1. A. An attachment may be issued in a civil action in the magistrate court only upon the filing of a civil complaint, accompanied by:

   1. (1) a bond to the defendant in double the sum claimed in the complaint, with sufficient sureties, conditioned that the plaintiff will diligently prosecute the action to final judgment without delay and will pay the defendant all damages and costs sustained from the attachment if no judgment is recovered against the defendant in the action; and

   2. (2) an affidavit of the plaintiff that one or more of the following facts exists:

      1. (a) the defendant is not a resident of this state;
      2. (b) the defendant has concealed himself or left his usual place of abode in this state so that ordinary civil process cannot be served on him;
      3. (c) the defendant is about to remove his personal property out of this state or has concealed or disposed of his property fraudulently so as to defraud, hinder or delay his creditors;
      4. (d) the defendant is about to convey or assign, conceal or dispose of his property fraudulently so as to hinder or delay his creditors;
      5. (e) the debt that is the subject of the action was contracted out of this state, and the defendant has secretly removed his property into this state with the intent to hinder, delay or defraud his creditors;
      6. (f) the defendant is a corporation whose principal office or place of business is out of the state, and the corporation has not designated an agent in this state for service of process against the corporation;
      7. (g) the defendant fraudulently contracted the debt or incurred the obligation that is the subject of the action or obtained credit from the plaintiff by false pretenses; or
      8. (h) the debt that is the subject of the action is for labor, for any services rendered by the plaintiff or his assignor at the instance of the defendant or was contracted for the necessities of life.
2. B. An attachment may issue upon a demand not yet due in any case where an attachment is authorized, in the same manner as upon demands already due.

History: 1953 Comp., § 36-11-1, enacted by Laws 1968, ch. 62, § 114; 1991, ch. 82, § 14.

ANNOTATIONS

Repeals. — Laws 1968, ch. 62, § 171, repealed former 36-11-1, 1953 Comp., relating to forms for various actions, effective January 1, 1969.

Cross references. — For jurisdictional amount of magistrate court, see 35-3-3 NMSA 1978.

The 1991 amendment, effective June 14, 1991, in Paragraph (2) of Subsection A, substituted "concealed or disposed of his property fraudulently" for "fraudulently concealed or disposed of his property" in Subparagraph (c) and substituted "convey or assign, conceal or dispose of his property fraudulently" for "fraudulently convey or assign, conceal or dispose of his property" in Subparagraph (d); deleted former Subsection C which read "Any magistrate who issues an attachment in any civil action except in compliance with the provisions of this section is guilty of a petty misdemeanor and shall be removed from office"; and made minor stylistic changes throughout the section.

Law reviews. — For article, "Attachment in New Mexico - Part I," see 1 Nat. Resources J. 303 (1961).

For article, "Attachment in New Mexico - Part II," see 2 Nat. Resources J. 75 (1962).

For comment, "Attachment and Garnishment - Prejudgment Garnishment - Study and Proposed Revisions," see 9 Nat. Resources J. 119 (1969).

For comment, "Wage Garnishment in New Mexico - Existing Debtor Protections under Federal and State Law and Further Proposals," see 1 N.M. L. Rev. 388 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Attachment and Garnishment §§ 218, 254 to 287, 518 to 522; 47 Am. Jur. 2d Justices of the Peace § 29 et seq.

Intent to defraud, sufficiency of affidavit respecting as against objection that it is a mere legal conclusion, 8 A.L.R.2d 578.

Residence of partnership for purposes of statutes authorizing attachment on ground of nonresidence, 9 A.L.R.2d 471.

What is an action for debt within attachment statute, 12 A.L.R.2d 787.

Foreign attachment or garnishment as available in action by nonresidents against nonresident or foreign corporation upon a foreign cause of action, 14 A.L.R.2d 420.

What constitutes a fraudulently contracted debt or fraudulently incurred liability or obligation within purview of statute authorizing attachment on such grounds, 39 A.L.R.2d 1265.

Amendment of attachment bond, 47 A.L.R.2d 971.

What sort of claim, obligation or liability is within contemplation of statute providing for attachment before debt or liability is due, 58 A.L.R.2d 1451.

Interest of spouse in estate by entireties as subject to attachment lien in satisfaction of his or her individual debt, 75 A.L.R.2d 1172.

Family allowance from decedent's estate as exempt from attachment, garnishment, execution, and foreclosure, 27 A.L.R.3d 863.

Potential liability of insurer under liability policy as subject of attachment, 33 A.L.R.3d 992.

Client's funds in hands of his attorney as subject of attachment or garnishment by client's creditor, 35 A.L.R.3d 1094.

Liability of creditor for excessive attachment or garnishment, 56 A.L.R.3d 493.

What constitutes malice sufficient to justify an award of punitive damages in action for wrongful attachment or garnishment, 61 A.L.R.3d 984.

Recovery of damages for mental anguish, distress, suffering or the like, in action for wrongful attachment, garnishment, sequestration or execution, 83 A.L.R.3d 598.

Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.

7 C.J.S. Attachment § 23 et seq.; 51 C.J.S. Justices of the Peace § 77 (1 to 5).