N.M. R. Civ. P. Magist. Ct. 2-705

As amended through May 8, 2024

Rule 2-705 - Appeal

A.Right of appeal. A party who is aggrieved by the judgment or final order in a civil action may appeal, as permitted by law, to the district court of the county within which the magistrate court is located. The notice of appeal shall be filed in the district court within fifteen (15) days after the judgment or final order appealed from is filed in the magistrate court. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within ten (10) days after the date on which the first notice of appeal was served or within the time otherwise prescribed by this rule, whichever period expires last. The three (3) day mailing period set forth in Rule 2-104 NMRA does not apply to the time limits set forth above. A notice of appeal filed after the announcement of a decision, or return of the verdict, but before the judgment or order is filed in the magistrate court, shall be treated as timely filed. Notwithstanding any other provision of this rule, no docket fee or other cost shall be imposed against the state or its political subdivisions in any such appeal.

B.Notice of appeal. An appeal from the magistrate court is taken by

(1) filing with the clerk of the district court a notice of appeal with proof of service; and

(2) promptly filing the following with the magistrate court

(a) a copy of the notice of appeal which has been endorsed by the clerk of the district court; and

(b) a copy of the receipt of payment of the docket fee.

C.Content of the notice of appeal. The notice of appeal shall be substantially in the form approved by the Supreme Court. A copy of the magistrate court judgment or final order appealed from, showing the date of the judgment or final order, shall be attached to the notice of appeal filed in the district court.

D.Service of notice of appeal. At the time the notice of appeal is filed in the district court, the appellant shall

(1) serve each party or such party's attorney in the proceedings in the magistrate court with a copy of the notice of appeal in accordance with Rule 1-005 NMRA of the Rules of Civil Procedure for the District Courts; and

(2) file proof of service with the clerk of the district court that a copy of the notice of appeal has been served in accordance with Rule 1-005.

E.Record on appeal. Within fifteen (15) days after the appellant files a copy of the notice of appeal with the magistrate court under Paragraph B of this rule, the magistrate court shall file with the clerk of the district court the record on appeal taken in the action in the magistrate court. For purposes of this rule, the record on appeal shall consist of

(1) a title page containing the caption of the case in the magistrate court and the names and mailing addresses of each party or, if the party is represented by counsel, the name and address of the attorney;

(2) a copy of all papers and pleadings filed in the magistrate court;

(3) a copy of the judgment or order sought to be reviewed with date of filing; and

(4) any exhibits.

The magistrate court clerk shall give prompt notice to all parties of the filing of the record on appeal with the district court.

F.Correction or modification of the record. If anything material to either party is omitted from the record on appeal by error or accident, the parties by stipulation, or the magistrate court or the district court, on proper suggestion or on its own initiative, may direct that the omission be corrected and a supplemental record transmitted to the district court.

G.Stay of proceedings to enforce a judgment.

(1) Except as provided in Subparagraph (2) of this paragraph, when an appeal is taken, the appellant may obtain a stay of the proceedings to enforce the judgment by posting a supersedeas bond with the clerk of the magistrate court. The bond may be posted at any time after docketing the appeal. The stay is effective when the supersedeas bond is approved by the magistrate court and shall continue in effect until final disposition of the appeal. The bond shall be conditioned for the satisfaction of and compliance with the judgment in full, as may be modified by an appellate court, together with costs, attorneys' fees, and interest, if any. The bond shall be enforceable on dismissal of the appeal or affirmance of the judgment. If the judgment is reversed or satisfied, the bond is void. The surety, sureties, or collateral securing such bond, and the terms thereof, must be approved by and the amount fixed by the magistrate court. If a bond secured by personal surety or sureties is tendered, the bond may be approved only on notice to the appellee. Each personal surety shall be required to show a net worth of at least double the amount of the bond. If the judgment is for the recovery of money, the amount of the bond shall be the amount of the judgment remaining unsatisfied, together with costs, attorneys' fees, and interest, if any. In determining the sufficiency of the surety or sureties and the extent to which the surety or sureties shall be liable on the bond, or whether any surety will be required, the court shall take into consideration the type and value of any collateral that is in, or may be placed in, the custody or control of the court and that has the effect of securing payment of and compliance with the judgment.

(2) When an appeal is taken by the state, by an officer or agency of the state, by direction of any department of the state, by any political subdivision or institution of the state, or by any municipal corporation, the taking of an appeal shall operate as a stay.

H.District court review of supersedeas. At any time after an appeal is filed under Paragraph B of this rule, the district court may, on motion and notice, review any action of, or any failure or refusal to act by, the magistrate court dealing with supersedeas or stay. If the district court modifies the terms, conditions, or amount of a supersedeas bond, or if it determines that the magistrate court should have allowed supersedeas and failed to do so on proper terms and conditions, it may grant additional time within which to file in the district court a supersedeas bond as provided by this rule. Any change ordered by the district court shall be certified by the clerk of the district court and filed with the magistrate court by the party seeking the review.

I.Procedure on appeal. The Rules of Civil Procedure for the District Courts shall govern the procedure on appeal from the magistrate court.

J.Remand. On remand of the case by the district court to the magistrate court, the magistrate court shall enforce the mandate of the district court.

K.Return of record. After final determination of the appeal, the clerk of the district court shall return the record on appeal to the magistrate court clerk.

N.M. R. Civ. P. Magist. Ct. 2-705

As amended, effective 11/1/1988;1/1/1994;7/1/1996; as amended by Supreme Court Order No. 16-8300-021, effective for all cases pending or filed on or after12/31/2016.

ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-021, effective December 31, 2016, removed the transcript of proceedings from inclusion in the record on appeal; in Paragraph A, after each occurrence of "filed in the magistrate court", deleted "clerk's office", and after "Rule 2-104", added "NMRA"; in Subparagraph B(2), after "promptly filing", added "the following"; in Paragraph E, in the introductory sentence, after "with the magistrate court", deleted "pursuant to" and added "under", in Subparagraph E(3), after the semicolon, added "and"; in Subparagraph E(4), after "exhibits", deleted "and"; deleted Subparagraph E(5), relating to the transcript of proceedings, and deleted "Any party desiring a copy of the transcript of proceedings shall be responsible for paying the cost of preparing such copy"; in Subparagraph G(1), after "The bond shall be enforceable", deleted "upon" and added "on", after "value of any collateral", deleted "which" and added "that", and after "control of the court and", deleted "which" and added "that"; in Paragraph H, after "At any time after", added "an", after "appeal is filed", deleted "pursuant to" and added "under", and after "the district court may", deleted "upon" and added "on"; and in Paragraph J, deleted "Upon" and added "On". The 1996 amendment, effective for appeals filed after July 1, 1996, rewrote the rule.

For right of appeal, see Section 35-13-1 NMSA 1978. For rules of Civil Procedure for District Courts, see Rule 1-001 NMRA et seq. For appeal from magistrate courts in trial de novo cases, see Rule 1-072 NMRA. For form on title page of transcript of civil proceedings, see Rule 4-708 NMRA. Late filing of appeal. - Because timely filing of an appeal is a mandatory precondition rather than an absolute jurisdictional requirement, a trial court may, under unusual circumstances, use its discretion and entertain an appeal even though it is not timely filed. The decision to dismiss an appeal is extreme and must be determined on a case-by-case basis. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Court error may excuse late appeal. - One unusual circumstance which would warrant permitting an untimely appeal is if the delay is a result of judicial error. To deny a party the constitutional right to an appeal because of a mistake on the part of the court runs against the most basic precepts of justice and fairness. Trujillo v. Serrano, 1994-NMSC-024, 117 N.M. 273, 871 P.2d 369. Magistrate's continuing control over civil judgments expires 15 days after entry of judgment. State v. Ramirez, 1981-NMSC-125, 97 N.M. 125, 637 P.2d 556. Transcripts. - Because transcripts are designated separately from papers in the rules listing the contents of the record on appeal, transcripts are not "papers," but transcripts that are properly admitted into evidence as exhibits may be part of the record on appeal. State v. Foster, 2003-NMCA-099, 134 N.M. 224, 75 P.3d 824. Am. Jur. 2d, A.L.R. and C.J.S. references. - 4 Am. Jur. 2d Appellate Review § 85 et seq. Will questions which might have been, but were not, raised on prior appeal or error, be considered on subsequent appeal or error, 1 A.L.R. 725. Necessity and sufficiency of election to stand on demurrer to support appeal from decision overruling, 21 A.L.R. 264. Power of legislature to require appellate court to review evidence, 33 A.L.R. 10. Power of trial court indirectly to extend time for appeal, 89 A.L.R. 941, 149 A.L.R. 740. Judgment or order dismissing action as against one defendant as subject of appeal or error before disposition of case as against codefendant, 114 A.L.R. 759. Abandonment of appeal or right of appeal by commencement or prosecution to judgment of another action, 115 A.L.R. 121. Right of public officer or board to appeal from judicial decision affecting his or its order or decision, 117 A.L.R. 216. Provision for future accounting as affecting finality of judgment or decree for purposes of review, 3 A.L.R.2d 342. Motion or petition for rehearing in court below as affecting time within which appellate proceedings must be taken or instituted, 10 A.L.R.2d 1075. Bastardy proceedings, right to appeal from order or judgment entered in, 18 A.L.R.2d 948. Amendment of judgment as affecting time for taking or prosecuting appellate review proceedings, 21 A.L.R.2d 285. Appellate review at instance of plaintiff who has requested, induced or consented to dismissal or nonsuit, 23 A.L.R.2d 664. Sexual psychopathy, appealability of adjudication as to, 24 A.L.R.2d 350. Defeated party's payment or satisfaction of, or other compliance with civil judgment as barring his right to appeal, 39 A.L.R.2d 153. Appealability of order or judgment awarding or denying costs but making no other adjudication, 54 A.L.R.2d 927. Exclusion or inclusion of terminal Sunday or holiday in computing time for taking or perfecting appellate review, 61 A.L.R.2d 482. Acceptance of new trial as precluding appellate review of order granting it, 67 A.L.R.2d 191. Full relief sought, right of winning party to appeal from judgment granting him, 69 A.L.R.2d 701. Right to appellate review of consent judgment, 69 A.L.R.2d 755. Formal requirements of judgment or order as regards appealability, 73 A.L.R.2d 250. Appealability of order vacating, or refusing to vacate, approval of settlement of infant's tort claim, 77 A.L.R.2d 801. Reviewability, on appeal from final judgment, of interlocutory order, as affected by fact that order was separately appealable, 79 A.L.R.2d 1352. Void judgment, appealability of, 81 A.L.R.2d 537. Appealability of order or decree compelling or refusing to compel arbitration, 94 A.L.R.2d 1071, 6 A.L.R.4th 652. Dismissal of appeal or writ of error for want of prosecution as bar to subsequent appeal, 96 A.L.R.2d 312. Appealability of judgment confirming or setting aside arbitration award, 7 A.L.R.3d 608. Default judgment, appealability of order setting aside, or refusing to set aside, 8 A.L.R.3d 1272. Executor's or administrator's right to appeal from order granting or denying distribution, 16 A.L.R.3d 1274. Party's acceptance of remittitur in lower court as affecting his right to complain in appellate court as to amount of damages for personal injury, 16 A.L.R.3d 1327. Bankruptcy, right of creditor who has not filed timely petition for review of referee's order to participate in appeal secured by another creditor, 22 A.L.R.3d 914. Contempt adjudication or conviction, appealability of, 33 A.L.R.3d 448. Contempt adjudication or conviction as subject to review, other than by appeal or writ of error, 33 A.L.R.3d 589. Appealability of state court's order or decree compelling or refusing to compel arbitration, 6 A.L.R.4th 652. Modern status of state court rules governing entry of judgment on multiple claims, 80 A.L.R.4th 707, 89 A.L.R. Fed. 514. 4 C.J.S. Appeal and Error § 2 et seq.