N.M. R. Civ. P. Dist. Ct. 1-043
This rule is not intended to be exclusive and nothing herein contained shall be construed to require the courts to exclude evidence admissible under the New Mexico Rules of Evidence.
N.M. R. Civ. P. Dist. Ct. 1-043
ANNOTATIONS Compiler's notes. - Paragraph B (formerly (a)(1)) was adopted as part of this rule, effective November 1, 1942; formerly this provision comprised Rule 26(m) (see now Rule 1-026 NMRA). This subdivision is deemed to have superseded 45-407, C.S. 1929, which was substantially the same. The major portion of the former provisions of Paragraph A has been superseded by Rule 11-402 NMRA; former Subdivision (b) has been superseded by Rules 11-607 and 11-611 NMRA; former Subdivision (c) by Rule 11-103; and former Subdivision (d) by Rule 11-603 NMRA. Constitutional to impose sanctions without hearing where party warned and hearing not necessary. - Where a party has been warned that failure to comply with the court's discovery orders may result in the imposition of sanctions under Rule 37(B) (see now Rule 1-037 NMRA), and where the court, pursuant to this rule has determined that an evidentiary hearing under the circumstances is not necessary before ruling on a motion to impose sanctions, the imposition of such sanctions does not amount to a denial of due process. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981). Generally as to prior testimony. - Section 45-407, C.S. 1929, was not repealed by 35-4508, C.S. 1929 (relating to conduct of preliminary examinations), and while they overlapped to some extent, they were to be construed together. State v. Moore, 1936-NMSC-044, 40 N.M. 344, 59 P.2d 902. Oral testimony proper in hearing on motion for summary judgment. - Pleading seeking summary judgment is a motion, and Subdivision (e) (see now Paragraph C) permits court to hear oral testimony at a hearing on a motion. Summers v. American Reliable Ins. Co., 1973 -NMSC-060, 85 N.M. 224, 511 P.2d 550. Procedure regarding telephone testimony. - Any permissible use of telephone testimony in court proceedings would depend on the specific facts and circumstances involved. Assuming that such testimony is appropriate in some circumstances, the conclusion that a deposition witness must take an oath and testify in the presence of an authorized officer also would apply to any testimony that a witness gives to the court over the telephone. 1988 Op. Att'y Gen. No. 88-81. Because Rule 1-056 NMRA is silent concerning the use of oral testimony to support or oppose motions for summary judgment, the practice is to be used, if at all, only upon a proper showing that the party seeking to offer such testimony has first exercised due diligence in attempting to secure affidavits or deposition testimony for submission incident to such motion, and that for reasons beyond his control has been unable to obtain the affidavits or depositions. Marquez v. Gomez, 1991-NMCA-066, 116 N.M. 626, 866 P.2d 354. Law reviews. - For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 81 Am. Jur. 2d Witnesses §713. Validity of proceedings as affected by taking evidence out of court, 43 A.L.R. 1516, 47 A.L.R. 371, 48 A.L.R. 1269, 18 A.L.R.3d 572. Manner or extent of trial judge's examination of witnesses in civil cases, 6 A.L.R.4th 951. Admissibility of oral testimony at state summary judgment hearing, 53 A.L.R.4th 527. 98 C.J.S. Witnesses §§ 317, 322.