A. Garnishment may be issued in advance of judgment in a civil action in the magistrate court only upon the filing of a civil complaint, accompanied by:
(1) a bond to the defendant, with sufficient sureties, in double the sum claimed in the complaint, conditioned that the plaintiff will diligently prosecute the action to final judgment without delay, will pay to the defendant all money found due to him in the action and will pay the defendant and the garnishee all damages and costs sustained from the garnishment if no judgment is recovered from the defendant in the action; and
(2) an affidavit of the plaintiff that one or more of the following facts exists:
(a) the defendant has no property in his possession within this state subject to execution to satisfy the amount claimed in the complaint; or
(b) one or more of the grounds for issuance of attachment in the magistrate court, the applicable grounds to be stated in the affidavit.
B. Garnishment may be issued in aid of execution of judgment entered in a civil action in the magistrate court only upon the filing in the action of an affidavit of the plaintiff that the defendant has no property in his possession within this state subject to execution to satisfy the judgment.
C. Garnishment may be issued in the magistrate court in aid of execution of judgment, which was entered in a civil action in some other court in this state and the unpaid balance of which does not exceed the jurisdictional amount of the magistrate court, only upon the filing of a civil complaint together with a certified copy of the judgment and an affidavit of the plaintiff that the defendant has no property in his possession within this state subject to execution to satisfy the judgment.
D. The affidavit under Subsections A through C shall include a statement that the plaintiff believes that a named garnishee:
(1) is indebted to the defendant and that the debt is not exempt from garnishment; or
(2) holds personal property belonging to the defendant.
E. Any magistrate who issues a garnishment 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.
History: 1953 Comp., § 36-14-1, enacted by Laws 1968, ch. 62, § 133; 1969, ch. 139, § 3.
ANNOTATIONSRepeals. — Laws 1968, ch. 62, § 171, repealed former 36-14-1, 1953 Comp., relating to initiation of peace proceedings, effective January 1, 1969.
Cross references. — For jurisdictional amount of magistrate courts, see 35-3-3 NMSA 1978.
For rules governing garnishment in the district, magistrate, and metropolitan courts, see Rules 1-065.2, 2-802, and 3-802 NMRA, respectively.
For form for claim of exemptions on executions, see Rule 4-803 NMRA.
For form for order on claim of exemption and order to pay in execution proceedings, see Rule 4-804 NMRA.
For form for application for writ of garnishment and affidavit, see Rule 4-805 NMRA.
For form for notice of right to claim exemptions from execution, see Rule 4-808A NMRA.
For form for claim of exemption from garnishment, see Rule 4-809 NMRA.
Due process not violated. — Due process does not require that a judgment debtor shall be given notice and an opportunity to be heard before issuance of a garnishment to satisfy the judgment, since the judgment debtor would have already been provided with notice and an opportunity to be heard in the proceeding that resulted in the judgment against him; in addition, the plaintiffs had actual notice of the garnishment, were represented by counsel, and made no attempt to claim the exemptions which they alleged were denied them without notice and a hearing. Moya v. DeBaca, 286 F. Supp. 606 (D.N.M. 1968), appeal dismissed, 395 U.S. 825, 89 S. Ct. 2136, 23 L. Ed. 2d 740 (1969) (decided under former law).
Reaching of exempt property. — Garnishment was not a device by which exempt property could be reached. McFadden v. Murray, 1927-NMSC-039, 32 N.M. 361, 257 P. 999 (decided under former law).
Garnishment proceedings are a statutory remedy which are controlled by this chapter. Jemko, Inc. v. Liaghat, 1987-NMCA-069, 106 N.M. 50, 738 P.2d 922.
Garnishment of husband's income for wife's debts. — Since one-half of husband's income is available to satisfy wife's separate debt, because wife has a legally recognized interest in one-half of husband's income, creditor's post-judgment garnishment of one-half of husband's income was garnishment of its judgment debtor's wife's property, not husband's, and husband lacks standing to claim denial of due process. Cent. Adjustment Bureau, Inc. v. Thevenet, 1984-NMSC-083, 101 N.M. 612, 686 P.2d 954).
Joinder of spouses jointly obligated on promissory note. — Where husband is judgment debtor and the judgment of the trial court in a garnishment proceeding indicates that garnishee is indebted on a promissory note to husband and wife, if the note is not a community asset, both payees under the note should be joined so as to adjudicate their respective rights under the note, but if the note is a community asset, wife would be considered a proper but not indispensable party. Jemko, Inc. v. Liaghat, 1987-NMCA-069, 106 N.M. 50, 738 P.2d 922.
Jurisdiction. — A court has no jurisdiction to proceed in garnishment, even though it is a court of general jurisdiction, unless such jurisdiction is expressly conferred by statute. 1969 Op. Att'y Gen. No. 69-85.
Law reviews. — 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, 332 to 334, 518 to 522.
Garnishment of bank in suit against the payee or other holder of a check upon the bank, 5 A.L.R. 589.
Levy upon or garnishment of contents of safety deposit box, 11 A.L.R. 225, 19 A.L.R. 863, 39 A.L.R. 1215.
Garnishment of debt due from a foreign corporation doing business within the state to a nonresident, arising from business outside the state, 27 A.L.R. 1396.
Garnishment of fire insurer, 38 A.L.R. 1072, 53 A.L.R. 724.
Garnishment of debt as affected by previous assignment by principal defendant to a nonresident served constructively, 39 A.L.R. 1465.
Garnishment of goods covered by negotiable warehouse receipt, 40 A.L.R. 969.
Garnishment of note or check, 41 A.L.R. 1003.
Judgment as subject to garnishment in another court of the state in which it was rendered, 43 A.L.R. 190.
Conclusiveness as to merits of judgment of courts of foreign country, in garnishment proceedings, 46 A.L.R. 439, 148 A.L.R. 991.
Garnishment of carrier in respect of goods shipped, 46 A.L.R. 933.
Garnishment of deposit in branch bank, 50 A.L.R. 1340, 136 A.L.R. 471.
Priority of assignment of chose in action over subsequent garnishment as affected by lack of notice to debtor of assignment, 52 A.L.R. 109.
Foreign attachment or garnishment upon which jurisdiction is dependent resting upon property coming into hands of garnishee, or obligations having their inception, after service of the writ, 53 A.L.R. 1022.
Liability of alimony for wife's debts, 55 A.L.R. 361, 10 A.L.R. Fed. 881.
Garnishment of debt owing to two or more in an action against less than all, 57 A.L.R. 844.
Right of creditor upon dissolution of his own attachment to garnish custodian of attached property, 59 A.L.R. 526.
Garnishment against executor or administrator by creditor of heir, legatee, distributee or creditor of estate, 59 A.L.R. 768.
Accounts in one's hands for collection as subject of garnishment, 60 A.L.R. 884.
Vendee's interest under conditional sales contract as subject to garnishment, 61 A.L.R. 781.
Indebtedness to partnership as subject of attachment or garnishment by creditor of individual partner, 71 A.L.R. 77.
Garnishment of bank deposit, by depositor's creditor as entitling latter to trust or preference out of assets of insolvent garnishee bank, 83 A.L.R. 1085.
Interest of mortgagor or pledgor in property in possession of mortgagee or pledgee as subject of garnishment, 83 A.L.R. 1383.
Proceedings in one state upon debt or other claim as affected by pendency in another state of proceedings to garnish such debt or claim, 91 A.L.R. 959.
Liability for conversion of property as subject of garnishment by creditor of the owner, 91 A.L.R. 1337.
Property of incompetent or infant under guardianship as subject to execution, attachment or garnishment, 92 A.L.R. 919.
Unliquidated claims of damage in tort as subject of garnishment, 93 A.L.R. 1088.
Withdrawal value of stock in building and loan association as subject to garnishment, 94 A.L.R. 1017.
Giving of check by debtor before garnishment as affecting right to garnish debt, 94 A.L.R. 1391.
Right to garnish amount payable under contract contemplating cash transaction, 95 A.L.R. 1497.
Garnishment by landlord's creditor of tenant's obligation in respect of rent, 100 A.L.R. 307.
Garnishment of bank deposit as affected by bank's right, or waiver of right, to set-off depositor's indebtedness to it against deposit or apply deposit to such indebtedness, 106 A.L.R. 62, 110 A.L.R. 1268.
Bank deposit as subject of garnishment for debt of depositor as affected by previous acts by bank in relation to deposit, 107 A.L.R. 697.
Jurisdiction of justice's court of garnishment proceedings incidentally involving title to land, 115 A.L.R. 540.
Foreign corporation doing business within state as subject to garnishment because of indebtedness to nonresident who in turn is indebted to nonresident principal defendant, 116 A.L.R. 387.
Judgment in tort action as subject of assignment, attachment or garnishment pending appeal, 121 A.L.R. 420.
Situs of corporate stock or stock in joint stock company for purpose of garnishment, 122 A.L.R. 338.
Money or other property taken from prisoner as subject of garnishment, 154 A.L.R. 758.
Garnishment of insurance by creditor or member of class to whom payment may be made under facility of payment clause, 166 A.L.R. 10.
Garnishment of proceeds of policy containing facility of payment clause, 166 A.L.R. 54.
Effect on judgment in garnishment proceedings as between garnishee and principal defendant of disclosure or failure to disclose exemptions, 166 A.L.R. 272.
Form of judgment against garnishee respecting obligation payable in installments, 7 A.L.R.2d 680.
Residence of partnership for purposes of statutes authorizing garnishment on ground of nonresidence, 9 A.L.R.2d 471.
What is an action for "debt" within garnishment 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 to federal court of garnishment proceedings, 22 A.L.R.2d 904.
Retirement or pension proceeds or annuity payments under group insurance as subject to attachment or garnishment, 28 A.L.R.2d 1213.
Rights of creditors of life insured as to options or other benefits available to him during his lifetime, 37 A.L.R.2d 268.
Sharecropper's share in crop wholly or partially unharvested as subject to garnishment, 82 A.L.R.2d 858.
Garnishment of salary, wages or commissions where defendant debtor is indebted to garnishee-employer, 93 A.L.R.2d 995.
Attachment and garnishment of funds in branch bank or main office of bank having branches, 12 A.L.R.3d 1088.
Issue in garnishment as triable to court or jury, 19 A.L.R.3d 1393.
Client's funds in hands of his attorney as subject of attachment or garnishment by client's creditor, 35 A.L.R.3d 1094.
Garnishment of funds payable under building and construction contract, 16 A.L.R.5th 548.
Wrongful discharge: employer's liability under state law for discharge of employee based on garnishment order against wages, 41 A.L.R.5th 31.
Joint bank account as subject to attachment, garnishment, or execution by creditor of one joint depositor, 86 A.L.R.5th 527.
Modern views as to validity, under Federal Constitution, of state prejudgment attachment, garnishment and replevin procedures, distraint procedures under landlords' or innkeepers' lien statutes, and like procedures authorizing summary seizure of property, 18 A.L.R. Fed. 223, 29 A.L.R. Fed. 418.
38 C.J.S. Garnishment §§ 71 et seq., 149 et seq.; 51 C.J.S. Justices of the Peace § 78(3).