Creditors may sue their debtors before justices of the peace [magistrates] or in the district courts, by attachment, in the following cases, to wit:

1. A. when the debtor is not a resident of, nor resides in this state;
2. B. when the debtor has concealed himself, or absconded or absented himself from his usual place of abode in this state, so that the ordinary process of law cannot be passed upon him;
3. C. when the debtor is about to remove his property or effects out of this state, or has fraudulently concealed or disposed of his property or effects so as to defraud, hinder or delay his creditors;
4. D. when the debtor is about fraudulently to convey or assign, conceal or dispose of his property or effects, so as to hinder or delay his creditors;
5. E. when debt was contracted out of this state, and the debtor has absconded or secretly removed his property or effects into the state, with the intent to hinder, delay or defraud his creditors;
6. F. where the defendant is a corporation whose principal office or place of business is out of the state, unless such corporation shall have a designated agent in the state, upon whom service of process may be made in suits against the corporation;
7. G. where the defendant fraudulently contracted the debt or incurred the obligation respecting which the suit is brought or obtained credit from the plaintiff by false pretenses;
8. H. that the debt is for work and labor, or for any services rendered by the plaintiff, or his assignor, at the instance of the defendant;

9. I. where the debt was contracted for the necessities of life.

   An attachment may issue on a demand not yet due in any case where an attachment is authorized, in the same manner as upon demands already due.

History: C.L. 1897, § 2685 (182), added by Laws 1907, ch. 107, § 1 (182); Code 1915, § 4299; Laws 1917, ch. 113, § 3; 1929, ch. 127, § 1; C.S. 1929, § 105-1601; 1941 Comp., § 22-101; 1953 Comp., § 26-1-1.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Cross references. — For intervention in attachment proceedings, see 42-9-29 NMSA 1978.

For abolition of justice of the peace, see N.M. Const., art. VI, § 31.

For jurisdiction, powers and duties of the justices of the peace transferred to the magistrate court, see 35-1-38 NMSA 1978.

For attachment procedure in the magistrate court, see 35-9-1 to 35-9-8 NMSA 1978.

For failure to execute release after forfeiture of lease for oil, gas or mineral land, see 70-1-4 NMSA 1978.

Constitutionality. — New Mexico's present replevin statutes comply with due process standards established by United States supreme court in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974), and are therefore constitutional. First Nat'l Bank v. Southwest Yacht & Marine Supply Corp., 1984-NMSC-075, 101 N.M. 431, 684 P.2d 517.

Object of remedy. — The sole object of an attachment is to create a prior lien on the property of the attachment debtor as security on any judgment that may thereafter be obtained against him on the demands covered by the attachment. Staab v. Hersch, 1884-NMSC-018, 3 N.M. (Gild.) 209, 3 P. 248.

Debtor must be nonresident of state where attachment is sued out, and such statutes do not require that he should be a resident elsewhere. First Nat'l Bank v. Payton, 1919-NMSC-024, 25 N.M. 264, 180 P. 979.

Attachment proceedings are auxiliary to actions at law, but each is characterized by separate pleading and distinct practice. Staab v. Hersch, 1884-NMSC-018, 3 N.M. (Gild.) 209, 3 P. 248 (decided under former law).

Auxiliary where personal judgment sought, but otherwise with judgment in rem. — An attachment is auxiliary where a personal judgment is sought, but it is an original attachment where a judgment in rem only is sought. Southern Cal. Fruit Exch. v. Stamm, 1898-NMSC-008, 9 N.M. 361, 54 P. 345 (decided under former law).

Maturity of demand necessary before issue of indebtedness raised. — When attachment is resorted to, for demands and credits not due, and the grounds of attachment are traversed, a speedy determination of that issue is important; but the main issue on the indebtedness cannot be raised, nor any defense interposed, until the maturity of the demand sued on, except to show that no such demand exists on which an attachment will lie. Staab v. Hersch, 1884-NMSC-018, 3 N.M. (Gild.) 209, 3 P. 248 (decided under former law).

Magistrate or district court proper tribunals. — Under existing legislation attachment in tort actions may be had in both district and justice (now magistrate) courts. Butler Paper Co. v. Sydney, 1943-NMSC-047, 47 N.M. 463, 144 P.2d 170.

Allegation must state present purpose and ground. — An allegation in an affidavit that the defendant "has attempted fraudulently to convey" does not state a present purpose and does not state a ground of attachment. Torlina v. Trorlicht, 1889-NMSC-012, 5 N.M. 148, 21 P. 68, aff'd, 1891-NMSC-019, 6 N.M. 54, 27 P. 794.

Jury trial optional. — Issue may be tried before the court either with or without a jury as in other cases at law. Everett v. Gilliland, 1943-NMSC-030, 47 N.M. 269, 141 P.2d 326.

Setting aside conveyance before obtaining judgment improper. — Before obtaining judgment upon his demand, an attaching creditor cannot maintain an action to have an alleged conveyance of real estate set aside. Talbott v. Randall, 1885-NMSC-016, 3 N.M. (Gild.) 367, 5 P. 533 (decided under former law).

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).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 6 Am. Jur. 2d Attachment and Garnishment §§ 1, 3, 120 to 125, 218 to 251, 264 to 266, 270 to 274.

Termination of right of stoppage in transit by seizure of goods in possession of a carrier under attachment, 7 A.L.R. 1408.

Attachment in libel and slander cases, 11 A.L.R. 378, 61 A.L.R. 1347.

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

Partner's right to sue out attachment against copartner, 21 A.L.R. 129, 58 A.L.R. 634.

What constitutes nonresidence for purpose of attachment, 26 A.L.R. 180.

Action based upon statute as one in which attachment will lie, 26 A.L.R. 563, 51 A.L.R. 1386.

Attachment or garnishment as affected by trick or device by which the property of or indebtedness to nonresident was subjected to the jurisdiction, 37 A.L.R. 1255.

Liability of estate for administrator's wrongful attachment, 44 A.L.R. 674, 127 A.L.R. 687.

Attachment under state law of railroad property in suit involving interstate shipment, 64 A.L.R. 359.

Debt, what amounts to, within statute providing for attachment before debt is due, 65 A.L.R. 1439, 58 A.L.R.2d 1451.

Attachment as affected by excessive claim, 68 A.L.R. 853.

Practice of law by corporation, procuring attachment proceedings as, 73 A.L.R. 1335, 105 A.L.R. 1364, 157 A.L.R. 282.

Action based on rescission of contract as one arising on contract express or implied, 77 A.L.R. 748, 95 A.L.R. 1028.

Right to and form of judgment against one discharged in bankruptcy in order to sustain attachment, 81 A.L.R. 81.

Affidavits stating grounds of attachment on information and belief, 86 A.L.R. 588.

Attachment statute as applicable to equity suits, 154 A.L.R. 95.

Corporation rendering services in connection with attachment proceedings as engaged in practice of law, 157 A.L.R. 299.

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

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

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

Removability of proceeding to federal court, 22 A.L.R.2d 904.

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.

Abatement on ground of prior pending action in same jurisdiction as affected by loss by plaintiff in second action of advantage gained therein by attachment, garnishment, or like process, 40 A.L.R.2d 1111.

Attachment in alienation of affections or criminal conversation case, 67 A.L.R.2d 527.

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.

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

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 §§ 3, 4, 23 to 46, 84, 92 to 96, 102 to 113, 146, 164.