N.M. R. Civ. P. Dist. Ct. 1-025
N.M. R. Civ. P. Dist. Ct. 1-025
For substitution of combined municipal organization in pending court proceedings, see Section 3-16-17 NMSA 1978. For survival and revivor of suit, action or proceedings by or against head of agency or other state officer despite executive reorganization, see Section 9-1-10 NMSA 1978. For general provisions on survival, abatement and revivor of actions, see Sections 37-2-1 to 37-2-17 NMSA 1978. For statute authorizing action against survivors of persons liable on contract, judgment or statute, see Section 38-4-2 NMSA 1978. For death of party between verdict and judgment, see Section 39-1-3 NMSA 1978. For union of conservancy districts, see Section 73-17-2 NMSA 1978. Compiler's notes. - Paragraph A is deemed to have superseded 105-1208, C.S. 1929, relating to persons eligible to make motion for substitution, and 105-1209, C.S. 1929, relating to revival of the action. Paragraph D is deemed to have superseded former Trial Court Rule 105-1220, relating to the effect of the death of a public officer on an action to which he is a party, providing for notice of proposed substitutions and prohibiting the assessment of the costs of substitution. All parties on one side of lawsuit not necessarily one party. - These rules, as well as the common understanding of what is meant by a party to a lawsuit are inconsistent with the position that all parties on one side of a lawsuit are but one party. Romero v. Felter, 1972-NMSC-032, 83 N.M. 736, 497 P.2d 738. Use of Rule 1-004 where court without personal jurisdiction over those to be served with suggestion of death. - If the court has not acquired personal jurisdiction over the persons to be served with a suggestion of death, then Rule 4 (now Rule 1-004 NMRA) is the proper mechanism to effectuate proper notice, because the latter rule is jurisdictionally rooted. Jones v. Montgomery Ward & Co., 1985-NMCA-094, 104 N.M. 636, 725 P.2d 836. Proper party to receive notice of suggestion of death. - Where the plaintiff died before the case went to trial, his attorney was not the proper party, either under Rule 4 (now Rule 1-004 NMRA) or under Rule 5 (now Rule 1-005 NMRA), to receive notice of suggestion of death so as to trigger the 90-day period for substitution of parties provided under this rule. Jones v. Montgomery Ward & Co., 1985-NMCA-094, 104 N.M. 636, 725 P.2d 836. Party assigning interests after commencement. - Although Rule 1-017(A) NMRA controls where an interest has been transferred prior to commencement of an action, Paragraph C of this rule becomes the applicable provision where a party commences the action but subsequently transfers its interests by assignment. Daniels Ins., Inc. v. Daon Corp., 1987-NMCA-110, 106 N.M. 328, 742 P.2d 540. Assignment by partner. - Under Paragraph C of this rule, as a matter of law, substitution of parties cannot be predicated upon the written assignment by one limited partner in the chose in action (the rights in the cause of action) owned by the partnership without joinder or consent of the remaining partner in the same partnership property, but an invalid or ineffective assignment, may be validated by ratification. Daniels Ins., Inc. v. Daon Corp., 1987-NMCA-110, 106 N.M. 328, 742 P.2d 540. Court's discretion in substituting successor in interest. - Substitution of a successor in interest under Paragraph C is within the sound discretion of the trial court. Daniels Ins., Inc. v. Daon Corp., 1987-NMCA-110, 106 N.M. 328, 742 P.2d 540. Supplemental complaint against transferee proper. - Where railway was acquired by new owner subsequent to first trial, it was proper to file supplemental complaint against new owner. Atchison, T. & S.F. Ry. v. Citizens' Traction & Power Co., 1919-NMSC-031, 25 N.M. 345, 182 P. 871 (decided under former law). Dismissal where deceased defendant not substituted. - Trial court did not abuse its discretion in dismissing plaintiff's complaint against defendant tortfeasor's insurer where defendant tortfeasor died during the pendency of the action and plaintiff did not move to substitute another defendant. Little v. Gill, 2003-NMCA-103, 134 N.M. 321, 76 P.3d 639. Public officer's departure from office results in an automatic substitution. - Where plaintiffs brought actions pursuant to the Whistleblower Protection Act (WPA), claiming that defendant, the former New Mexico Secretary of State, terminated plaintiffs' employment in retaliation for plaintiffs' allegations of defendant's misconduct in office, defendant's departure from public office did not preclude plaintiffs' claims, because if a state officer who is named as a defendant in a WPA suit dies or leaves office pending the final resolution of the action, the defendant's departure from public office would merely result in an automatic substitution of his or her successor in office, and the suit would proceed against the current officer. Flores v. Herrera, 2016-NMSC-033, rev'g 2015-NMCA-072, 352 P.3d 695. Identical to federal rule. - In construing Paragraph A(1) of this rule, courts may look to federal law for guidance because it is identical to its federal counterpart. Henry v. Daniel, 2004-NMCA-016, 135 N.M. 261, 87 P.3d 541, cert. denied, 2004-NMCERT-002. Suggestion of death must be properly served on any successor non-parties to commence running of the ninety days. Henry v. Daniel, 2004-NMCA-016, 135 N.M. 261, 87 P.3d 541, cert. denied, 2004-NMCERT-002. Law reviews. - For annual survey of New Mexico law of civil procedure, 19 N.M.L. Rev. 627 (1990). Am. Jur. 2d, A.L.R. and C.J.S. references. - 1 Am. Jur. 2d Abatement, Survival and Revival §§10, 17; 8 Am. Jur. 2d Automobiles and Highway Traffic §958; 14 Am. Jur. 2d Carriers §1135; 59 Am. Jur. 2d Parties §§210 et seq., 258. Survival of right of grantor to maintain suit to set aside conveyance, 2 A.L.R. 431, 33 A.L.R. 51. Survival of action or cause of action for alienation of affections or criminal conversation, 14 A.L.R. 693, 24 A.L.R. 488, 57 A.L.R. 351. Death of principal defendant as abating or dissolving garnishment or attachment, 21 A.L.R. 272, 131 A.L.R. 1146. Death of obligor as affecting executory obligation in consideration of promise to marry obligor, 34 A.L.R. 86. Survival of action or cause of action for breach of contract to marry, 34 A.L.R. 1363. Effect of death of one of joint payees of bill or note, 57 A.L.R. 600. Abatement of action which does not survive by death of party pending appeal or writ of error, 62 A.L.R. 1048. Survival of liability on joint obligation, 67 A.L.R. 608. Right of one to notice and hearing on motion to add him as a party, 69 A.L.R. 1247. Does a right of action on bond to recover for damages personal in their nature, and not affecting property rights, survive principal's death, 70 A.L.R. 122. Survival of cause of action for personal injury or death against tort-feasor killed in the same accident, 70 A.L.R. 1319. Survivability or assignability of action or cause of action in tort for damages for fraudulently procuring purchase or sale of property, 76 A.L.R. 403. Survival of claim for usury against estate of usurer, 78 A.L.R. 451. Survival upon death of wrongdoer of husband's or parent's action or right of action for consequential damages arising from injury to wife or minor child, 78 A.L.R. 593. Relation between survivability of cause of action and abatability of pending action, 92 A.L.R. 956. Necessary parties defendant in suit for removal of trustee under deed of trust receiving bonds or other obligations, and appointment of substitute, 98 A.L.R. 1140. Substitution, or addition, as plaintiff, after limitation period, of assignee, or trustee in bankruptcy, in action commenced by assignor, or bankrupt, within limitation period, but after assignment or bankruptcy, 105 A.L.R. 610. What actions or causes of action involve injury to reputation within statutes relating to survival of causes of action or abatement of actions. 117 A.L.R. 574. Assignability or survivability of cause of action to enforce civil liability under securities acts, 133 A.L.R. 1038. Abatement or survival, upon death of party, of action or cause of action based on libel or slander, 134 A.L.R. 717. Construction and application of statutory provision that, in case of transfer of subject matter of action pendente lite, the action may proceed in name of original party, or that the transferee may be substituted, 149 A.L.R. 829. Right of substitution of successive personal representatives as party plaintiff, 164 A.L.R. 702. Priority between devisee under devise pursuant to testator's agreement and third person claiming under or through testator's unrecorded deed, 7 A.L.R.2d 544. Appealability of order granting or denying substitution of parties, 16 A.L.R.2d 1057. Conflict of laws as regards survival of cause of action and revival of pending action upon death of party, 42 A.L.R.2d 1170. Parties to action for specific performance of contract for conveyance of realty after death of party to the contract, 43 A.L.R.2d 938. Right to attack validity of marriage after death of party thereto, 47 A.L.R.2d 1393. Effect of death of appellant upon appeal from judgment of mental incompetence against him, 54 A.L.R.2d 1161. Death of principal as exoneration, defense or ground for relief, of sureties on bail or appearance bond, 63 A.L.R.2d 830. Opinion evidence as to cause of death, disease or injury, admissibility of, 66 A.L.R.2d 1082. Real estate mortgage executed by one of joint tenants as enforceable after his death, 67 A.L.R.2d 999. Capacity of one who is mentally incompetent but not so adjudicated to sue in his own name, 71 A.L.R.2d 1247. Relative rights as between assignee of conditional seller and a subsequent buyer from the conditional seller after repossession or the like, 72 A.L.R.2d 342. Construction of Federal Rule 25(a)(1) as permitting substitution, as a party, of personal representative of a nonresident decedent, 79 A.L.R.2d 532. Right of trustee in bankruptcy, or his assignee, to sue on turnover order in state court, 84 A.L.R.2d 668. Enforceability, under statute of frauds provision as to contracts not to be performed within a year, of oral employment contract for more than one year but specifically made terminable upon death of either party, 88 A.L.R.2d 701. Annulment of marriage, mental incompetency of defendant at time of action as precluding, 97 A.L.R.2d 483. Enforceability of warrant of attorney to confess judgment against assignee, guarantor, or other party obligating himself for performance of primary contract, 5 A.L.R.3d 426. Bank's right to apply or set off deposit against debt of depositor not due at time of his death, 7 A.L.R.3d 908. Validity and effect of agreement that debt or legal obligation contemporaneously or subsequently incurred shall be canceled by death of creditor or obligee, 11 A.L.R.3d 1427. Applicability, as affected by change in parties, of statute permitting commencement of new action within specified time after failure of prior action not on merits, 13 A.L.R.3d 848. Official death certificate as evidence of cause of death in civil or criminal action, 21 A.L.R.3d 418. Attorney's death prior to final adjudication or settlement of case as affecting compensation under contingent fee contract, 33 A.L.R.3d 1375. Validity, construction and effect of clause in franchise contract prohibiting transfer of franchise or contract, 59 A.L.R.3d 244. Modern status of rule denying a common-law recovery for wrongful death, 61 A.L.R.3d 906. Conservator or guardian for an incompetent, priority and preference in appointment of, 65 A.L.R.3d 991. Sufficiency of suggestion of death of party, filed under Rule 25(a)(1) of Federal Rules of Civil Procedure, governing substitutions of party after death, 105 A.L.R. Fed. 816. 67A C.J.S. Parties §§ 58 to 64.