NMSA 1978. For death of party pending review, see Section 39-3-20 NMSA 1978. For substitution of parties upon review, see Section 39-3-21 NMSA 1978. For federal rule, see Fed. R. App. P. Rule 43. Right to add parties was contingent on appeal having been perfected, under former Supreme Court Rules. Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., 1963-NMSC-094, 72 N.M. 163, 381 P.2d 675. Time requirements under former rules. - Under former Supreme Court Rules, essential or necessary party to appeal could not be added after time allowed for appeal has expired. Brown v. N.M. State Bd. of Educ., 1971-NMSC-089, 83 N.M. 99, 488 P.2d 734; Miller v. Oskins, 1927-NMSC-101, 33 N.M. 109, 263 P. 764. There was no time limit under statute or Rule 8 of former Supreme Court Rules on the right to make application to add parties, though unseemly delay or prejudice to the opposite party would be factors of great weight in looking with disfavor on such an application. Ferguson-Steere Motor Co. v. SCC, 1955-NMSC-028, 59 N.M. 220, 282 P.2d 705. Indispensable parties. - On appeal of state corporation commission (now public regulation commission) order authorizing trucking operations, where mandate of a judgment would operate directly upon commission and injunctive features would run directly to commission and personnel, commission and personnel were indispensable parties. Ferguson-Steere Motor Co. v. SCC, 1955-NMSC-028, 59 N.M. 220, 282 P.2d 705. Addition of party previously barred by untimely filing. - Although a notice of appeal by the state engineer was filed within the time provided in Section 72-7-3 NMSA 1978, it was not filed within the time provided by the Rules of Appellate Procedure. The appeal was therefor untimely and the court was without jurisdiction to hear it. However, having jurisdiction of an appeal filed by other parties, and there being no prejudice to the parties, the state engineer's motion to be added as a party appellant was granted. Ensenada Land & Water Ass'n v. Sleeper, 1988-NMCA-030, 107 N.M. 494, 760 P.2d 787. Persons not parties below. - Under Rule 8 of former Supreme Court Rules, supreme court would deny motion by persons not parties below to intervene or be made parties to appeal, but would consider brief which they tendered as amicus curiae brief. Drink, Inc. v. Babcock, 1966-NMSC-236, 77 N.M. 277, 421 P.2d 798. Appellants added. - On appeal from directed verdict in favor of owner-petroleum corporation and welding contractor in action brought by insurer alleging negligence resulting in loss of drilling rig and equipment by fire, insureds (drilling companies) would be added as appellants on motion of appellant (insurer) made when appellees (owner and contractor) questioned right to appeal, there being an identity of interest between insurer and insureds. Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., 1963-NMSC-094, 72 N.M. 163, 381 P.2d 675. Counsel substituted for deceased defendant. - Defendant's death while his appeal was pending did not require abatement of the criminal proceedings to their inception; rather, the court could permit the appeal to move forward and appoint defense counsel of record as defendant's substitute for the remainder of the proceeding. State v. Salazar, 1997-NMSC-044, 123 N.M. 778, 945 P.2d 996 overruling State v. Doak, 1976-NMCA-091, 89 N.M. 532, 554 P.2d 993. Substitution of worker's estate for worker's compensation claimant. - Worker's estate is entitled to be substituted for the worker for the purpose of prosecuting an appeal as it relates to benefits incurred before death. Estate of Mitchum v. Triple S Trucking, 1991-NMCA-118, 113 N.M. 85, 823 P.2d 327. Rule permits appellate court to allow proceedings to continue on their merits following the death of a party. Henry v. Daniel, 2004-NMCA-016, 135 N.M. 261, 87 P.3d 541, cert. denied, 2004-NMCERT-002. Am. Jur. 2d, A.L.R. and C.J.S. references. - 5 Am. Jur. 2d Appellate Review § 279 et seq. 4 C.J.S. Appeal and Error § 232 et seq.